Mr. Calvani also has extensive experience in public- and private-sector competition law. He served as a Commissioner of the US Federal Trade Commission from 1983 to 1990, including a stint as its head. He also sat on the board of the Irish Competition Authority, where he held the criminal investigations and mergers portfolios. During that period, he was an active member of advisory committees for the EU Competition Directorate. Mr. Calvani is now a Senior Advisor at Brunswick Group.
Their conversation took place over Zoom, days before the DOJ suit against Google. But within hours of that suit being filed, Mr. Baer was quoted in the New York Times.
“It's the most newsworthy monopolization action brought by the government since the Microsoft case in the late ’90s,” said Bill Baer, a former chief of the Justice Department’s antitrust division, told the Times. “It’s significant in that the government believes that a highly successful tech platform has engaged in conduct that maintains its monopoly power unlawfully, and as a result injures consumers and competition.”
So, what does it sound like when two antitrust experts talk shop? Let’s just say, footnotes required.
CALVANI: Good morning, Bill. How are you?
BAER: We’re doing great. I'm in the dining room that we've been privileged to have you visit on occasion.
CALVANI: I thought you'd be in Montana.
BAER: We got out there for three weeks, and came back over Labor Day weekend, just before infections started to peak. It's pretty bad back out there right now.
CALVANI: That's surprising. It's sparsely populated.
BAER: I think you can trace it to the weather getting colder, people being inside more, people impatient with being in lockdown mode. People going to the bars. And it's really hard to drink a beer with a mask on, I've found. (LAUGH)
CALVANI: Having led the antitrust enforcement agencies and managed one of the best competition law firms in the world, how do you like being a policy person at Brookings? Do you miss being in the center of the action?
BAER: Terry, I think you and I share the view that the opportunity to do public service is extraordinarily rewarding. Since my days as a junior lawyer, I’ve jumped at every chance to work in the government.
I never previously had considered doing an academic-type stint. But late this past fall, Brookings called. They told me that they haven't had somebody in the antitrust space for a while and said, "Why don't you come on over?"
My first thought was, I'm not an academic. I'm the one who gets assigned a project and figures out how to build the bridge someone else designed. But it was an intriguing opportunity. It would get me out of my comfort zone, which is a good thing to do every once in a while. And, frankly, I just could not pass up the chance to take that kind of a pay cut.
CALVANI: Let’s turn to the topic on everyone's mind, the election and what happens afterwards. How do you think competition law enforcement in a Biden administration would differ from that of the current administration?
BAER: I think we would return to normalcy. By that, I mean White House interference with the antitrust agencies would halt immediately. I've never seen anything comparable to what's going on in this White House and with this attorney general—at least not since the Nixon years.
That the President of the United States would call the Chairman of Federal Trade Commission into the Oval Office and direct him to use Section 5 of the FTC Act[i] against alleged tech platform bias against conservative viewpoints—and when the Chairman says that that would go too far, the President directs him to do it anyway, and then publicly embarrasses him by interviewing replacement candidates—is clearly an improper use of the power of the president.
That Attorney General Barr would direct the antitrust division to open 10 separate investigations into acquisitions or combinations of small marijuana producers simply because he doesn’t like their business is unprecedented. And it's a misuse of law enforcement resources. Something we haven't seen in the antitrust sector.
So first and foremost, we would get back to the rule of law and not rule by political whim. I respect some of this government’s substantive antitrust actions, but other policies have elevated intellectual property rights over antitrust injury in ways that don't make sense and allowed large corporate price fixers to avoid responsibility for their misconduct.
The administration’s effort to publicly announce an investigation into the State of California's settlement with auto manufacturers over emissions controls showed blatant disregard for Noerr-Pennington[ii] and the state action doctrine. Doing this publicly made it transparent that this was an effort to use antitrust laws to achieve non-antitrust ends.
Under a Biden administration, that would stop. There would be a different direction, first and foremost to insulate law enforcement decision-making from political interference. That's really key to restoring public trust in the integrity of how the antitrust laws are enforced.
CALVANI: The Democratic antitrust bench is in my view a very broad one, running all the way from those who self-identify as very progressive to people who are not yet ready to throw the consumer welfare model[iii] in the trash bin. Where do you think the needle will fall in terms of agency leadership in a Biden administration?
BAER: I'm getting asked that question a lot. And I've learned over the years not to speculate about people or philosophical approaches. But on the appropriate role of antitrust enforcement, the notion that views within the Democratic Party are too divergent to come to a common ground is wrong.
Look at the task force that (Independent Senator) Bernie Sanders and Vice President Biden put together to address how they would approach the Democratic platform and substantive policy. They talk a lot about competition. They talk a lot about economic justice, about appropriate use of the antitrust laws, about behavior that restricts wages, prevents freedom of movement for labor from one job to the next, including non-competes and do-not-poach agreements.
There's a lot of commonality there. And I think there is commonality as well on the notion that our antitrust laws as interpreted today by the courts have allowed highly concentrated, dominant firms to engage in practices that ought to be prohibited.
I think a Biden-led administration would find commonality with some really smart leaders in the House and the Senate. I am referring to, among others, David Cicilline, who chairs the Antitrust Subcommittee and (Democratic Senator) Amy Klobuchar, who works well with the current chair of the Senate Antitrust Subcommittee, (Republican Senator) Mike Lee. I think there’s potential for there to be some legislative action early on in a new administration, assuming Joe Biden and Kamala Harris win and assuming the Senate is Democratic.