Chamber Letter to White House Calling for Greater Oversight of FTC and DOJ

230417 Intl Compettion Policy NEC NSC

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Published

April 20, 2023

Dear Directors Brainard and Sullivan:

The U.S. Chamber of Commerce is profoundly concerned by indications the Department of Justice’s Antitrust Division (DOJ) and the Federal Trade Commission (FTC) are seeking to apply their vision of competition policy in a way that undermines U.S. economic and security interests abroad — and that runs counter to the objectives of both this Administration and Congress. We urge the Administration to consider these concerns, consult more broadly with Congress and industry, and take steps to remedy them.

First, both agencies are reportedly preparing to help foreign governments implement protectionist policies that directly harm U.S. companies. Following last month’s meeting with counterparts in the European Union, DOJ and the FTC announced plans to send their employees to “assist with the implementation of the Digital Markets Act (DMA).” While the DMA affords formally identical treatment for all companies, it was carefully crafted to apply to a select number of U.S.-headquartered firms almost exclusively. WTO rules clearly prohibit this kind of discriminatory treatment as a violation of national treatment obligations the EU and its member states have assumed.[1] As such, we were troubled to learn that DOJ and the FTC are actively assisting the European Union in implementing these protectionist policies.

Biden Administration officials have expressed agreement with these views and have opposed EU efforts to advance the DMA specifically and to promote the EU’s “tech sovereignty” agenda more generally. Multiple cabinet-level and senior White House officials have raised concerns with European officials. As one cabinet secretary explained, “we have serious concerns that these proposals will disproportionately impact U.S.-based tech firms and their ability to adequately serve EU customers and uphold security and privacy standards.” Congressional leaders from both sides of the aisle have echoed these concerns. Yet now our antitrust agencies, which claim to lack sufficient resources, are planning to send staff to help Europe promote its protectionist digital policy agenda.

Even if the DMA did not undermine U.S. economic interests, it would still be improper for the FTC and DOJ to send U.S. employees to assist with its implementation. The DMA is regulation, not antitrust law. The DOJ and the FTC are ex-post enforcers of U.S. antitrust law, not ex-ante regulators. Accordingly, there is no justification for U.S. agencies to help implement the DMA’s regulations as there is no parallel approach in U.S. law.

Moreover, sending DOJ and FTC staff to help implement the DMA could undermine law enforcement efforts here at home by adding to the mounting recusal concerns surrounding both agencies’ leadership. Given that the DMA targets many of the same American companies that the DOJ and the FTC are suing or investigating, their eagerness to support the DMA raises questions of implicit bias.

Similarly concerning, the FTC and DOJ also are undermining U.S. economic interests in Asia. In the attached letter sent to U.S. Trade Representative Katherine Tai earlier this year, we strongly supported the inclusion of due process and procedural fairness provisions in the competition chapter of the Indo-Pacific Economic Framework (IPEF). These provisions were part of the U.S.-Mexico-Canada Agreement (USMCA), which won broad bipartisan support in Congress. Such provisions are consistent with American values, constitutional protections, and the agencies’ past practice and legal duties. We have yet to receive a response to our letter to Ambassador Tai.

Our letter to Ambassador Tai was intended to highlight the fact that FTC and DOJ were blocking USTR from tabling text as part of the IPEF competition chapter negotiations. This long interagency stalemate effectively amounts to a refusal by the FTC and DOJ to support due process and procedural fairness norms in competition investigations around the globe. We understand that the agencies’ leadership recently sent another letter to USTR, again objecting to the competition provisions in IPEF but also objecting to digital trade provisions found in an entirely different chapter. Digital trade provisions ensure that foreign governments do not erect trade barriers that exclude American workers and businesses that rely on data flows to deliver products and services.

The recent DMA announcement, coupled with ongoing interference with IPEF, represent a troubling effort by the DOJ and FTC to conduct international economic policy outside their mandate to enforce the antitrust laws in a manner that runs counter to America’s national interest.

Both the Biden Administration and Congress recognize these facts. Accordingly, we ask (1) that the DOJ and FTC abandon plans to provide staff support to help the European Commission implement the DMA and (2) that IPEF provisions in the competition chapter and the digital trade chapter move forward to the negotiating table, building on the bipartisan congressional consensus reflected in the USMCA.

Thank you for your attention to this matter.

Sincerely,

Neil L. Bradley

Executive Vice President, Chief Policy Officer,

and Head of Strategic Advocacy

U.S. Chamber of Commerce

cc: The Honorable Antony Blinken, Secretary of State

The Honorable Gina Raimondo, Secretary of Commerce

The Honorable Merrick Garland, Attorney General

The Honorable Katherine Tai, U.S. Trade Representative

The Honorable Lina Khan, Chair of the Federal Trade Commission

The Honorable Jonathan Kanter, Assistant Attorney General