Get ready for Sherman Act Wars II: The Revenge of the Death Star. Almost four decades ago, the Department of Justice forced the breakup of AT&T in an anti-trust settlement that set the stage for an explosion of innovation in telecommunications. Now the DoJ takes aim at AT&T again, this time for an attempted acquisition that would combine production and distribution that it allowed a few years ago with Comcast’s purchase of NBC Universal. What’s changed? Well … that might just be the big question:
The Department of Justice sued Monday to block AT&T’s $85 billion bid for entertainment conglomerate Time Warner, setting the stage for one of the biggest antitrust cases to hit Washington in decades.
The move by the Justice Department’s antitrust division is unusual because it challenges a deal that would combine two different kinds of companies — a telecom with a media and entertainment company. Antitrust officials are relatively untested in the courts on opposing such deals and have rarely tried to squash them.
If successful, however, the government’s case would send a strong signal across the business world that Washington is no longer looking as kindly on such mergers.
AT&T says it will fight the lawsuit — and wants to get immediately to discovery. They feel with no small amount of justification that the Trump administration has political motives in blocking the acquisition. Someone at the White House began leaking that intent four months ago, and the sudden pressure to sell off CNN as a condition for approval only intensified that speculation. Donald Trump has conducted a months-long personal war over CNN as a purveyor of “fake news,” and the odd condition made it appear that the DoJ was being tasked with torpedoing the Time Warner sale, or perhaps even better, leaving CNN adrift to wither on the vine.
Now AT&T is betting that a federal judge will put an end to the interference and let the deal go through, especially with the Comcast acquisition as precedent. The DoJ argues that this deal is different, citing an amicus brief filed by DirecTV before AT&T acquired the satellite broadcaster:
Back then, AT&T argued that allowing Comcast to merge with NBC Universal would give the combined company the ability to use programming to hinder competition, antitrust officials said.
The Justice Department cited AT&T’s control over DirecTV, which it bought in 2015, as a reason why the current deal raised even more concerns than Comcast’s.
“We concluded [the AT&T tie-up] was even more harmful than the Comcast-NBC matter,” said a DOJ official, speaking on condition of anonymity in order to discuss internal agency deliberations.
If discovery finds correspondence exposing a more political reason for the sudden change of heart on vertical acquisitions, a judge might discount this as a rationalization — which it very well might be, even if the motive isn’t as political as AT&T believes. Even without that, though, Reuters analysts note that the DoJ faces long odds in opposing vertical integrations such as this massive AT&T acquisition:
“We are surprised at the lawsuit as there are decades of clear legal precedent on how these deals are handled,” Oppenheimer analysts wrote in a client note.
“We see a 75 percent chance AT&T wins at trial and the onus is on the DOJ to prove potential harm.” …
AT&T’s acquisition of Time Warner comes under the heading of vertical mergers – a deal between two companies that do not compete directly but operate on different steps in a supply chain.
“The last time the DoJ challenged a vertical case was in the Carter years; it was last successful under Nixon,” Nomura Instinet analyst Jeffrey Kvaal wrote in a note.
If this case falls apart because of Trump’s personal vendetta against CNN, it will be too bad — because the DoJ needs to expand its use of the Sherman Act to slow down the consolidation of corporate power. If it falls apart because of precedential weight, as Reuters predicts, then Congress needs to update the law to address vertical consolidation. If we want smaller government, we also have to fight against bigger business, as the power accumulation has a similar impact. It raises the stakes for crony capitalism, leading to an ever-larger government as politicians keep appeasing their clients.
As I argued months ago, this is a fight that should serve as a common ground to both conservatives and populists:
“A Better Deal on competition,” the agenda declares, “means that we will revisit our antitrust laws to ensure that the economic freedom of all Americans — consumers, workers, and small businesses — come before big corporations that are getting even bigger.” Democrats have campaigned on busting up “too big to fail” banks and financial institutions ever since the crash of 2008 and the Great Recession, but now they want to broaden that pledge to greater antitrust enforcement across the board. The outcome they promise is to stop mergers and acquisitions that “unfairly consolidate corporate power.”
Clearly, this is a sop to Bernie Sanders and the progressive populists that provided what energy Democrats had in 2016. It should be effective for that purpose, but the rest of the policies outlined in “A Better Deal” offer nothing more than big government as the alternative. Sanders and his progressive followers see the power of the state as the only other alternative to consolidating corporate power. Progressives in Academia and coastal enclaves see themselves as benefiting from a shift toward that end, as they presume that they will benefit from it.
That ignores a key frustration among voters outside of those cultural and political power centers, however. They feel left out and cut off from the forces that impact their lives. Trading off Big Corporation for Big Brother only escalates the problem. They can see the impact of corporate consolidations in their communities in the storefronts on Main Street and the difficulty in starting businesses that compete with chain retail and service corporations. As manufacturers consolidated, they packed up operations and moved out of these communities, and the people who lived in them had fewer and fewer choices and options. Political parties ignored those fears or sometimes outright ridiculed them.
It’s that economic, cultural, and political disconnect that fueled populism on the Right, on which Donald Trump capitalized by acknowledging and legitimizing it. Republicans took this as a culture-war opportunity, but they’re missing a large part of the problem by overlooking Main Street economics.
Republicans may feel uncomfortable taking a more aggressive policy on antitrust enforcement, but it does fit with a dedication to small government and federalism. Increasing consolidation in the marketplace concentrates economic power into fewer hands, and economic power eventually will get expressed in political terms. Our massively complicated tax codes and regulations serve as traditional vehicles for rent-seeking behaviors by corporations less interested in free markets than in squelching competition.
If the GOP truly wants to bring conservatives and populists together on economics and governance, they need a measured and assertive approach to antitrust enforcement. Populism is all about returning power to the people, while modern conservatism has limited government and subsidiarity in power at its core.
The AT&T deal should have been Ground Zero for such an effort. The fight may have been fatally compromised by a petulant attack on a media outlet when the larger battle to reduce corporate power and influence was waiting to be won. Congress will have to intervene at this point by aiming at the heart of consolidations in either horizontal or vertical form and putting an end to “too big to fail” no matter which industry it appears.