“We have a data problem,” Keith Ellison says. He’s talking about mergers, like yesterday’s proposed purchase of Aetna by CVS, or this summer’s between Amazon and Whole Foods. “We don’t collect and have enough information that will help do the evaluation as to whether or not a given merger that takes place actually yielded the benefits that were promised.” So the Minnesota Democrat and co-chair of the DNC is going to try to fix that — along with the newly formed Congressional Antitrust Caucus.
A new House bill Ellison is introducing today would require the Federal Trade Commission and Department of Justice to conduct annual retrospective studies of how mergers impact prices, jobs, wages, and local economies. Right now, “the sole question regulators ask is whether a merger will be beneficial for consumers in terms of more choice, better quality products, or lower prices,” a legacy of legendary federal judge Robert Bork’s philosophy on antitrust, said Democratic California representative Ro Khanna, a bill co-sponsor.
The problem is that mergers are likely to affect Americans in ways that go beyond their status as consumers. The studies Ellison is proposing would try to nail down what those other effects are. They’ll look at details including changes in salary and benefits for the top one percent, median and lowest-paid 10 percent of employees at merged companies; layoffs that followed the merger; closure of facilities; and changes in contractual terms for employees like noncompete agreements. While price to consumers would still be one of the metrics the study considers, Khanna says, “we believe other impacts of mergers also need to be considered.”
Recent mergers that would qualify for study include Amazon’s purchase of Whole Foods, Walgreens’ purchase of its competitor Rite Aid, and the merging of chemical companies Dow and DuPont, which also make chemical-resistant genetically modified seeds. Mergers that occurred no earlier than three years before the bill’s passage, if it becomes law, will be considered.
The Merger Retrospective Act is the first bill to come out of the nascent “Antitrust Caucus” — a group that includes, besides Ellison and Khanna, Democratic representatives David Cicilline of Rhode Island, Mark Pocan of Wisconsin, and Rick Nolan of Minnesota, all of whom co-sponsored the bill along with Washington’s Pramila Jayapal.
While the bill — and the Antitrust Caucus — would bring a new scrutiny to the impacts of corporate consolidation, it’s not as though the effects of mergers and increasing concentration have gone completely unnoticed. Airline mergers during the Obama administration left four companies in control of 80 percent of the airline market, eroding the sort of competition that would push airline companies to offer more routes and lower ticket prices. A 2016 ProPublica exposé of the 2013 merger between American and US Airways mentioned by way of example that while fuel prices declined as much as 70 percent between 2014 and 2015, U.S. airline fares went down only 4 percent, and the newly combined American Airlines increased fees. The Justice Department launched a probe in 2015 into whether airlines were colluding to restrict seating, which could make it easier for them to hike fares, but reportedly didn’t find evidence to support an antitrust case.
And then, of course, there’s the tech industry. Facebook’s acquisitions of WhatsApp in 2014 and Instagram in 2012 — effectively snapping up two potential competitors before either had the chance to actually take on Facebook — have also raised concerns around how concentration hurts consumers. European regulators are investigating Facebook over plans to merge Facebook and WhatsApp data after the company previously said it wouldn’t, and have accused the company of abusing its dominance as a platform to bully users into accepting terms that violate their privacy.
The bill requires retrospectives on at least five major mergers each year, no more than three years after the mergers occurred or three years after the effective date of the act, and gives the FTC and Justice Department the authority to request relevant data from companies. Businesses that refuse to hand over data would be fined $40,654 per day, or $14.8 million annually, adjusted for inflation, until they complied.
That’s a steep fine, but, irony of ironies, the enormous corporate wealth that has compelled interest in antitrust law likely also gives companies plenty of room to ignore the data demand. Large corporations that have grown rapidly thanks to mergers might decide the expense of a fine is worth it, and prefer to just take the hit rather than grease the wheels for future trust-busting. For some, the $14.8 million annual fine wouldn’t be the end of the world. By way of example, it amounts to less than one percent of the $2.4 billion in profit Amazon made in 2016, on $136 billion in sales. Amazon CEO Jeff Bezos has a net worth of $100 billion, which is around 6,700 times the annual fine. Hypothetically, Bezos himself — an individual human being — could pay it.
So what would the point be, exactly? “Look at it like this: We’re not doing anything right now,” said Ellison. “We’re going to do the best we can, in the political environment we’re in. We have a long term goal of protecting American markets, workers, and local communities.” In other words, if all you can do is make noise, you might as well make noise.
He said he and colleagues have plans to propose more legislation, and that if this bill passes they can still make future efforts to strengthen it. “One of the things we’re trying to do is to gain greater awareness,” he said. “People want to figure out, why is the American middle class stagnating and shrinking, at a time when the stock market is going through the roof? Well, because we’re not part of it, actually, you know?”
