Eight Antitrust Reform Ideas for the Republican Trifecta

L ast month, Donald Trump pulled off one of the greatest political comebacks in American history by becoming the second-ever former president to win a nonconsecutive term. Republicans also flipped the Senate and defended their majority in the House of Representatives. Roughly two-thirds of voters described the economy as not good or poor, a clear mandate for Republicans to turn the page on the failed Biden-Harris economic regime.

As with other areas of the law, the Biden-Harris administration routinely weaponized antitrust enforcement to pick economic winners and losers. Federal Trade Commission chairwoman Lina Khan and Assistant Attorney General Jonathan Kanter had one goal: putting American companies and industries that progressives disfavor in a “Mother-May-I” relationship with unelected bureaucrats. Republicans should capitalize on their governmental trifecta by reining in the antitrust agencies to prevent abuse from future progressive administrations.

Below are eight suggestions for antitrust reform in the 119th Congress.

1. Codify a consumer-focused standard of antitrust review. Before the 1970s, judges and bureaucrats often wielded antitrust against companies to impose their preferred outcomes over market forces. Antitrust enforcement under the Biden-Harris administration has resembled the early days of antitrust law, with the FTC and DOJ suing to block pro-competitive mergers and break up America’s crown jewel companies. Codifying a consumer-focused standard into law would ensure that antitrust enforcement is limited to policing business practices that harm consumers through measurable effects like price, quality, innovation, and output. While some on the Right have suggested that business activity that affects “human flourishing” or political influence should be an antitrust violation, injecting nebulous factors in a consumer-focused standard would be a mistake. Lawmakers should guard against future progressive weaponization of antitrust law by defining consumer harm as narrowly, objectively, and measurably as possible.
2. Ensure FTC commissioners leave the agency when their term expires. In 2021, the Senate confirmed FTC chairwoman Khan to serve out the remainder of Rohit Chopra’s term through September 25, 2024. Yet Khan still runs the FTC because the agency has no holdover statute, so Khan can stay put until her successor is nominated and confirmed. If Harris had won the election, Khan could have remained FTC chairwoman indefinitely without any input from the Senate. Congress should enact a holdover statute so future commissioners leave the agency when their term expires.

3. Clarify that Section 5 rulemaking doesn’t cover competition rulemaking. Section 5 of the Federal Trade Commission Act of 1914 bans “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” Khan has sought to use Section 5 authority beyond the FTC’s remit on rulemaking, most notably with the FTC’s rule banning noncompete agreements. Khan’s reading of Section 5 would allow her to regulate the entire economy from her perch at the FTC. Congress should restate in crystal-clear language that the FTC has no authority to engage in competition rulemaking.

4. To prevent bureaucratic shenanigans, clarify what constitutes a conflict of interest. Ethical issues marred the tenures of both FTC chairwoman Khan and Assistant Attorney General Kanter. Khan built her career in progressive circles by railing against the same companies that she sought to break up while running the FTC, ignoring the recommendation of an ethics official to recuse herself from at least one antitrust case. Before helming the Antitrust Division, Kanter was a corporate attorney, and many of his lawsuits directly benefited his former (and perhaps future) clients. Congress should ensure that conflicts of interest cover not only financial conflicts but past statements and conduct that indicate bias and an inability to have an open mind.

5. Match merger standards between FTC and DOJ. Under current law, the FTC and DOJ follow different procedures when reviewing a merger. Notably, the FTC can elect to litigate an antitrust case before the FTC’s administrative tribunal instead of in federal court. Congress should pass Senator Mike Lee’s Standard Merger and Acquisition Reviews Through Equal Rules Act (SMARTER Act) of 2020, which would reduce private sector uncertainty and promote basic fairness in antitrust enforcement by requiring the FTC follow the same merger-review process as the DOJ.

6. Conform the FTC to the Constitution by making commissioners removable. Khan’s biggest defenders (no doubt reeling from Harris’s resounding defeat) have proposed a number of convoluted, norm-busting schemes to keep Khan in power after Trump returns to the Oval Office. One harebrained plot would require Senator Schumer to ram through Khan’s renomination during the lame-duck session, locking in a Democratic majority at the FTC through 2026. Lawmakers should prevent future chicanery by explicitly allowing the president to fire commissioners.

7. Repeal the Robinson-Patman Act of 1936 (RPA). As House Speaker Mike Johnson noted in a recent press conference, Republicans have a mandate to help lower grocery prices. One way to do that is by repealing the RPA, a law that bans suppliers, wholesalers, and manufacturers from selling commodities “of like grade, quality, and quantity” to buyers at different prices. RPA has historically raised prices every time it has been enforced, which is why the DOJ stopped enforcing the law after a 1977 report detailing the law’s incoherence and failure to promote competition. Yet Khan’s FTC began probing Coca-Cola and Pepsi for RPA violations in January 2023. Just yesterday, the FTC filed an RPA case against alcohol distributor Southern Glazer’s Wine and Spirits. Congress should repeal RPA root and branch.

8. Put all antitrust enforcement under one roof. Trump campaigned on streamlining the federal government, including the establishment of a Department of Government Efficiency headed by Elon Musk and Vivek Ramaswamy. There is no reason the DOJ and FTC should split antitrust enforcement, an arrangement that wastes taxpayer resources and encourages bureaucratic turf wars. Congress should pass Senator Mike Lee’s One Agency Act, a bill that would move all civil antitrust authority from the FTC to the DOJ. Doing so would implement several of the above recommendations at once.

House and Senate Republicans have done an excellent job highlighting the excesses of the Biden-Harris antitrust regime through hearings, reports, and investigations. Republicans should capitalize on this record and deliver on their economic mandate by ensuring that future administrations cannot weaponize antitrust law to damage our economy.