by Robert H. Lande, Venable Professor of Law, University of Baltimore School of Law
There’s an old saying, “It’s better to light a single bipartisan candle than to curse the darkness caused by your opponents.” This might not be the way most people articulate this proverb, but in Washington D. C. anyone who, like Commissioner Joshua Wright, puts so much effort into finding, developing, and promoting bipartisan agreement is a rarity indeed.
Commissioner Wright’s final accomplishment at the Commission was the agency’s Section 5 Policy Statement. It had been a high priority of his for years. In light of the fact that the Commission had gone a century without issuing anything describing its central competition mission and the wide divergence of views at the Commission on the underlying issues, many of us thought his task impossible. But he succeeded! It wasn’t the statement he wanted, of course, but his preferred statement was opposed by so many (including me) that agreement on a detailed document was not feasible. He nevertheless secured a compromise that perhaps will be the building block for a future, more detailed and even more useful document. By persevering and stressing the areas where the Commissioners agreed, he forged a historic bipartisan consensus.
Another example of Commissioner Wright’s approach is a policy recommendation he and his frequent co-author, Judge Douglas Ginsburg, developed, wrote and are promoting together with two extraordinarily unlikely co-authors: Bert Foer, the founder and past President of the American Antitrust Institute, and me, a Director of this organization. You might wonder what the four of us possibly could agree upon?
Wright & Ginsburg sent a proposed set of recommendations to the US Sentencing Commission calling upon it to make a large number of changes involving criminal antitrust penalties. At the same time Foer & Lande recommended that the Sentencing Commission implement an almost opposite list of policy changes. In fact, the dueling recommendations agreed on only one issue: Both wanted to ban corporations convicted of price fixing from hiring their cartel’s convicted employees after they were released from prison. Stressing their agreement, this unlikely quartet co-authored a piece advocating this policy option. We of course hope and believe that the politically diverse names on the recommendation will cause it to have a much greater impact than separate recommendations by either team would have had.
Because he always pushed as hard as possible for his preferred positions, he of course didn’t get everything he wanted. But he persevered and in this way forged and secured whatever agreements he could. In today’s Washington D.C. these candles are noteworthy accomplishments. Kudos to Commissioner Wright!