On the Eve of the Election, Harris, Trump Offer Diverging Visions on the Future of Antitrust and Consumer Protection Enforcement

At a Glance

• Looking to 2025 and beyond, both political parties have expressed a desire to use the FTC and the DOJ to pursue diverging political objectives.
• If Donald Trump is elected in November, some Biden-era enforcement priorities such as noncompetes and related labor issues may fall by the wayside as enforcers focus on ESG/DEI, First Amendment, and child protection/parental rights issues.
• While some commentators have observed that Harris herself has been mostly quiet on antitrust issues, many expect her administration would take up the Biden administration’s mantle to continue targeting consolidation in healthcare, agriculture, retail, and technology industries, while also focusing on labor issues, right to repair, and price gouging.

As the 2024 presidential election approaches, the positions of Vice President Kamala Harris and former President Donald Trump on a variety of antitrust and consumer protection matters have come into focus. Over the last four years, the Biden-Harris administration has mapped out a more aggressive vision for enforcement that stretches the boundaries of traditional antitrust and consumer protection principles and uses the Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC) to pursue social and economic objectives that have not historically been within the ambit of the federal enforcers. Some notable developments have included President Biden’s 2021 Executive Order on Promoting Competition in the American Economy, the DOJ’s largely unsuccessful prosecutions of businesses and employees for no-poach and wage fixing, the sweeping revision of the merger guidelines, and substantive changes to the rules for premerger notification under the Hart-Scott-Rodino Act. In contrast, former President Trump’s administration largely focused on traditional antitrust enforcement cases, though his enforcers were occasionally accused of pursuing corporations for partisan political reasons.

Looking to 2025 and beyond, both political parties have expressed a desire to use the FTC and the DOJ to pursue diverging political objectives. For example, if Trump is elected in November, some Biden-era enforcement priorities such as noncompetes and related labor issues may fall by the wayside as antitrust enforcers focus on ESG/DEI, First Amendment, and child protection/parental rights issues.

In contrast, while some commentators have observed that Harris herself has been mostly quiet on antitrust issues, many expect her administration would take up the Biden administration’s mantle to continue targeting consolidation in health care, agriculture, retail, and technology industries, while also focusing on labor issues, right to repair, and price gouging. At the same time, business leaders are encouraged by Harris’s background as California’s attorney general and her local ties to Silicon Valley. Such a connection to the technology companies that have recently attracted federal scrutiny may foretell a more traditional approach to antitrust enforcement that retreats from the current administration’s focus on novel theories of market definition and competitive harm.

Consumer Prices

Harris and Trump do agree on one hot-button issue — consumer prices are too high. Thrust into the spotlight by complaints regarding increasing grocery prices (up 28% from 2019), price gouging occurs when businesses increase the prices of their products or services to levels beyond those deemed fair and reasonable, typically following an emergency. Price gouging is not a technical antitrust violation under traditional principles — it does not require collusive or exclusionary conduct, just the unilateral pricing decision of one ambitious actor.  However, its effects are amplified in markets with high levels of concentration and significant barriers to entry where new entrants cannot sweep in to take advantage of (and ultimately dilute) soaring margins.

Recently, Harris announced that, if elected , she would work with Congress to pass a federal bill banning price gouging. The plan would “include new penalties for opportunistic companies that exploit crises and break the rules” and provide “support [for] smaller food businesses that are trying to play by the rules and get ahead.” A collective of senators including Elizabeth Warren (D-Mass.) and Bob Casey (D-Pa.) introduced a similar bill this year entitled the Price Gouging Prevention Act of 2024, stating: “The proposed bill would clarify that price gouging is an unfair and deceptive practice under [Section 5 of] the FTC Act.” The bill has been stalled in Congress following GOP opposition.

Price gouging law largely consists of a patchwork of differing state statutes and regulations.  But on October 30, 2024, a group of attorneys general from fifteen states and the District of Columbia sent a letter to Congress urging lawmakers to adopt a federal price gouging ban setting temporary limits for sellers’ profit margins during an emergency. Such limits, state law enforcers argue, have the benefit of encouraging sellers of essential goods to increase supply to meet demand during crises because they are not prohibited from increasing prices to match (but not exceed) rising production costs.

Critics of a federal price gouging ban say that any deterrent effects will need time to trickle down to the average American consumer and that similar plans have been tested and failed in other countries, including Venezuela, Argentina and the Soviet Union. In contrast, supporters like Senators Warren and Casey and state law enforcers argue that a well-crafted federal ban could be effective and distinguish between a price gouging law, which targets corporations engaging in unfair conduct, and strict price controls that tend to result in negative supply shocks. They argue that similar measures already exist in more than 40 states, although the exact details differ (some laws require an “emergency” as a prerequisite whereas others are constantly in play; some are limited to “essentials” and others cover all consumer goods). If Harris adopted appropriately nuanced price gouging legislation and/or empowered the FTC to adopt related rules that prohibited excessive price hikes on essentials similar to price gouging laws in both red and blue states, such a law and/or rule would set a minimum threshold for exploitive pricing conduct across all 50 states. Notably, however, it is unlikely federal legislation or FTC rulemaking would preempt state enforcement of existing price gouging laws if those laws were more onerous than the federal law, so it would be important for entities conducting business nationwide to familiarize themselves with at least the strictest state laws and comply accordingly. Unlike state laws, a national price gouging ban could target multi-state activity and national supply chains that are beyond the reach of individual state enforcers.

Instead of blaming businesses, Trump has proposed traditional “trickle down” economic plans that aim to provide consumers relief by lowering the cost of doing business. This includes lowering energy costs and taxes, and eliminating unnecessarily burdensome regulatory hurdles, which Trump says will lower production costs for agriculture and result in decreased consumer prices. But some of these costs are driven by global, rather than national, factors, including the ongoing war in Ukraine (a key global producer of grains and sunflower oil). In addition, critics say this plan fails to account for the fact that the United States is currently producing oil and gas at previously unseen rates. Trump’s plan to slash prices across the board also might have the unintended effect of causing widespread deflation and stalling the economy.

Corporate Consolidation and Control

Under President Biden, the DOJ and the FTC brought 24 merger enforcement challenges in 2022 and 28 in 2020, the two highest totals in the last decade, in an effort to stem the tide of corporate consolidation across key sectors of the economy.

Though Trump’s presidency generally did leave more room for consolidation, his antitrust enforcers also targeted market power in big tech, bringing suit against Google and Facebook on the basis that the companies created illegal and anticompetitive monopolies on their respective online search and social market platforms. Commentators have posited that these enforcement actions were not motivated by traditional antitrust principles regarding exclusionary conduct by monopolists so much as they were intended to further an agenda against “woke corporations.” On the other hand, Trump has always positioned himself as an everyman. As American consumers become more concerned about increased consolidation in the country’s most significant industries, it is possible that the priorities of a Trump administration would shift too.

The dominant view is that Harris will continue to prioritize the merger crackdown begun under President Biden, but her specific policies on the topic to this point have been generalized and vague. Economists and political strategists suggest this is an intentional framing to help her retain the support of Wall Street and other businesses, especially because of her departure from Trump on the issue of corporate tax cuts. However, Harris has publicly stated her support for the largely popular efforts by the FTC to enjoin the Kroger-Albertsons merger, which may be effective in retaining the popular stance on the merger issue while cabining it in the context of an issue — grocery prices — that is largely bipartisan. 

In any event, antitrust enforcers from either administration will benefit from the heightened disclosure requirements in the new premerger notification rules under the Hart-Scott-Rodino Act, which were unanimously approved by both Republican and Democratic FTC commissioners in October. The new rules are anticipated to take effect in early 2025, shortly after the new president is inaugurated, and are intended to provide the DOJ and the FTC with additional information early in the merger review process to help them identify potentially anticompetitive transactions. 

Project 2025 and the Role of the FTC

Hanging over any potential Trump administration agenda is Project 2025, a wide-ranging conservative policy compilation first published by the Heritage Foundation in 2022. It is a collection of guidance, developed by over one hundred former Trump staffers and other influential conservatives, for how a new Republican administration could retool the American government to support a conservative agenda. In recent months, the former president has made efforts to distance himself from the document.

Project 2025’s FTC Chapter is demonstrative of a wider intent to severely curtail the power of independent agencies such as the FTC, the Department of Homeland Security, and the Consumer Financial Protection Bureau, or, even, to cause them to cease existing altogether. The chapter paints the FTC as a political tool rather than an unbiased enforcement agency focused on competition, arguing that corporate consciousness has no place in business.  In particular, the author states that “[t]he business of American business is business, not ideology . . . Managers . . . who use their power to advance sets of fashionable moral beliefs, such as ESG/DEI, . . . appropriate corporate wealth for their own benefit.” It attacks the FTC as unaccountable to the president or the American people because its commissioners are not removable at will, opining that “its authority [should] be returned to the states and other democratically accountable political institutions.” A group of 12 Republican state attorneys general recently made this argument in support of Kroger’s lawsuit, alleging that the FTC’s in-house judges are unconstitutional and sit in violation of separation of powers principles.

Rather than recognizing the FTC’s role in decreasing market consolidation, Project 2025 shifts the blame to the government and the perceived extreme costs required to comply with over-regulation. This level of oversight, it claims, stifles competition and innovation and captures resources that could be better spent protecting the public. In a September 19 House hearing on the FTC’s practices, Republican congressmembers unleashed on FTC Chair Lina Khan, noting that the FTC has emphasized “legal theories and gotcha schemes,” and accused Chair Khan of seeking increased political power to advance her own political agenda rather than strictly adhering to the FTC’s mission. Commenting on Khan-led edits to the FTC’s mission statement, as outlined in its Strategic Plan for Fiscal Years 2022-2026, Rep. Cathy McMorris Rodgers (R-Wash.) stated: “by removing ‘without unduly burdening legitimate business activity’ from its mission, the commission has sent a clear message that it wants to be feared instead of being a good-faith regulator.” The removal, she argued, indicates that the FTC now wishes to regulate without consideration for business objectives in favor of promoting its own agenda.

What is missing from Project 2025 is a plan to replace the FTC or limit its power only to its regulatory role. It remains to be seen how anti-regulation goals would play out or what businesses might do once unshackled and unrestrained. It is possible that decisions on enforcement would be sent back to the states. Randy Stutz, president of American Antitrust Institute, opined earlier this year on increased bipartisan momentum aimed at protecting local economies, noting that “[s]tates can and have played a historically critical role: when federal enforcement has wavered state and private enforcement can fill the void.” What seems clear is that a potential Trump victory in November would at least minimize the FTC’s footprint and return “its authority. . . to the states and other democratically accountable political institutions,” in support of the “earnest[] hope” that “[the FTC] can be greatly curtailed if not eliminated.”

And while some conservatives may ultimately prefer a federal government without an FTC, Project 2025 nonetheless advocates that, “until there is a return to a constitutional structure that the Founding Fathers would have recognized and a massive shrinking of the administrative state, conservatives cannot unilaterally disarm and fail to use the power of government to further a conservative agenda.” Therefore, at least in the short term, we would expect a potential Trump administration to replace Chair Khan with an equally partisan conservative leader that leverages the power of the agency to advance the Republican agenda, including fighting corporate ESG/DEI initiatives, protecting parents’ right to control their children’s online experiences, and ending Internet censorship of conservative news and ideas.

In Conclusion

The antitrust and consumer protection laws are nuanced and complex, and they are likely to continue evolving when the country inaugurates a new president in the coming months. As the legal and political landscapes continue to develop, companies should work with experienced counsel to assess the current state of the antitrust and consumer protection laws, rules and regulations and pursue their business initiatives with consideration for the political objectives of the new administration.