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**MARCH 5, 2024**

On the Prospect website

The Intra-Democratic Battles Kick Off in California

Millionaire self-funders, dirty-trick tactics, pro-Israel and crypto
money everywhere. The ideological sparring within the party takes a back
seat to campaign shenanigans. BY DAVID DAYEN

The Corrupt Supreme Court Bails Out Trump Once More

America does not have to be ruled by an unelected council of high
priests. BY RYAN COOPER

A Feel-Good Movie That Almost Makes You Feel Bad

'The Greatest Night in Pop' is uplifting and happy-sad. It was a
more innocent time. BY ROBERT KUTTNER

The Anti-Sex League

Tom Tomorrow brings you This Modern World BY TOM TOMORROW

Dayen on TAP

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**** Congress Poised to Kneecap Antitrust
Division

Just as the White House begins to lean on competition policy,
Congress's government funding bill cuts the Antitrust Division's
budget by 20 percent.

Heading into the State of the Union address, the White House is placing
a big bet on competition policy to tackle some of the biggest challenges
in the economy. Today, the administration announced the creation of an
interagency Strike Force on Unfair and Illegal Pricing, co-chaired by
Federal Trade Commission chair Lina Khan and Justice Department
Antitrust Division head Jonathan Kanter. Together, Khan and Kanter will
coordinate efforts across the government to target companies engaged in
pricing activities that violate laws around fraudulent and deceptive
practices, or unfair methods of competition. The goal is to reduce
prices in sectors where tricks and traps are prominent, from health care
to housing to financial services.

"Competition delivers real results to real people, that's precisely
what we are doing," said Kanter on a press call on Monday. "And we're
doing it with fewer people than we had in 1979."

That last bit was a tell, a flash of frustration at a development over
the weekend, pushed by a bipartisan group of appropriators, that could
lead to a dramatic cut in the Antitrust Division's budget, precisely
at the time when the Biden administration is elevating its
work-relying on it, even-in advance of the election. While some
members of Congress are furious about it, the White House seems to be
resigned to the outcome.

As Matt Stoller first reported
,
the Senate Appropriations Committee released

its "minibus" of six full-year appropriations bills that will likely get
a vote this week. The bill would end half of a government funding
standoff that has dragged on for months in Congress.

One of the six appropriations is the "Commerce, Justice, and Science"
bill, which includes the Department of Justice. On the Senate side, Sen.
Jeanne Shaheen (D-NH) presides over it. That bill includes a $45 million
cut from Kanter's DOJ Antitrust Division, from $278 million to $233
million, leaving the agency with about a 20 percent smaller budget than
what they expected. (The appropriation will be a nominal increase,
essentially flat once adjusted for inflation, from the fiscal year 2023
appropriation of $225 million.)

Even at $278 million, DOJ Antitrust was far outstripped by corporate
giants fighting attempts to limit their power. The cut will grow the
disparity even wider. The initial Commerce, Justice, and Science
appropriation

did not have this cut. Antitrust is not mentioned in the Senate
Appropriations Committee's bill summary
.

Just on Monday, JetBlue and Spirit called off their merger

after DOJ Antitrust beat them in court, one of several wins for the
agency in recent months. More lawsuits against Apple and Ticketmaster
are expected, and the division has an open investigation against
UnitedHealthcare that was recently made public. But Shaheen's
appropriation would make it impossible for DOJ Antitrust to have the
same impact.

The budget cut is worse when considered over the long term. Congress
passed the Merger Filing Fee Modernization Act in late 2022, as part of
a different appropriations deal. That bill was supposed to allow DOJ
Antitrust to keep a portion of merger fees to compensate for periods of
high merger activity and the accumulated work of taking on corporate
power.

This was passed through a law, not through the Appropriations Committee.
And because Congress is a more (or less) evolved form of high school,
this has angered appropriations members and even their staffers, who
demand first cut on where government money goes.

As a result of this turf war, appropriators unilaterally rolled back the
law, which passed in a recorded vote overwhelmingly, 88-8, in the
Senate. The bill
(p. 264)
literally says that, "notwithstanding" the Merger Filing Fee
Modernization Act, "none of the funds credited to this account as
offsetting collections"-in other words, filing fees-"shall become
available for obligation in any fiscal year" unless through a subsequent
appropriations. So the appropriators just overwrote the law, denying DOJ
Antitrust its share of filing fees for the first time in 35 years.

That could rob hundreds of millions from DOJ Antitrust over the next
decade. An explanatory statement

on the bill makes very clear what this is about. "The agreement
recognizes the importance of predictable, sustainable funding for the
Antitrust Division, and encourages the Department to work with
Congressional committees of jurisdiction to address such challenges." In
other words, the Justice Department will have to come crawling to the
appropriators to get this fixed.

"Appropriations staffers seem to think elected officials work for them,
instead of the other way around," said Stoller, with the American
Economic Liberties Project. "Heads should roll for this wildly
inappropriate exercise of power by what are in effect ignorant,
turf-hungry technocrats."

[link removed]

The senators who worked to increase merger filing fees and DOJ Antitrust
budgets are not happy. "Diverting these fees is just wrong," said Sen.
Amy Klobuchar (D-MN), in a statement to the

**Prospect**. "We passed strongly bipartisan legislation with an 88-8
vote to ensure that the Antitrust Division at the Justice Department has
sufficient resources to vigorously enforce our antitrust laws. In an
increasingly complex world, the Division is going up against major
monopolies with unlimited legal resources, and we must even the playing
field for consumers and small businesses. I will keep fighting to ensure
our enforcers have the resources they need to do their jobs."

Sen. Elizabeth Warren (D-MA), who also strongly supported the filing fee
bill, told the

**Prospect**, "The army of lobbyists and lawyers representing Wall
Street and Big Tech is doing cartwheels about potential funding cuts for
antitrust enforcement by the Justice Department. It's powerfully
important that lawmakers immediately address this self-inflicted wound."

Other offices suggested that discussions were under way about the cut.
But it's not likely to be easy. The minibus appropriation was a
carefully negotiated compromise designed to avert a government shutdown.
Opening up any one piece will likely have to be accounted for. And since
the House must go first with federal spending bills of this type, the
best option would be to fix it there.

Attorney General Merrick Garland, when asked

by Rep. Ken Buck (R-CO) in September about "efforts in the Senate" to
cut funding for DOJ Antitrust, said that he supported the division
getting that filing fee income. But the Biden administration made little
effort to fight the change in response to questions from the

**Prospect**.

An administration official responded that the president strongly
supported funding DOJ Antitrust in its fight for free and fair
competition and lower costs, but they stressed the nominal increase in
funding over the prior year, added that all accounts were subject to
budget caps because of last summer's debt limit deal (which doesn't
explain the future limitation on DOJ Antitrust using filing fees in
years outside the caps), and that the appropriations were a compromise
to prevent a government shutdown, where neither side got everything they
wanted.

The news will come as a relief to large corporations under the
microscope of DOJ Antitrust, particularly the major tech platforms. The
Justice Department has an active case against Google in the midst of a
trial with another on the way, and a case against Apple is imminent.

Given the insular nature of the process, one well-placed appropriations
staff member, or a veteran of the committee that spun through the
revolving door, could influence a matter like this with relative ease.
"Big Tech has allies across committee offices and personal offices of
Republicans and Democrats," said Dan Geldon, former chief of staff to
Sen. Warren. "And this is an example of the reach and power they have."

Sen. Shaheen's office did not return a request for comment. The
Appropriations Committee has been telling members that they had to work
within funding constraints, and that the volatility of merger filing fee
income, and the attendant boom-and-bust impact on DOJ Antitrust's
budget, would be "undesirable."

Reps. Jerrold Nadler (D-NY), ranking Democrat on the House Judiciary
Committee, and Lou Correa (D-CA), ranking Democrat on the House
Antitrust Subcommittee, also did not respond to comment requests.

Faced with lingering public anger over high prices, the White House has
turned to competition policy for answers. "Vibrant capitalism is based
on strong competition, it's good economics and has a real impact on
affordability," said Lael Brainard, head of the White House National
Economic Council, on the press call.

In addition to the pricing strike force, today the Consumer Financial
Protection Bureau is announcing a final rule to cap late fees on credit
cards at $8, about 75 percent below the current average. CFPB is closing
a loophole that granted banks immunity from a 2009 law banning
unreasonable credit card fees. The Department of Agriculture is
finishing its Packers and Stockyards Act rule on competition and market
integrity that will crack down on deceptive contracts farmers and
ranchers sign with processors and prevent retaliation against them; the
goal is to allow competition to flourish. And the Federal Communications
Commission is issuing a proposed rule that would ban landlords from
"bulk billing" all tenants for specific broadband services without
anyone getting a choice.

The contrast is rather stark: While the administration is highlighting
competition policy actions

to lower costs, Congress-with the White House's implicit assent-is
on the verge of kneecapping one of the most important agencies in that
fight.

~ DAVID DAYEN

**Follow David Dayen on Twitter**
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