Editors' Pick: Originally published Jan. 27.
Former Federal Trade Commission Chairman Bill Kovacic on Tuesday delivered a surprising assessment of the four top presidential candidates' campaign trail statements on antitrust. His remarks were made during a program by the conservative Heritage Foundation in Washington examining how the next administration will tackle antitrust issues.
According to Kovacic's analysis, Hillary Clinton has mischaracterized the state of consolidation and antitrust in order to argue that she will pursue a tougher policy against concentration in key industries. Ted Cruz wasn't always the enemy of regulation that the Texas senator has painted himself to be. Bernie Sanders has offered up a standard left-of-center critique of current antitrust practice. And Donald Trump is the only candidate in recent memory to have been a plaintiff in an antitrust case.
Kovacic, FTC chairman from 2008 to 2009 and currently a professor at the George Washington University Law School, has played a key role in developing antitrust policy since his time as a student at Columbia Law School in 1978. He has served as a congressional staffer, lawyer in private practice and had several stints in government in between long periods as a law professor specializing in antitrust and government contracts.
Kovacic conceded that the candidates' few remarks on antitrust provide just enough material for him to make "nascent observations" about how they will conduct competition policy.
"I want to look not just at their comments but at their experience to gauge what they might do," he told the Heritage audience.
At first glance, the candidates seem to have plenty of complaints about how antitrust laws are enforced. "When you comb through all their statements today, none of them has come forth with a robust endorsement of the enforcement status quo," he said.
Kovacic, who was named to a Republican seat on the FTC in 2006 and was the last chairman of the George W. Bush administration, said Clinton in her campaign statements has incorrectly depicted antitrust enforcement as weak. Specifically, he criticized her campaign for allowing her to mischaracterize the state of the FTC's efforts to rein in "pay-for-delay" settlements in which makers of brand-name drugs coming off patent pay generic companies to drop patent challenges and delay the launch of a copycat drugs. The Supreme Court has ruled that pay-for-delay deals are not, on their face, anticompetitive and that regulators and the courts must look at the merits of each case individually.
Kovacic said that Democratic contender Clinton promised to "take steps to stop corporate concentration in any industry where it is unfairly limiting competition." He took particular issue with this quote attributed to her during a stump speech: "Right now it's perfectly legal for a pharmaceutical company to pay a competitor to keep a generic drug off the market."
The former commission chairman said, "You wonder who writes this. It's not perfectly legal."