As President Obama and Mitt Romney refine their stump speeches and debate their visions for America’s future, antitrust lawyers and corporate executives will and should consider the antitrust policies and agendas of the two presidential candidates. While it seems unlikely that Obama and Romney will directly address antitrust enforcement in this month’s televised debates, their respective positions on the matter will have enormous implications for corporate America over the next four years. This article examines the known or unknown antitrust policies and agendas of Obama and Romney.

Obama

During his 2008 presidential campaign, in a statement prepared in response to an open letter from the American Antitrust Institute, an independent Washington-based nonprofit education, research and advocacy organization, Obama vowed to break from what he dubbed the “weakest record of antitrust enforcement of any administration in the last half-century.” Indeed, not long after Obama was confirmed, Justice Department officials withdrew the Bush administration’s report on monopolization offenses. Christine Varney, then assistant attorney general for the DOJ’s Antitrust Division, criticized the “passive monitoring of market participants” and declared that “the Obama administration has pledged broad reforms across numerous industries, including banking, health care, energy, telecommunications and transportation,” and that “the Antitrust Division will need to contribute our experience and expertise to these reform efforts.” Varney’s ambitious agenda was captured best when she proclaimed that “antitrust must be among the frontline issues in the government’s broader response to the distressed economy.” Given these early indications, it was widely believed that Obama would spark a significant uptick in antitrust enforcement and merger review.

Four years later, some of Obama’s critics argue that his administration has fallen short of both the promises made and the rhetoric used during his campaign and the early days of his presidency. Others note that, despite the symbolic act of discarding the Bush-era monopoly guidelines, the DOJ has brought only one action under Section 2 of the Sherman Act. Some are disappointed that the FTC has been unable to successfully push the boundaries of a Section 5 claim.

Regardless of whether Obama has met stated and perceived goals from four years ago, his administration will have obtained more than $810 million from criminal antitrust offenders during the first nine months of 2012. However, 95 percent of the DOJ’s criminal fines in 2012 have resulted from five corporate plea agreements involving price-fixing of auto parts. Also of note, the Antitrust Division is on track to secure a greater number of prison sentences and an overall increase in sentence length from 2011.

Many consumer advocates have also heralded the Obama administration’s role in derailing AT&T’s $39 billion attempt to acquire T-Mobile USA. Additionally, the DOJ won its first merger trial since 2004, stopping H&R Block’s acquisition of TaxACT. Of further importance was the settlement of the DOJ’s antitrust lawsuit challenging rules that prevent merchants from providing consumers with cost-saving options such as discounts or rewards for less expensive forms of payment.

Romney

To date, Romney has made no definitive statement regarding his views on antitrust enforcement. On April 3, the American Antitrust Institute sent an open letter to Romney, as it has done in the past to other presidential candidates, seeking his views on the role of antitrust in the United States and world economy. Romney has not responded to the invitation to share his views. While certainly not a requirement, Romney’s decision not to respond to AAI’s open letter is inconsistent with both his Republican predecessors, John McCain and George W. Bush, and at odds with Obama’s thorough response to the AAI during the 2008 election. It appears that Romney has said nothing publicly on the role of antitrust laws and enforcement if he were to be elected president. Nor are there any tea leaves to read from when Romney was governor of Massachusetts. Nothing of antitrust note happened on his watch then that he commented on.

Because Romney has not issued any substantive statement regarding his antitrust views, one could try to fill the void by inferring that his pro-business stance would naturally lead to a practical, laissez-faire approach to antitrust enforcement and merger review, as was the case with Bush. While not without logical appeal, this conclusion is perhaps overly simplistic. As a general matter, Romney says he disfavors regulation. For example, his campaign website promises that, “a Romney administration will act swiftly to tear down the vast edifice of regulations the Obama administration has imposed on the economy. It will also seek to make structural changes to the federal bureaucracy that ensure economic growth remains front and center when regulatory decisions are made.” Furthermore, Romney promises to “reform the legal liability system to prevent spurious litigation.” While neither of these statements should be held out as Romney’s antitrust agenda, they might suggest that Romney disfavors government-initiated lawsuits and regulations and their potentially draining effect on businesses and the economy at large.

On the other hand, Romney has been critical of countries that fail to protect American products and businesses abroad. In fact, Romney recently said that China has “cheated” by gaming trade regulations. He has also been critical of China’s currency devaluation and counterfeiting of American products. Accordingly, in looking to protect American economic interests, Romney, one could argue, may be a strong advocate for enforcing competition laws abroad, as well as domestically when foreign corporations engage in anti-competitive conduct harming American companies and consumers.

While Romney has not commented directly on antitrust enforcement, he has made some personnel decisions that should be noted. First and foremost, Romney appointed Robert Bork as the co-chair of his campaign’s justice advisory committee. Bork is a controversial figure — lauded by many conservatives as the “original originalist” and questioned by many liberals for, among other things, criticizing the Civil Rights Act of 1964 and arguing that the Equal Protection Clause does not extend to gender. In 1987, Bork’s nomination to the U.S. Supreme Court was rejected by the Senate in a 58-42 vote, the largest margin in history.

Bork is, however, recognized as one of the foremost antitrust scholars. His seminal work, The Antitrust Paradox, published in 1978 and updated in 1993, ignited a paradigm shift in antitrust theory, arguing that the legislative history of antitrust laws and economic efficiency requires that antitrust analysis focus on consumer welfare and the protection of competition rather than competitors. In his well-known article, “Legislative Intent and the Policy of the Sherman Act,” he explained “that existing [antitrust] statutes can be legitimately interpreted only according to the canons of consumer welfare, defined as minimizing restrictions of output and permitting efficiency, however gained, to have its way.”

At this point, it is difficult to know how much, if any, influence Bork would have on Romney’s antitrust policies or whether he would serve in the Romney administration. In so considering, it is important to note that while Bork’s antitrust theories were novel in the late 1970s and early 1980s, many have since become mainstream. As legal scholar George Priest noted, “virtually all would agree that the Supreme Court, in its change of direction of antitrust law beginning in the late 1970s, drew principally from Judge Bork’s book both for guidance and support of its new consumer welfare basis for antitrust doctrine.” Even Bork’s critics recognize that his views, even if incorrect, are not new. As Zephyr Teachout, an associate professor at Fordham Law School, wrote, “The spirit of antitrust has been eviscerated over decades by people like Robert Bork, who argued that antitrust had to be about ‘efficiency,’ as if efficiency was a nonpolitical, objective idea we all might measure.”

More recently, Bork criticized the FTC’s ongoing investigation into whether Google unfairly ranks search results to favor its own businesses and, in doing so, allegedly increases advertising rates for competitors. In an op-ed article published in The Chicago Tribune, Bork, who is also a Google legal adviser, argued that “it is hard to see how anything that Google does in search algorithms is unfair. Google bases its business on developing algorithms that facilitate consumer searches. Its competitors do the same thing. Google is just more effective.”

Charles Black, a Republican strategist and also an adviser to Romney, criticized the same investigation at an event co-sponsored by Google. Black has been quoted as saying that “phony antitrust suits that are completely unnecessary are a distraction.”

On the other hand, one should take note of Obama’s latest nomination to the FTC, Joshua Wright. Wright, a law school professor at George Mason University, as well as an economist and a Republican, has repeatedly questioned the merits of the Google inquiry in blog posts and in an article titled, “Google and the Limits of Antitrust: The Case Against the Antitrust Case Against Google.” In the article, Wright argues that the case could “chill the innovation and competition currently providing immense benefits to consumers.”

In his first campaign, Obama stated in no equivocal terms that his goal was to aggressively enforce antitrust laws. While some argue that Obama did not achieve all that he set out to do, it is clear that if re-elected, he would continue his pursuit to stiffen antitrust enforcement. Joseph Wayland, the head of the DOJ’s Antitrust Division, stated only two weeks ago that “we are prepared to go to court to block mergers that may substantially lessen competition, to prevent anti-competitive practices and to prosecute those who engage in price-fixing and bid rigging. And when we file a lawsuit, we litigate to win.”

In contrast, Romney has yet to comment specifically about his antitrust agenda. As such, it would be nothing more than an educated guess to surmise that he would drastically curtail current enforcement efforts at the DOJ or FTC, even price-fixing and bid-rigging, because he is perceived as “pro-business.” After all, the very purpose of antitrust laws is to protect fair competition and foster a climate for businesses to flourish. In fact, in 1958, Romney’s father, George Romney, then the president of American Motors, testified in front of the Senate Subcommittee on Antitrust and Monopoly and stated that “the antitrust laws have served a useful purpose in developing our economy and prohibiting unfair methods of competition and unreasonable restraints on trade.” Interestingly, George Romney went on to argue that “an increase in business mergers resulting in a decline in the number of separate firms in most basic industries has increased economic concentration of industrial power,” and he lobbied from the driver’s seat of smaller competitor American Motors for strengthening antitrust laws in order to encourage more competition among the nation’s car manufacturers.

At the end of the day, the simple fact is that Mitt Romney has not yet articulated his views on antitrust enforcement and frankly should do so, because Obama has made his antitrust agenda clear by the actions of his administration over the past four years. Stay tuned. •

Carl W. Hittinger is the chairman of DLA Piper’s litigation group in Philadelphia, where he concentrates his practice in complex commercial trial and appellate litigation with a particular emphasis on antitrust and unfair competition matters. He can be reached at 215-656-2449 or carl.hittinger@dlapiper.com.

Terry Smith is an associate in the firm’s Philadelphia office, where he concentrates his practice on complex commercial litigation. He can be reached at 215-656-2477 or terry.smith@dlapiper.com.