Hill Antitrust Oversight Believed Often To Come Down to Personality
As telecom consolidation proposals abound, one constant presence is lawmakers on Capitol Hill ready to scrutinize proposed mergers and acquisitions, despite lacking authority to approve or deny. One House member and former antitrust staffers told us of the balance between Judiciary committee members taking the lead in reviewing deals and those on Commerce, who sometimes also have an interest in proposed deals. Personality of individual lawmakers was seen as one highly influential factor in this relatively bipartisan oversight environment where little has changed institutionally, despite much M&A activity in recent years.
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“That is where the thoroughness and preparation comes in,” House Judiciary Antitrust Subcommittee Chairman Tom Marino, R-Pa., told us in a statement about the intense amount of consolidation proposed in the telecom space. “An increase in proposals necessitates how the committee researches, processes and conducts business related to each proposal. There is no template per se but we certainly have a good collaborative process down and it works. Some say work in Congress is always intensely partisan and volatile. This is one space where we stick to the facts and keep things strictly professional. I hope to keep it that way.”
“I don’t think that’s really changed,” said Seth Bloom, a Democrat who spent years as the Senate Judiciary Antitrust Subcommittee general counsel, of the balance between Judiciary and Commerce and the overall role of Congress. Within the Judiciary Antitrust Subcommittee, “it’s a great tradition” of bipartisanship, he recalled: “That’s a hallmark of the Antitrust Subcommittee.” Bloom left Capitol Hill in 2013 and started his own lobbying firm, which counted Comcast among clients during its unsuccessful bid to buy Time Warner Cable (see 1412230028).
That bipartisan tradition continues this year. Republican and Democratic staffers for the Senate and House subcommittees have come together for bipartisan briefings on the Charter Communications/TWC/BHN deals, they told us. No hearings have been announced in either chamber on the deal, though the Senate Antitrust Subcommittee is expected to decide in September whether to hold one.
“On the antitrust subcommittee, corporate relationships matter as much as political party,” said New America Foundation Open Technology Institute Policy Counsel Josh Stager, a former Democratic staffer who assisted Sen. Al Franken, D-Minn., on Judiciary and focused on antitrust issues. “You usually don't see an antitrust issue rise to level of a hearing if there isn't an aggrieved third party using its lobbying power.”
Marino chaired the subcommittee for 2015 and is optimistic about the politics of his subcommittee and the balance with the House Commerce Committee, he said. “A lot has changed with this new Congress but one thing I can be sure of is that my colleagues and I are interested in collaboration and implementing solutions, not being competitive with one another,” Marino said. “I see so much collaboration and open communication in this space. That is the internal viewpoint but from a higher altitude I think the politics of antitrust is not unlike the politics of anything else around here. Economic factors spark the political factors and the bureaucratic struggles. From there the balancing act begins.”
Congressional hearings on deals occur far more frequently before the Judiciary Antitrust subcommittees in both the House and Senate. Last year, Judiciary lawmakers in both chambers held hearings on Comcast/TWC, which failed to come together, and AT&T/DirecTV, which federal regulators approved. The Comcast/TWC deal earned a rare hearing before the full Senate Judiciary Committee, rather than subcommittee consideration. Lawmakers in the Commerce committees held no hearings on either deal, though Democrats on House Commerce pressured the Republican leadership to do so (see 1406120047). Both Commerce committees held hearings on Comcast’s purchase of NBCUniversal in 2010, when Democrats controlled both chambers. These bigger proposals tend to drive intense lobbying of congressional offices. Bloom, chalking up the Commerce decisions to personalities of the committee leadership, said Commerce leaders didn’t hold a hearing on AT&T’s 2011 proposed buy of T-Mobile, a high-profile proposal that ultimately never went forward.
Lawmakers on the Commerce Committee sometimes get involved for “bigger and more high-profile” deals, Bloom said. In Commerce, it depends more on the chair at hand, Bloom said: “I think a lot of it’s personality-driven.” Commerce is “more a regulatory type of committee” inclined to hold “general survey hearings” whereas Judiciary focuses on the antitrust components, he said. Reviews for big transactions begin early and companies “are smart” and typically “are trying to be cooperative” to ensure a smooth review, he said, noting no great change over time amid different consolidation proposals. Personality matters in Judiciary in addition to Commerce, former staffers said, as does political party. If the party of the administration reviewing the transaction syncs up with the party in the congressional majority, that may have influence, Bloom said.
“As with most things, leadership matters,” Stager said, noting Senate Judiciary Antitrust “underwent a pretty significant transition in 2013” when the top Democrat on the subcommittee, Sen. Herb Kohl of Wisconsin, retired. “Kohl was a steadfast overseer of antitrust issues, even getting into the weeds on overlooked matters such as" the Department of Justice's "closure of a bunch of Antitrust Division field offices,” Stager said.