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tv   Senator Amy Klobuchar to Introduce Anti- Trust Enforcement Bill  CSPAN  March 20, 2017 12:43am-2:18am EDT

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past prime minister's questions and other british affairs programs. tomorrow, fbi director james comey testifies before the house intelligence committee about russian influence in the 2016 presidential election. this is the first public hearing on the issue. c-span3 will have live coverage beginning at 10:00 a.m. eastern. you can also watch it at www.c-span.org and listen on the radio and.
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>> welcome to the center for american progress, i am the executive vice president of external affairs. i'm so delighted that you could join us today. in our recent report "reviving antitrust," it highlighted the idea that the economy has grown more consolidated with more power being concentrated in the largest firms in america. this is in no small part of the conservative assault on both government and the middle class. this assault has played out not just in the courts, but in antitrust enforcement practices of the department of justice, the federal trade commission, and at a wid range of deral regulators and in the halls of congress, where the view that big meant more efficient, has dominated for far too long. since the early 1980's, conservative legal thinking embodied in robert bork and antonin scalia, has sought to dismantle the ability of government to protect consumers, workers, small businesses, the
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environment, people of color, basically all of us ordinary folks, from the abuses of markets and large corporations. unfortunately, the trump administration is going precisely in the wrong direction. trump has appointed billionaires and ideologues to his cabinet that seek to strip the government of these tools to protect the public. he has appointed a chair of the federal communications commission that seems perfectly comfortable with rising industry consolidation and limited privacy protections. and he has nominated a supreme court justice who promotes a legal philosophy aimed at enabling even greater concentration of economic power. so what does this mean for ordinary americans? market consolidation means sky high drug prices and airline tickets. small businesses shut out of markets. lower wages. less innovation and choice.
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an even broader trends like the deindustrialization of the midwest. in fact, i don't think it's an exaggeration to say such concentration of economic power plays big role in why conservatives in congress want to pass massive tax cuts for corporations and rolled black wall street reform while ignoring communities in need like flint, michigan. that is not something ordinary americans sitting around the kitchen table want to see more of. given these threats, we need lawmakers like senator amy klobuchar, the senior senator from the state of minnesota who is speaking today, about a critical piece of this puzzle, the need for vigorous antitrust enforcement in an era of increasing market concentration. in a town like the seed that is -- in the town like washington, d.c. that is not known for its friendliness, senator klobuchar brings a refreshing dash of minnesota nice. but do not mistake her
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collegiality for softness. >> [inaudible] [laughter] >> a former county prosecutor and the first female senator from minnesota, senator klobuchar also brings an i in -- an iron range toughness to washington. the daughter of a journalist and public school teacher, senator klobuchar is a fighter for middle-class families in minnesota and across the nation. as the ranking member of the subcommittee on antitrust competition, policy, and consumer rights, the senator has long been an advocate for competitive markets that promote sustainable and robust economic growth. from railroads to drug pricing, senator klobuchar has been a fighter for lower prices, higher the quality and fairness for small businesses. we need more leaders like her in washington. please join me in welcoming the honorable senator amy klobuchar. [applause] senator klobuchar: thank you.
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we were so excited to walk in and see the sold-out crowd for antitrust discussion. my antitrust counsel said it was the best day of his life. there you go. it is wonderful to be here with all of you. thank you for your leadership, center for american progress, or for all you are doing. before i was a senator, befo i was a prosecutor for eight years, i was a lawyer. at one point early on in my career, a client that did the most work for over the years was mci. this was at a time when they were a scrappy company that was taking on the bell companies and getting into the market. eventually, when i was representing them, trying to create competition in the local markets as well. it was truly an exciting time to be representing a young, hungry company.
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mci's scrappy lawyers viewed themselves as cowboys of sorts, they were fighting for consumers and lower prices, they were taking on the local telephone monopolies across the country. one of the stories, i remember i told one of my opening arguments, at an exciting regulatory hearing, was recalling that when alexander graham bell developed the telephone, when the whole system started to work, he said those story words.his come here, watson. i need you. this is like lore of telecommunications. fast forward now to mci and the last few decades, and they were finally getting ready to connect the first communication between st. louis and chicago. one of their main guys, when this great moment occurred, he said the words, the morn day
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come here watson, i need you was -- i'll be dammed, it actually works. ok. but without antitrust law, mci would never have worked. mci took on bell operating company and at&t and ultimately broke up that monopoly. lowered long-distance prices for consumers across the country and revolutionized the telecom industry. now i know that antitrust law may not make front-page news or even capture the attention of all of our lawmakers at any one moment, but it is important stuff. it is consequential. look at the newspaper over the weekend. south korea, the president there recently impeached, based in part on allegations she participated in a bribery scheme that ordered government support of a merger. or here in the u.s., the next administration
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concluded during watergate that the best way to intimidate the nation's three major television networks was to keep the constant threat of an antitrust suit hanging over them. we all know how that ended. i think the american people intuitively understand that there is too much concentration in this country, even if they don't always describe it that way. in fact, two thirds of americans, including a majority of republicans, have come to believe that the economy unfairly favors powerful interests. even as our economy has stabilized and grown stronger, it is easy to see why people feel that way. every year i visit all 87 counties in my state. this is something that i know chuck grassley does, and chuck schumer does it. chuck schumer actually gave me the idea to start doing it. although i later found out, after years of doing this, he had an election and he won every county except his smallest one.
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he went to his chief of staff and said, i don't understand, i practically met every person in that county. the chief of staff said, that was the problem. but what i have found is that visiting all of these counties really gives me a sense of where people are in rural america, in a way that i don't think you can get by just looking at newspaper clips or talking to your staff. just in the last month, i was in 20 rural counties, at farms, everything from a gathering for a bunch of guys to a meeting in a township. i can tell you people are still struggling economically. it is hard to pay for internet, prescription drugs, hard to get that loan if they want to start something new. they want common sense solutions. that is why, when you look at
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the rural economy, that income, 50% of what it was from a few years ago. that is from the farmers union. poverty rate for kids in the rural areas is four percentage points higher than in urban areas. this is real. no one gets affected by the economic concentration more than if you areut in places that have less choices and less competition. so strengthening that rural economy, for me, needs not only doing something about prescription drugs, getting broadband out there, passing the farm bill, but it's also making sure we have actual competition, and that we vigorously enforce our antitrust law. so if you don't think that major mergers, whether it is ag or cable or health care, impact people, especially in places where there is a their margin on cost, i think those numbers i gave you is all the evidence you need.
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that is why this antitrust enforcement is so important. some people may ask, what does a strong economy have to do with antitrust? the answer is everything. let me repeat that. antitrust has everything to do with our broader economy. you have heard much of this before. when companies are allowed to compete, businesses can offer the highest quality goods for the lowest possible price. that is capitalism. but what i want to emphasize is that talking only about antitrust in the way the price is is over civil side. -- oversimplified. antitrust enforcement affes more thajust the prices of people pay for the goods they buy. we now have evidence that competition fosters small businessroh. if you just have big people dominating, it's hard to get into the market. it reduces inequality. the people most affected by these high prices are the people at the bottom of the income
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scale. so they will be most affected if you have concentration. also, you have a decrease in innovation when you have too much concentrated power. that is something i will come back to. i think it's really important. what do we see coming from the courts? in the last few decades, the supreme court cases, maybe one of our panelists can discuss that. credit suisse, legion, among others, have actually raised barriers to the pursuit of antitrust cases. so our supreme court nominee, as you know, is an expert on antitrust. i think it is more than important to pursue this in the hearings coming up, what his views are on the trend of the court and what has been happening to antitrust law in recent decades. so let's go back to why this matters. concentrated interest makes it nearly impossible for
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entrepreneurs and small business owners to compete. firms with fewer than 20 workers make up 90% of the businesses in this country. so you can imagine, if you start having all of this concentration, you will be out of theuch american economy. when there are eight or 10 competitors, this gets to the innovation argument, they will compete to innovate. they will compete to offer the next fitbit or whatever else. when you only have one or two firms, that is not going to happen. because they don't want to innovate, they are happy with the status quo. why do they want innovation? think of your cable company and the cable box. nobody likes the cable box, but for years, the cable company made no modifications and continually increased rental rates. recently, only recently, competition like apple tv and
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roku have improved the viewing experience and expanded choice. competition drives innovation. if that is too technical, how about beer? for years, there were a few dominant carriers, they sold a similar mass-market beer. we all know it. we see it in the super bowl ads. by 1978 there were fewer than 50 breweries nationwide. then across the country entrepreneurs started what we call the craft brewing revolution. by the way, where were the jobs? they were in america because they were small craft brewers, they tended to use more american ingredients, they innovated, increased choices, and improve d quality. today in my state alone we have over 70 craft brewers, more than the entire country had back in 1978. i will not go into the dirty topic that some of the big guys are now trying to buy up the
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small guys and some of the antitrust concerns and why we had our beer hearing, which was the most widely attended antitrust hearing in the history of america a few years back. what did we call it? the beerhemoth merger. we have to work hard to make this exciting. trying to make the case for you today that this is not only important but cool to talk about, because it is all about what will happen with the economy. research suggests, as i noted, concentration increases income inequality. firms with monopolies raise prices, taking money from consumers and putting in the pockets of owners and employees. the consumers who spend the money far outnumbers the employees. so we have to recognize the broader benefits of antitrust enforcement, especially today. now we are going to get to the facts of the current state. since 2008, american firms have engaged in $10 trillion in
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acquisitions. over the last five years, there was a 50% increase in mergers reviewed by the ftc and the department of justice antitrust division. there are signs of anticompetitive concentration everywhere. as former chair and ranking member of the antitrust subcommittee, i raised concerns of these my proposals during the last few years. take for example comcast's failed merger with time warner. as we pointed out in our senate hearing, if the merger was approved, the combined company would have controlled 60% of the country's high-speed content customers. or the failed merger between norfolk southern railway and canadian pacific, something i took on immediately after it was announced.
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how many railroads on the monopoly board? four. coincidence? agenciesractitioner dealing with such antitrust concern that they should have never have made it out but the corporate boardroom. there is reason for more concerned like the fact that 83% of companies that are 25% profit we stl in 2003 achieving those profit levels years later. losers should change over time in a competitive market. this should be a case in the american economy. or the fact that prices in america should be lower than other countries because the market is so large. but in general, american prices
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are not lower than in countries with smaller markets. all of this suggests that more than ever we need vigorous antitrust enforcement, especially in light of the stakes. there are new types of activities to consider as well. large institutional investors own almost 70% of the stock market. for example, the largest shareholders of apple and microsoft are blackrock and vanguard. we see this pattern in pharmacies, soft drink producers, and the banks. it is easy to see how this crop ownership can hurt consumers even many are also rightfully concerned that conditions the agencies place on mergers often fail, and that more deals must be blocked. i cannot tell you how many fake content providers in the media market and other things come to our offices. they cannot really -- they don't want to go public because they are afraid they will be screwed if they do it. but they tell us about what happens.
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a lot of these merger conditions are not being implemented. in fact, they are not getting a good deal, not able to move forward, despite the fact that some of these conditions were put on. so that is a big concern. the ftc disagrees. i'm just looking at what i see. if it is not a problem, great. but you will see the proposal i have in a little bit to create some kind of check and balance, promises made at mergers. as merger deals have grown, so often have the complexities of the settlements. we often talk about firms being too big to fail. a question from modern antitrust enforcement is whether some mergers are simply too big to fix. so here is the billion-dollar question. and i'm not using that number loosely because so many of these mergers are billion-dollar mergers. what are we going to do about this? one question is obvious. more aggressive antitrust enforcement to prevent concentration and monopolies. here's the good news, antitrust
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and competition polities are not republican or democratic issues, they are consumer issues. they have tended to be more focused on by the democratic party. i think that is important to note. i will say that mike lee and i, he is kind of a tea party background and have worked well on these issues together, painstakingly work on ideas and other things when we work with the antitrust division, and they have told us repeatedly how helpful it is for them. in fact, these are bipartisan suggestions, ideas for conditions and others. so we get down to the bad news. the federal government's commitment to antitrust enforcement has declined. our economy, in terms of nominal gdp, has increased by over 20% between 2010 and 2016. merger filings have increased by over 50%. at the same time, our antitrust
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agency budgets have been flat. because antitrust agencies are only able to litigate cases involving the most highly concentrated markets, they often cannot deal with new issues, like the one i mentioned, investment fund cross ownership of competi firms withian industry. still, these agencies are doing the best they can, and we have seen real results. in 2015, the department of justice obtained a record $3.6 billion in criminal antitrust fines. that probably surprises you. $3.6 billion in fines. the antitrust division's entire operating budget is roughly 5% of that figure. what is incredible is that the division is actually a moneymaker. if we have people that are interested in making money, this is one way to do it. the ftc has six antitrust cases in active litigation last year, including blocking staples
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proposed acquisition of office depot, and for hospital mergers. most recently, the antitrust division successfully litigated to the viewer maker mergers in the insurance industry, including anthem and cigna. the chairman and i held a subcommittee hearing on the effects of those mergers on consumers. but we need the agencies to do more, and we need the new administration to take this seriously. some might argue that president trump, who has been both a plaintiff and a defendant in antitrust lawsuits, might be one that would champion increased enforcement efforts. we hope that will be true. so here is just a little fun fact for you to take away. heas both a plaintiff and defendant. heas a platiff in the united states football league's case against the nfl. in that capacity, trump won damages. he won one dollar. it was tripled to three dollars. there is even an espn
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documentary about it. in 1988, he was on the other side. he paid a $750,000 penalty to settle claims he had failed to make required filings with the ftc and doj in connection with an acquisition of stock in holiday corp. and valley manufacturing. overall, he is in the red on antitrust litigation. during the campaign, as a candidate, his rhetoric actually echoed former president teddy roosevelt. he even talked about "too much concentration of power in the hands of too few." but now, it looks like the president is speaking a different language. i will give you just a few examples. early warning signs suggest the trump administration will appoint people who will scale back enforcement. peter theil, one of the president's close advisors, has mocked free markets, saying competition is for losers. the acting chairwoman of the ftc
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says the obama administration's more aggressive approach to competition "imposed a necessary cost on business." here is another example. in a typical administration, the enforcement decisions ofhe assistant attorney general for antitrust are made independently. the white house is typically not involved. but a meeting with the president-elect that occurred recently where the ceos of bhaer and monsanto discussed their $66 billion merger, which is currently being reviewed by the justice department. we had a hearing in judiciary on this merger and a lot of concerns were raised. after the meeting, the administration took credit for commitments the companies made to create new jobs and invest in research and development. this was an uncharacteristic discussion and raises concerns that the president may want to negotiate merger settlements
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himself. after that meeting, i specifically asked attorney general sessions if he would defend the integrity and independence of the antitrust division. he said he would and i will hold him to that commitment. that is just the beginning of congress's responsibility. chairman lee and i have developed a strong bipartisan approach to the committee. this also means holding nominees to the antitrust division in the ftc to the same high standards. i want to make one thing very clear here. it is not enough to prevent the deterioration of enforcement. in light of the broader impact of competition, the stakes are too high to only play defense. that is why i'm announcing i will introduce in the coming weeks and months a package of bills with three goals. first is a check on merger conditions. the issue i raised earlier.
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effective enforcement depends on feedback. agencies can make better enforcement decisions if they understand what has worked in the past. this much is clear. we need to give the agencies the tools to check whether their efforts have been successful. i spoke earlier about the ftc's recent merger retrospective study, but it only covers ftc settlements and it was the first study done since 1999. we have to do better. this is what i propose. a better approach would be to require parties to provide information on a yearly basis after a settlement has been reached. then agencies to review past settlements which would informed of future decisions. i believe we can improve antitrust enforcement without unduly burdening the companies that come before us for merger
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approval. second, we need better information. the ftc or the department of justice should be required to gather information about how investment ownership affects competition. congress needs this information to understand whether there is a problem and when investment fund ownership is anticompetitive or benign. third, we need to up our game. antitrust these that are paid when companies file proposed mergers for review and allow the government to exercise and pursue cases have not kept up with the times. in fact, the fee has not been adjusted since 2001. parties involved in large deals are simply not paying their fair share. for example, each party is
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currently required to pay $280,000. for a deal valued at $807 million or more. even a deal hundreds of times that size, i just used the monsanto example, are stuck at the same see. -- that same fee. i propose two simple fixes. first, while we will take into account the burden on smaller companies by not increasing their fees, the fees should increase based on gross national product for everyone that comes before the justice department. second, in an era of megadeals that reach tens or hundreds of billions of dollars, we need a new category of fees that reflects the complexities of megamergers and their serious impact on consumers. as one potential model, president obama's 2017 budget would have doubled charges for deals over $1 billion.
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even then, the changed amount would be less than 1% of the proposed value of the deal. these proposals are common sense solutions that will improve the lives of people across the country and also improve capitalism. capitalism is based on fairplay and equal competition. it is based on this idea that you want to have a vibrant system where small companies can continue to compete and come into the market. if that competition is stifled, it is not only bad for consumers and for america, it is also bad for business. so, if any of the other reasons don't work here, i hope that will. all of this can be done. it does not take a miracle, it just takes a will to support our system that we have used so well in america, a system of free markets, of checks and balance and a system where we put people first, protecting competition fixed to the basic rentable of
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economic opportunity and fairness. as i said at the beginning, our goal is to make antitrust cool again. if the administration won't do it, we will. thank you. [applause] >> laughter and antitrust. thank you very much. thank you, senator, for your remarks. the american people certainly are lucky to have an advocate like her in the senate. she spoke passionately about the growing concentration of economic power in our country and have robust antitrust enforcement can help strengthen our economy. the senator does not just talk the talk, the senator also walks the walk. it is a good reminder that we need to hold our elected officials accountable for their actions.
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one of the most important actions that trump has made so far has been to appoint judge gorsuch to the supreme court. over the years, there has been a plan to target the supreme court and now those same people and organizations are spending millions of dollars to promote gorsuch's nomination. it is not hard to see why. his legal career consisted primarily of representing large corporations. he has publicly argued that it should be harder for regular people to band together to hold wall street and huge corporations accountable for fraud and other wrongdoing. the broad question presented by this nomination is will we allow the court to become a full-fledged promoter of pro-corporate, anti-consumer, anti-small business, anti-middle-class agenda for decades into the future?
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the answer to that question is critical. will it be everyone shut out from the halls of congress and the ballot box. we at the center for american progress believe the senate should firmly reject judge gorsuch's nomination. but the gorsuch nomination is not the only topic we hope to cover today. we are fortunate to host a distinguished group of experts to discuss the way corporate and conservative assault on antitrust, administrative, civil rights and other laws impact the lives of everyday americans and what the trump administration's approach and the gorsuch nomination may mean for the future. to save time, i'm going to
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quickly introduce the panel now and encourage the moderator to jump right into questions. i would also like to acknowledge the leadership of andy green and michelle from our econ and legal and legal progress teams respectively for putting the panel together. the president of the constitutional accountability center -- she brings a distinguished career as a supreme court litigator to broader questions of what the supreme court means. todd cox, naacp and a former member of the cap family, he just is not working anymore. you are a member of our family. deepak gupta is one of the go to litigators for consumer workers. jonathan kantor is a partner in the antitrust group at paul weiss and a leading thinker on antitrust law and lillian solarno, former deputy undersecretary for rural development and one of the leading voices in the obama
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administration for rural business and opportunity. their discussion will begin momentarily. first, it is my pleasure to introduce our moderator, an assistant professor of brooklyn law school. he teaches administrative and constitutional law. his new book, there it is, "democracy against domination" recently released by oxford university press examines the tension between economic regulation and ideals of democratic accountability in the context of the financial regulation debate. i should also note that the constitutional accountability center has a new report on gorsuch available at the door and later this week, the legal defense fund will release their report looking at his record. cap's legal progress team also has an issue brief.
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please join me in welcoming our distinguished panelists to the stage. [applause] >> great, thanks so much. this great discussion. we have heard a lot and we will hear a lot more. we have such a range of issues to get into. let me start with just a couple of broad points i think we will see throughout the conversation.
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we have heard a little bit already today. equitable economy does not just happen. it is a product of law and policy. when you have concentration of economic power, a lot of the things we worry about it reproduced. lack of accountability. these are themes that each of our speakers are going to raise in different ways. jonathan, maybe we can start with you. we heard from the senator about merger enforcement. maybe you can give us a look at antitrust law, the landscape, and how we got to this point of how we have this big problem of economic concentration. jonathan: sure. thanks again for having me. i was extremely heartened by the comments from the senator bringing attention to this issue.
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bringing it to a level that makes a lot of sense, common sense. i was grateful for her equating antitrust to cool. now i can go home and tell my 12-year-old and nine-year-old, who equate me with non-cool. [laughter] jonathan: we really sought to some degree a revolution in the 1970's led by judge posner and that was to take the antitrust and transform it. transform it from a discipline that focused on addressing concation of power, not just because it is good for prices, but because it is good for our economy and democracy more generally. and really transforming it into something that was almost singularly focused on what they call consumer welfare price.
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price being the only part of antitrust law. from the 1970's to the 1980's and today, we now have a world where antitrust has been narrowed substantially into what it considers. it is focused again on the singularly on price effects to the exclusion of competition, innovation, and the effects on our democracy more broadly. there is a lot of discussion around mergers. in thinking about the nomination of judge gorsuch, the antitrust laws come from railroads, oil companies, clogging the arteries with competition. and what that means for our society. it is interesting because in an era like this, the consequences for abusing that position once you achieve that dominance, the consequences are as low as we have ever seen that. the sherman cases, the root of
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that is a political agenda and a supreme court. the supreme court over the last 20 years has really eroded what is possible in terms of bringing cases agait domina companies that have used market power. a number of cases have really eroded what the courts and agencies consider when examining anti-competitive conduct or allegations of anti-competitive conduct. i can't tell you how many times
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i have been in front of the agencies and talk to them about when agencies might be abusing market power and there is this view of the world where so long as you have achieved that market power lawfully, you can use it anyway you want. this is an issue. when you go back, no single case has done more damage to this than the tranco case. looking at judge gorsuch's opinions, he is an antitrust professor. sometimes you look at opinions of justices who are nominated to try to read the tea leaves as to where they might come out and sometimes, there is temptation to over read. especially if they had clerks with one opinion or it was an issue they were not steeped in our they are trying to cut surface deep.
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looking at just the small number by judge gorsuch, it is something that just someone who understands antitrust. the other pieces for me and trying to understand the tea leaves, he talks about aspects of supreme court cases and, in many cases, amplifies this sort of narrow scope of monopolization enforcement. there was a lot of debate in the antitrust communities about the impact of cases like tranco and what they mean legally. there is a lot of language there that is not necessarily binding. that you don't have to follow. suggestions. then there is the real legal holding. then there are the dicta. they reaffirmed the is black letter law and back them up with principles that are embodied by that frame from the 1970's. if you look at those opinions,
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it does not necessarily suggest that we are going to see a change in what is legally possible at the supreme court. if anything, they get a reinforcing or doubling down of the precedents that has come down over the last 20 yes. for somebody who might be pro-enforcement, that could be concerning. sabeel: that is super helpful. you are getting a sense that one of the risks here is that judge gorsuch could, on the bench, continue to narrow the boundaries of what antitrust law covers, which makes it harder to hold the market dominant players accountable. to get into the implications of that, lillian, i wonder if you
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could talk a little bit about how you see this problem of concentration and lack of accountability for large market dominant corporate actors, how that effects economic opportunity as you have seen it in your experience. lillian: sure and thank you. i think this is such an important opportunity. i'm someone from rural america. i am that endangered species called a rural manufacturer. i know what it is like to put together a company and try to sell your products and get the investment to do that, hire the folks to do it, and then find out that there really is not an open market for the products that you sell. for many years before i was an obama appointee, i used to come to washington in the 1990's and the early 2000's and go to the federal agencies and go up on the hill as a founder of a small
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manufacturing company and i was always as a non-washington, d.c. person from rural texas surprised that there was there seemed like a morph of every time i would present a case or the obstacles, there was this idea of bigger and better pricing, it is all about pricing. if we can get the consumers pricing, that is what we are interested in. i'm thinking to myself, what about innovation? what about opportunities for small business. there was always this i don't know what happened, i'm not the legal scholar, i'm certainly not antitrust, but what im is a small business advocate and a rural manufacturing advocate. there just seems to be some kind of a morph that happens where there was this crazy idea that if you had it bigger, the prices would come down. i think it is just sort of -- i did not have a great education in rural texas, but i knew one thing. price costs are one thing, price is another.
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when you do volumes, yes, your costs come down. that has nothing to do with price. we sold products in the marketplace. we were wholesale rejected in the industry we were in. when i got to have this opportunity to join the obama administration in the ag world, where we also have these huge concentrations of power in the hands of a few, i thought maybe it is different, maybe the agencies have the resources they need. maybe there is an opportunity to talk about it. what i found after literally visiting hundreds of small farmers and small businesses across the country, mostly in rural areas, that they had the same problem. at first i thought, maybe i'm looking through my prism, maybe i'm listening to my own self and i'm not listening to them, but for sure when i heard the stories about folks trying to sell, when there was only one buyer, that is a problem.
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i heard stories of these unforgiving obstacles and anti-competitive logistics of distribution. anti-competitive distribution and methodologies about pricing and bundling. market manipulation. what people do in the trade association or trade group world where the little guys don't have a seat at the table, so the regulations are made by the big guys. sometimes, many times, i checked myself in my five years thinking, maybe i'm not the best person to know this because i lived it. and the number two or the person in charge of capital markets who i had never met before, she and i happened to testify at a hearing for the small business committee on duplication or something like that, and after the hearing, she said, you over at the usda, do you collect data that when businesses fail or when you can't get more loans,
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what the reason is? i said we have some kind of form for farmers and small businesses, but nobody has really tracked it. the default, we have a whole range, nobody is really looking into it. her name is anne-marie mellon and she had been an independent banker in oregon and was head of capital markets at sba, and she said independent of me, what i saw for businesses trying to get loans and what i see in my role is that there is concentration of power, we can't give the money, we don't know where they are going to sell.
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when they default, it is because somebody bought and they have one buyer. she said, we really have to do something about it. i said, we should talk to the government and we both laughed and said we are the government. we looked at opportunities. this is on their watch. as a former obama official, i did go to the embassy, i did go to the sec, we did talk to the white house, we did talk to folks on the hill saying, we are the officials for the small business in this country where him you would think of every day ways to increase competitiveness, increase entrepreneurship, all of this is going on and you are a 500 pound gorilla taking it down, we can't do anything about it. you have to do something about it. we requested at least look at some data. immediate actions. everyone is so worried. a host of other agencies looking at this problem. it just seems like there is this
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underlying deal that people think bigger is better. we have been cajoled into this idea that big is good for consumers and the government is in here to protect consumers and the pricing piece is so important. while congress and agencies are trying everything they can do for entrepreneurship. this is not a republican or democrat problem, this inability to correct this causes a real problem. i talk to entrepreneurs in my private life and my work life every day. when i wake up, i think of myself as an entrepreneur, i think it is really scary right now. we've got to make it an environment where people are out there knowing that it is a reasonable thing to go up there and start a small business. how can you possibly get capital
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when folks have treasure trove's -- have to invest in marketing and you are supposed to compete with? if it was a competitive market, these big large institutions and monopolies would not have trillions of dollars in their coffers. they would be out there competing. just let small business get on the track and we can compete, without fixing this problem, we are in a serious issue. sabeel: the ripple effects of market concentration have an impact on consumers and prices. it is really effecting the viability of a whole range of businesses and economic activity and dynamism that we sort of expect from an inclusive and innovative economy. both jonathan and lillian giving us a sense of the implications of antitrust proper.
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competition, policy, and market concentration. these same types of dynamics, deepak, you have written a lot and talked a lot about them, about how they effect the scope of redistribution, wealth transfer, and the difficulties of ordinary people, communities, small businesses to hold those private actors accountable and i was wondering if you could speak about this and about how difficult it has been to respond to these challenges that you have laid out. >> we are glad that the center for american progress is having this conversation. i think too often when people think about what the supreme court is up to or what the government is up to in general, we are focused on hot button social controversies. in my view, the effect the court really has that people should really be paying attention to is the way it effects kitchen table issues, their pocketbook. the questions they are talking about, they can seem very technical. if you stop someone on the street and you ask them their views on antitrust law, you may not think that they have used.
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i actually think that ordinary americans think the economy is increasingly stacked against them. they understand that they don't have a fair shot in the way they thought they had. what i would like to inject into the conversation is that the law is a part of that. the law both relies upon and facilitates these kinds of trends. people should be concerned about them. both when they are thinking about who to vote for and what might happen with this next supreme court nomination. so, what i want to focus on is how the law gets enforced. it does not matter what the law says if you can't enforce it. there is a congressman that famously said, you write the substance, i will write a procedure, and i will screw you every time.
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what he meant by that is that if i get to write the procedures of how you get to enforce the law, that is where the rubber meets the road. the conservatives on the supreme court and their allies in the chamber of commerce and other groups have recognized this and have pushed a radical agenda on the court that has limited the ability of ordinary americans to enforce their rights. unfortunately, without people really noticing it, without them recognizing it because it relies on these sort of technical, legal concepts that don't get as much attention as cases about abortion or gay rights. i want to focus on -- this is a broad trend and it affects the way that people can get into court, plead their cases, whether they can band together. i just want to focus on two cases that i've worked on in the past.
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and that i think shining a light on this phenomenon. we all understand that there are these laws that say, for example, that companies can't cheat you when they sell you a product. that people can't charge women less than men in the workplace. that you can't have monopoly power, that can be challenged. there are only two ways for the loss to be enforced. either through public enforcement whether it's the federal government or state agencies or through private litigation. in the united states, we have a balance of both things. we don't have as much had he had a government regulation and we think there should be a market solution where people are incentivized to go into court and take care of those things. modern life is complex. i presume that my cable company is ripping me off and lots of other companies are but i don't have time to look through the
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bills and figure out the many ways people are ripping me off. if you talk about discrimination the workplace whether it's paid to discrimination company to run complex regression analysis to figure out whether women are being paid less than men. we have a system where lawyers can represent people and allow them to band together and go into court and bring these things called class actions. what the supreme court has done in a series of cases, these are largely 5-4 cases where the late justice scalia weighed in, restrict people from doing it. i did a case where it was people who alleged at&t was ripping them off. the question was not whether they got ripped off, the question was do people get the right to go into court and band together along with all the
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other people who allege they were ripped off in the same way and bring that case? what the supreme court said in that case is they dusted off a law from the 1920's called the federal arbitration act that was just intended to allow businesses that wanted to go outside of court to agree to do that. they allowed companies to insert into the fine print of their contracts with consumers and cell phone contracts, a clause that said you can invoke that federal arbitration act and you can say that people have to go into a private corporate justice system and they can only ring -- bring these claims one-on-one. if the claim is about getting ripped off by a phone company $30 at a time, no one in their right mind is going to bring that claimant. -- bring that claim. the effect of a decision like that is that all of those claims go away. i'm not so concerned as a customer. i'm not concerned whether i get my $30 back.
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what i am concerned about is the deterrent effect, the fact that if a lawsuit like that cannot be brought, there's nothing to stop people from cheating people. you might not care as much about your phone bill. you might care more if it is a bank and we're talking about mortgages and practices that nearly crippled the american economy. this is something that voters on the right and the left should be concerned about in this nomination. a case that followed on this case was a case called american express versus italian colors further exacerbated the problem. it was an antitrust case and we represented italian colors restaurant. it's a small italian restaurant in oakland, california. like many other small businesses, they were concerned about the ability of credit card companies to write these terms into their contracts and force them into these arrangements
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that because the credit card companies have so much monopoly power, the merchants don't have much say in what happens. these merchants wanted to challenge american express' monopoly power. what the supreme court said is even if it means that you cannot bring a case like that, even if it means no one rationally put together the resources to bring the case, we're still going to allow a claim like that to be sent out of the court system and into this one on one arbitration system. justice kagan wrote a dissent to justice scalia's opinion in this case and she explained what was going on. she said in this case, the monopolist gets to use its monopoly power to insist on a contract that deprives its victimof all rights to chalnge that very monopoly power. it's crazy. you would not believe it if it were explained to you in that
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way that the supreme court could do this and the supreme court 's response was too darn bad. i think that is what's at stake in this nomination is whether or not judge gorsuch will be a justice who continues that trend. he has written some things about class actions that should give us reason to be concerned about that. he has described class-action is it nothing but a free ride to fast riches for lawyers and he -- class action as nothing but a free ride to fast riches for lawyers and he wrote an article in the national review complaining about what he called addiction to lawsuits. i think that is something we should be concerned about. i don't think people who voted for this president voted for that. i think they thought they would
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get somebody who would shake things up and work for the little guy, not large banks and companies. sabeel: we got a lot on the table. the common threads between the three of your comments so far is the problem of concentrated economic power, economic influence that skews how we expect a fair market and a fair economy to work and then the ways in which the consumers, small businesses, and government actors are all limited in their ability to respond to that, to hold those actors accountable. what we are really dealing with is the legal and policy construction or construction of the -- of exclusion of the opportunity. todd, you have worked on these issues intersecting with
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questions of racial justice and civil rights. can you give us a sense from that vantage point how these themes are animating the challenges for racial justice. todd: sure, and i also want to thankcap for inviting all of us to this conversation. for me and the legal defense fund, it's impossible to talk about economic exclusion without talking about the role that discrimination, particularly race dissemination, in fostering that conclusion. it's discrimination across a number of different areas like sex, sexual orientation, people with disabilities and the like. for ldf we look at it from that vantage point but also the tools that have been developed over time that allow us to attack that discrimination. any scotus nominee or judicial nominee should be asked a lot about the role of class actions and the role of access to justice. we think it's important to respect the intersection that you discussed. we look at this from a standpoint of economic justice which respects the intersection of poverty and race. these are ordinary folks being impacted across a number of areas. our clients don't spur his life
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-- our clients, our stakeholders don't experience life in silos. they experience life. we established the national organization for the rights of the indigent that deals with criminalization of the poor, bail reform, issues around fees and fines. this is at the intersection of race and poverty. transport to the 1970's where we brought grigs which set the framework for desperate impact which is spread across a number of civil rights areas. all of these frameworks are what is at stake when we discuss judge gorsuch or any judicial nominee and this administration
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in general. fast-forwarding to this record, there are serious concerns about access to justice and class-action and serious concerns regarding judge gorsuch's record -- looking at class certification but also his propensity to grant motions to dismiss and prevent people from getting to jury. on the employment discrimination side, we see some of the same things, erecting barriers to access to justice but also being skeptical about claims of defendants in this regard and siding with employers. for the legal defense fund, this is about law and policy. economic mobility touched on issues of infrastructure and using the existing laws to see if we can make sure our infrastructure is operating in a way that's not discriminatory.
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it's how federal funds are used to impact transportation, all of these things are on the table when you talk about this administration but also when you talk about how this might end up in court and how this particular nominee will address these issues. >> a bunch of the panelists have talked about the stakes of the gorsuch nomination. these are issues that go far beyond the headline topics we tend to focus on in a confirmation hearing. elizabeth, your group has done a lot of great work on situating the current court in context of all these issues which involve, in different ways, the balance of power between business on one side and everybody else on the other. maybe you could give us a sense of where the trend has been on the court and where gorsuch fits into that.
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>> thank you so much. i think this discussion shows the many ways in which the court affects the daily lives of all of us. it's from the air we breathe and the food we eat and whether you have a roof over your head and how much you pay for it and whether when you go to work, you can have a workplace that is safe and free from dissemination -- discrimination on the basis of color of your skin or gender or who you love. these are incredibly important issues even when they involve technical issues of arbitration and preemption or antitrust. i thought this was a great phrase, the court both participates and facilitates the trend of pro-business environment at the expense of everyday working americans. one thing that the constitutional center has done is look at the way that trend has appeared in the supreme court.
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we looked at the chamber of commerce, the voice of business. the u.s. chamber of commerce, not your local chamber of commerce. there are important differences. you look back at this memo that lewis powell wrote to the u.s. chamber of commerce. this was in 1971 and he notes what he calls neglected opportunity in the court. he says we have seen groups like the is still you -- like the aclu using course to pursue justice for their constituents and for our country overall. he said the business community should be harnessing the court. we should be using them as an agent of economic and political change. in pointing out the neglected opportunity, he urges the chamber of commerce to come up with this strategy to get the courts to be more pro-business and put the interest of business at the top.
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cac looked at how successful that attempt was and we did studies going back to the burger court and to the roberts court. we have some here in the room and you can find it on our website. i am at the end so i brought little charts. we saw a vast increase in support for the business, big business viewpoint on the supreme court. you go back to the burger court starting in 1981, you have about an even split with the chamber only winning 43% of the time. you look in the roberts court now which is the most pro-business court of the modern era and the chamber of commerce wins 69% of the time. that is a rapid change in the business dominance of the supreme court. the other thing that is
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important is not just that they are winning, it's the way they are winning. there is a sharp ideological divide that you did not see back when you were on the burger court. you had your more liberal justice and you're more conservative justice voting for big business about the same amount of the time. now we have the most pro-business justice, justice alito, voting for the chamber 74% of the time. the once voted for the least, justice ginsburg, 44% of the time. that is a vast ideological divide on whether you are pro-business or not. what i think is important and one thing that has been brought out by discussion is that it's not result oriented. we have to do that a little bit to get the numbers but it's the way in which business is winning. there are certainly cases where the business side of the argument should win. we are not saying that should never happen. the problem that the roberts court is that they bend over backwards to accommodate the interests of big business at the expense of the little guy.
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they don't seem to show that same solicitude when you're looking at assets to justice cases for those of us who are individual americans as opsed to access to justice cases when you're a big business that wants justice in aarbitration proceeding. that reading is a vast over reading of the arbitration case. when we look at judge gorsuch's record, obviously it's a very important question of whether he will further entrench that ability of the supreme court to bend over backwards for big business or whether he will apply the law fairly for all people no matter how much money you have in your bank account and whether you sit in the corner office or not. cac has put out this report that raises concerns and we don't take a position until after the hearings. we have some concerns. it's precisely on the over
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reading statutory or regulatory language to favor the business. at the expense of the working american. there is a case with trans am trucking which is a great example which is gotten some press were gorsuch dissented from the majority ruling and said the trucker who was on the side of the road and -- in freezing conditions faced with the question whether my brakes failed, i have his load of goods in my truck, it's freezing cold, the company tells me to stay here with the goods in the back of the truck but i am literally freezing to death. i cannot operate my truck safely. so he detaches and drives the cab of the truck to safety into -- a safety a to warmth. he was fired the majority says he is protected under the federal safety lock for whistleblowers and people who refuse to operate -- who failed to operate equipment in an unsafe manner.
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gorsuch engages in dissent in a cramped reading of the statute to say -- the statutes as failure to operate but he did not fail to operate because he drove the truck. he refused to operate in an unsafe manner that his employer directed him to do so we would not give that worker protection under the law. it's not that he would have voted for business, it's that he engaged in this cramped interpretation of the law that i think even chief justice roberts, when he looks at the statute in the aca case, i don't think chief justice roberts would have voted with gorsuch in that case. going into the hearings for judge gorsuch, we have concerns that he has a burden to show he will be truly independent of big business interests. there are concerns about independence overall given the context in which donald trump
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nominated him with litmus tests and whether he will take each case as a time's a look at the facts and be the independent check that the constitution and american people demand. i am delighted that senator klobuchar is committed to asking these questions of him. i hope we will get a robust and clarifying answers from the nominee. the american people really should be watching this just as closely on these issues as they do on some of these high-profile issues that all of his care -- all of us care deeply about like marriage equality from the past couple of terms, the abortion cases, the affordable care act. these are important cases but the little ones are important and we should be watching them as well. >> we have covered a ton of ground. it's a strong lesson coming from all of you on the panel.
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the law in general but then the supreme court of particular, at the center of our legal development has a huge ripple effect on the degree to which our economy is inclusion or exclusionary, a fair room for opportunity and engagement or not and it manifests in some of these nooks and crannies of the law that may not be front and center for a lot of folks but really have huge effects. i want to leave a little bit of -- bit of time for questions and answer, but maybe we can do a lightning round and from each of your vantage points, is there a particular upcoming case or policy dispute that touches on the issue we have been talking about that you are seeing coming down the pike? looking ahead, what are some of the things as a community should be particularly focused on over the next few months? >> the antitrust -- for me, the real question is going to be
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with the new court, how many antitrust cases they take. and whether they can start clarifying aspects of the law that need clarification. in the absence of more decisions on a lot of these antitrust issues, lower courts and agencies are left to interpret them in narrow ways. that can be very limiting and result in some of the concerns we have discussed here. i would not say there is anyone case for me to question. will the supre court start granting more antitrust cases? >> my concern is with all of the chaos happening that we are all collectively distracted by something new every day and we
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don't notice that the agenda i have been talking about is about limiting access to the court which is part of a broader deregulatory agenda is just taking place every day. the house of representatives just passed sweeping legislation to limit access to the courts through class-action. as far as i can tell, nobody is noticing this. before the supreme court, there are cases where the national labor relations board has concluded that exactly the kind of clause i was talking about, a clause in the fine print that seeks to stop workers from being able to bring class actions where they have no choice. the national labor relations board has said that's an unfair labor practice. the question before the supreme court will be -- does the view when or the federal arbitration act when question mark the supreme court decided to kick that case until the next term to wait until judge gorsuch arrives. the troubling thing is that judge gorsuch has made his views known on deference to agencies. he said he does not believe in deferring to the extent current supreme court law allows.
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i think we should be very concerned about what he would do in that case. >> i think that's a great point that while these things are happening that distract us, rightfully take up our attention every day, but the supreme court is continuing to operate even though they only have eight justices. they are hearing important cases and there's a important case this term that has to do with the ability of the city of miami but cities in general to hold big banks like wells fargo, bank of america, accountable when they enged in racially discriminatory, predatory mortgage lending practices that have targeted and, in many cases, you this are rated communities of color. it's an important case about whether the supreme court is willing to hold accountable big corporations when they engage in wrongdoing. >> for me, it's the context within which all of this is
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happening. real life does not operate in silos but concern -- but conservatives don't either. they are dismantling our civil rights. congress is operating under the cra to undermine our civil rights, removing regulations and administrative rules that went through an us to get put in place. the other context which goes to the access to justice peace is the fact that the attorney general may not be the partner he once was. or the position was. in the past, advocates like me regardless of party were standing shoulder to shoulder in our litigation with the attorney general. this time around, it seems that you will learn they have switched sides. with regard to economic justice, this is critical. the attorney general oversees the civil rights division which
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has important law enforcement responsibilities regarding employment discrimination. we need to be very careful about access to justice and intervening in this -- in these cases so we can actually make up for the lack of partnership. finally, i think the executive branch itself has demonstrated a frankly open hostility to the courts. how independent will any nominee be to this administratio it seems to be acting very bullishly to undermine our rights. >> i take it more as a messaging , as a part of the movement to make sure that inclusion and small businesses and entrepreneurs have access. we have an opportunity to utilize -- when you say antitrust, people's heads do and not turn it into and not add-on
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to the messaging of economic opportunity but as a central plank of any message about how those of us who care about this country want fairness. when you talk about this, whether you're talking politics be thatacy, it has to this part has to be fixed. that should be the plank of the populism we use as progressives. >> i believe we have a couple of minutes four q and a. back.man in the >> thank you, i'm a private practitioner in washington and a professor at georgetown law school. i have fought just about every pay-tv merger that has come up for the fcc and doj. i've got fellow warriors in the room who remember this.
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when senator klobuchar said let's make antitrust cool again, amen. inherent in that is politics. the point is to make something that can be ve esoteric more tangible to the public. you cannot think of a more importanintersection of law and politics than the confirmation of a supreme court justice. that is how the constitution brought politics into this process in the first place. if we as progressives want to if -- want to see a higher profile for any trust enforcement and if we understand this to be a political and legal question, wouldn't it make sense to start with the things that people understand the most? here are words i have heard today -- beer, pharmaceuticals, i would add gasoline. in other words, there are parts of the economy today were people -- today where people hate the provider or love the product. it's not a hard sell to say to
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them, you are being screwed. doesn't it make sense to start there before we get to the esoterica? >> let's take this question as well. we can do them in batches. >> in terms of a candid president naming people to the supreme court, we have seen this not just on the right but on the left as well with sandra saying i will only appoint justices who will overturn citizens united. whoever most of us would like to see -- however most of us would like to see the overturn, just in that compromise -- doesn't that come from eyes any candidate named by either party? they have pledged to vote for or overturn or uphold a controversial decision. shouldn't any intelligent candidate say it would depend on
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the particular circumstances of a case that is likely to go before the court and therefore i cannot make any commitment to overturn or affirm? >> those two questions are on the table. >> with the last question, i think any good candidate will say that i cannot speak to any specifics or comment on any case but i think it's the job of our united states senator like senator klobuchar to ask probing questions that go to the fundamental thinking of people who will have such a major impact on our society. looking at a judge like gorsuch and thinking about antitrust, he knows the subject very well. absolutely, the senator should ask them questions about antitrust and what he teaches and his philosophy in the subject and they should listen to his answers carefully.
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they should use that as the basis to determine how they will vote. >> i agree with you that the litmus test is problematic. that is part of the reasonhy gorsuch goo this hearing with suca highden. we normally have a little bit of theater where the senators ask questions on the nominees give no answer basically. it is problematic you have had a clear application of litmus tests in this case. donald trump said a lot of things in a lot of different ways in the campaign trouble one -- on the campaign trail, but one thing he was consistent on was his language about litmus test and the willing to overturn roe versus wade. while you certainly want a -- roe v. wade. while you certainly want a nominee who will come out and say i will take each case as it comes, when you have someone who is -- has promised to people who in many cases have the supreme court is one of their most important reasons to vote for donald trump, he promised to them that i will get someone who will automatically overturn roe -- roe v. wade, then you have to
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ask the question, did you make that promise? did someone on your behalf guarantee you would vote in a certain way this particular case ? many people that said justice gorsuch is not the kind of person and he is independent. we need that to be proven perhaps even more than the ... -- more than the normal course of things -- it is wrong on either side. >> just to connect the two questions, i agree with everything. even though we have this kabuki dance where people as these questions -- ask these questions. the valley of this process even if it doesn't deal with specific answers. this is a teaching moment. the reason folks on the room to talk about tse isss d hear
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us talk about what the court is up to, is because there is a nomination. when it comes to the is verytion, it difficult and frustrating because there is not much and that we as citizens can do. where the court is interpreting what commerce is done, there is a fix. it matters to have that conversation not only because of the outcome of the nomination but forgetting people energized -- but for getting people energized and mobilized about these issues. >> i would like to add that we spoke about pharmaceutical and this is what i talk about to anybody who will listen is our messaging problem. we have a messaging problem when we say antitrust for most americans, it means something along standard oil or something they learned about. we have to put into things like pharma, comcast and others where you are frustrated because the system seems rigged. >> one thing i will add to that is it is not just the industries that people can identify with.
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one of the takeaways for me from hearing this rich discussion is that the problem of private power manifests in many things, not just consumer products. there is racial inequality, inequality in the workplace, things that i -- people do not live their lives in silos. there is a lot more scope to connect the themes of this panel to the lived experience of inequality and exclusion that people experience. let's take one more round of questions. in the back and then the gentleman up here. we will take both questions and then answer is a group. -- as a oup. >> hey everyone. in 1938, roosevelt gave a speech a monopoly power and said private concentrations of power taking over government is the definition of fascism. i think it's pretty obvious we are seeing similar trends today. you see it in the political dialogue but also in forums were
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-- forums where we talk about the supreme court. it would be too polite to mention it so i will mention it. that's what president roosevelt said. if gorsuch gets on the court and the concentration of power will be toward conservatives, the strategy to avoid concentrations of power taking over the government cannot be to wait 20 or 30 years. until you get the court back. it has to be to change our institutional relationship to the court. what does that look like? >> gentleman here. you, my question is for those who have extensively looked at judge gorsuch's body of work, do you find somebody who you conclude is result
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-oriented and is seeking some legal way to reach a pro-business decision in every case? or do you find somebody that is primarily legal process driven and it's because he is a strong believer in textualism and originalismten -- that he tends to graduate to decisions which have the effect of empowering business at the expense of other groups? >> i can take the first question. i think i said the context is important. any nominee or appointee has to be considered within the context of what's happening with this administration. you talk about concentration of power, this administration has had over reach on the executive order side of things. the muslim ban a not can -- and i consulted with the experts, career or otherwise before making a decision.
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that was not a mistake. there is a desire to run things in a way that excludes transparency. the context i talked about before needs to be on the table when you're asking someone what you would agree to be partners with this administration or agree to an appointment. how independent will you be in evaluating the administration's decision on any particular matter? whether it is a muslim ban. regarding your qstion, the answer is yes. from the record we have seen, focusing on employment discrimination, as originalists, he argues that he is, we have seen that he tends to side with the employers and read the process and procedures in a way more often than not result in the employers being victorious
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and even skeptical to the claims of plaintiffs. there may be a philosophy about using the court to advance claims, may be a philosophy around that, but i am looking at his record. we are looking at the number of type of cases he has decided. we see someone who is skeptical about plaintiff's claims in the employment context and someone who is really to breathe new life, in this case hobby lobby to side with employers. >> that brings up an important lens through which to look in his record. gorsuch claims to be an original ist. i will say right here as a progressive, there is nothing
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about originalism despite what conservatives tell you, that necessitates conservatism. the problem we have with aot of conservative deliver journalists is they think the constitution ended with the second amendment or maybe the 10th amendment. when you are an original list with respect to the whole constitution the way that we the people have amended over time to remove the stain of slavery, write into the constitution people's protection for all persons, to ensure that the poll tax was eradicated so your ability to be a citizen did not depend on your ability to a when you came to the ballot box. when we look at the constitution as it has been amended over time to be more equal and just and more inclusive and free, that does not lead to conservative results. it leads to progressive results. what causes us concern when you look at these cases like employment discrimination cases, gorsuch'se originalism coming through in these conservative cases but not a ringing endorsement of history
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on equality for all people of all colors or genders, that raises a question mark. i think putting together the results with the methodology, the philosophy and that's something that needs to be explored at the hearing. >> i think that's a very good point. very few justices would say brown versus board of education was wrongly decided. the question becomes, what difference between brown which contained many features we're talking about here, access to justice and class-action types of processes as well as using experts to examine facts, what about brown separates it from other plaintiff cases? those are valid questions. is it just to say that brown was wrong is anathema or are the reasons why he seems to be
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siding more with employers? >> jumping in on the first question, if you have urgency and you believe that change is necessary now and at the same time you juxtapose that against the supreme court that can take 30 years to really shift, how do you deal with those problems? that is hard. historically, the answer starts with creating an ideological movement. it's creating principle that people can move education forward, bring cases, if it's academia, new blood, new ideas
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from professors. over time, you influence the way the american public thinks about certain issues so that you can place people on the court to reflect those values. it starts with a movement. whatever you want to rally behind, that is what is necessary and i think a lot of the themes and what we saw in the selection as a country desperate for a movement but perhaps not getting everything a -- everything it bargained for. the real question is, what will fill the void? i think part of the reason for panels like these is that we need to have a strong message, one that is positive for the american people to fill that void and create a movement and it cannot be just around social issues. it has to be around economic issues as well. >> that's a good place to pause. we are at time but thank you everyone. thank you for the panel for a

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