President of external affairs. Im so delighted that you all could join us today. Reviving antitrust cap highlighted the concerning indicator that is the economy has grown far too consolidated with more power being concentrated among the largest firms in america. Because of conservative assault on both government and middle class. This assault has played out not just in the courts but in the antiforce the federal trade commission and a wide range of federal regulators and halls of congress where the view that big more than efficient has dominated far too long. Since the early 1980s conservative legal thinking embodied in robert bork and ant anyonical anyone scalia 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 comfortable with rising and limited privacy protected and nominated a Supreme Court justice who promotes aimed at even greater economic concentration of power. What does this mean for americans . Sky high drug prices and airline tickets. Lower wages, less innovation and choice and broader trends like the deindustrialization of the midwest. I dont think its an exaggeration to say that such concentration of economic power plays a big role why conservatives in Congress Want to roll back wall street reform while ignoring communities in need like flint, michigan. Thats not something ordinary americans want to see more of. Given these threats we need senators like Amy Klobuchar speaking today about a critical piece of this puzzle the need for vigorous antitrust enforcement in an enra of increasing mark concentration n. A town like d. C. Not known for friendliness, senator klobuchar brings a minnesota nice, but do not mistake it for softness. One person. A former county prosecutor and first female senator from minnesota, senator klobuchar also brings iron range toughness, the daughter of a journalist, she is a fighter for middle class families in minnesota and across the nation. On antitrust policy and Consumer Rights the senator has long been a fooers advocate for competitive markets that promote robust economic growth, she has been a consistent fighter for lower prices, Higher Quality and fairness for small and growing businesses. We need more leaders like her in washington. Please join me in welcoming the honorable senator Amy Klobuchar. [ applause ] thank you so much. We were pretty excited to see this like sold out crowd for an antitrust session. My said its wonderful. Thank you for your leadership an center for america progress for all that youre doing. Before i was a senator and before i was a prosecutor eight years, i was a lawyer and at one point early on in my career my client that actually did the most work for over the years was mci. This was at time when they were a scrappy company that was taking on the Bell Companies and getting into the market and actually eventually when i was representing them trying to create some competition in the local market as well. It was truly an exciting time to be representing a young, hungry company. Mcis scrappy lawyers viewed themselves as cowboys of sorts, fighting for consumers and lower prices taking on the local telephone monopolies across the country and one of the stories i remember i told at one of my opening arguments at a very exciting regulatory hearing was recalling when Alexander Graham bell developed the telephone when the whole system started to work he said those historic words, does anyone remember what they were . Come here watson, i need you. This is like lure of tell le communications. Fast ford nward to mci in the l few decades and they were getting ready to connect the first communication between st. Louis and chicago one of their main guys when this great moment occurred he actually said the words modern day come here watson i need you is ill be damned it actually works. Without antitrust law mci would have never worked. It took on Bell Operating Company and ultimately broke up that monopoly, lowered prices across the country and revolutionized the telcome. I know it may not capture the attention at the moment but its kons sequential. South korea impeached based in part on allegations she participated a bribery scheme that ordered Government Support of a merger, here in the u. S. , the nixon water great, it was to keep the constant threat of an antitrust suit hanging over them. An we all know how that end sd. I think the American People intuitively understand theres too much concentration in this country even if they dont always describe it that way, twothirds 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, its 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. And Chuck Schumer actually gave me the idea to start doing it though i later found out after years of doing this, he had a election and won every county except his smallest one and he went to his chief of staff and said i dont understand it the county is so small i practically met everyone in that county and he said that was the problem, senator, that was the problem, but what i have found is visiting all of these counties gives me a sense of where people are in Rural America where i dont think you can get by looking at newspaper clips or talking to your staff an just in the last month i was in 20 Rural Counties at farms, and at everything from a ducks unlimited gathering 400 mostly guys, to a la sewsewer county township and i can tell you people are still struggling economically, hard to pay for internet, prescription drugs hard to get that loan if they want to start something new and they want Common Sense Solutions and thats why when you look at the Rural Economy net income 50 of it was three years ago for Small Farmers, poverty rate is actually four Percentage Points higher than in urban areas so this is real and nobody gets affected more than if youre out in places that have less choice and less competition. So strengthening that Rural Economy for me means not only doing something about prescription drugs and getting broadband out there and passing the farm bill but also making sure that we have actual competition. And that we be vigorously enforce our antitrust law, so if you dont think major mergers whether its ag, or Health Care Impact people especially where theres a bear margin on cost like rural i think the number s just gave you give you all the evidence you need. Some people may ask what does a Strong Economy have to do with antitrust . And 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 good for the lowest possible price. That is capitalism. But what i want to emphasize is that talking only about antitrust in the way the prices is oversimplified because it affects more than the price of goods they buy. We now have evidence that it fosters Small Business growth, if you have big people dominating it is hard to get in the market. Reduces equality because most people affected by the high prices are the people at the bottom of the income scale so theyre going to be most affected if you have concentration and that also you have a decrease in innovation when you have too much concentrated power and something im going to come back to that i think is really, really important. Yet, what do we see coming from the courts . In the last few decades the Supreme Court cases that maybe they can one of our panelists will discuss that, they have actually raised barriers to the pursuit of antitrust cases so our Supreme Court nominee as you probably know is an expert on antitrust and i think its more than important to pursue this in the hearings coming up what his views are on the trend of the court and thats been happening to antitrust law in recent decades. So, lets go back to why this matters. Concentrate interests make it nearly impossible for entrepreneurs and Small Business owners to compete. Firms with fewer than 20 workers make up 90 of businesses in this country, if you have all this concentration youre really going to be taking a gouge out of the american economy. When there are eight or ten competitors, this gets to the innovation argument, theyre going to compete to innovate, theyre going to compete for the next fitbit or whatever, but when you only have one or two firms, that is not going to happen because they dont want to innovate. Theyre happy with the status quo, why have innovation . Think of your Cable Company and your cable box, no one liked the cable box, but for years the company made no modifications and continually increased rates, recently, recently, recently and only recently, teams have improved the viewer experience and expanded choice. Competition drives innovation. If thats too technical for you, how about beer . For a few years there were a few dominant carriers in the beer market. They sold the mass market, see it in the super bowl ads, by 1978 there were fewer than 50 brewers nationwide then across the country, what we call the craft brewing corporation, they were small craft brewers, tended to use more american ingredients, increased choices and improved quality today in my state alone, we have over 70 craft brewers more than the entire country had back in 1978. Im not going into the nerdy facts with 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 he call it . Oh, the beer he mimith merger, t was pretty witty, but i have to make the case to you today that its not only important but cool to talk about because its all about whats going to happen with the economy. Researches suggests as i noted that concentration increases income and equality. Firms with monopoly and power putting money in the pockets of the owners, they far out number the owners who gain it all contribute to inequality in the cowen tr country, so we have to recognize the importance of antitrust enforce. Since 2008 americans have engaged in 10 trillion in acquisitions, and there was a 50 increase of me gers reviewed by the fdc and antitrust division. There are signs of anticompetitive concentration everywhere, as former chair and now Ranking Member of the antitrust subcommittee i raise concerns about these mega proposals the last few years, comcast failed merger with time warner, as we pointed out at the senate hearing, if it was approved the combined company would have controlled 60 of the countries high Speed Broadband customers, between Norfolk Southern railway and southern pacific, something i took on immediately after it was announced. 90 of freight traffic is only handled by four railroads. How many are on the board . Four, no coincidence. Just last year the assistant attorney general, said he was reviewing deals with such antitrust concerns they should have never made it out of the Corporate Board room and reason for more concern, the fact that 83 of companies earn 25 of profit or more in 2003 were still achieving those profit levels a decade later. Though firms may exploit advantage in the short term winners and losers should in the market. Prices in america should be lower than in other countries, but in general they are not lower than in countries with lower markers, now more than every we need antitrust enforcement laws. Large Institutional Investors own almost 70 of the stock market. The large ers shareholders of apple and are black and vanguard. We see these in soft drink owners and banks they often fail and more deals must be blocked. I cant tell you how many say content providers in the media market, other things come to our offices they cannot really they dont really want to go public because theyre afraid theyre going to get screwed if they do it but tell us what happens if a lot of these merger implementations arent getting done and not able to move forward despite the fact that some of these conditions were put on so thats a big concern. The fdc disagrees but im looking at what i see and i think its a problem and if its not a problem, great but youre going to see the proposal i have in a little bit to create some kind of check and balances of promises made at mernlers. As merger deals have grown so also have the complexity of settlements, we talk about firms being too big to fail. Antitrust is a question of whether some firms are simply too big to fix. Some of these mergers are billion dollars mergers. More greaaggressive antitrust enforcement to prevent monopolies, they are not republican or democratic issues, theyre consumer issues they have tended to be more focused on by the Democratic Party and i can thats important to note. Mike lee and i, hes kind of of a tea Party Background have worked very well on these issues and painstakingly work out ideas and send letters and work with the antitrust division and have told us repeatedly how helpful it is for them because these are in fact bipartisan suggestions and conditions for others. So this we get now to the bad news the federal governments commitment to antitrust enforcement has declined. Our economy in terms of nominal g. D. P. Has increased 20 between 2010 and 2016 and merger filings have increased over 50 . At the same time the budgets have been flat because antitrust agencies are only able to litigate in the highly concentrated market. They often cant deal with new issues like Investment Funds crossship of competing firms within an industry. Still the agencies are doing the best they can and we have seen real results. In 2015 the department of justice obtain add record 3. 6 billion in criminal antitrust fines. 3. 6 billion in fines. The entire operating budget is roughly 5 of that figure. Whats incredible is that the division is actually a money maker, so if we have people interested in making money this is one way to do it. The fdc has six antitrust litigations, including blocked acquisition of office depot and hospital mergers, and litigated two mega mergers including anthem and cigna. Chairman lee and i held a hearing on the affects of those mergers on consumers, but we need to agencies to do more and the new administration to take this seriously. Some might argue that President Trump who has been both a plaintiff and a defendant in antitrust lawsuit 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 today he was both a plaintiff and a defendant. He was a plaintiff in the United States football leagues case against the nfl. Trump won damages. He one a dollar, tripled to three dollars. It is in the espn documentary. On the other he was on the other side and paid a 700,000 penalty in acquisition of stock in Holiday Court and bali manufacturing, so hes actually in the red. During the campaign his red rhec echoed teddy roosevelt. Now it looks like the president is speaking a different language. Ill give you just a few kpa examples. Early warning signs suggest the Trump Administration will appoint people who will scale back enforcement. Peter theo has mocked free markets saying compensation is for losers, the acting for the fdc said it quote imposed a unnecessary cost on business end quote. Here is another example in a typical administration the enforcement decisions of the 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 bear and mon santo discussed their 66 billion merger which is currently being reviewed by the justice department, we had a hearing actually 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 an invest in research and development. This was an uncharacteristic development and raises concerns that the president may want to negotiate merger settlements himself. After that meeting i specifically at attorney general sessions if he would defend the end pence independence of the antitrust committee and he said he would and i will hold him to that commitment. Chairman lee and i have developed a strong bipartisan approach to the committee. Also means holding nominees to the antitrust division and the fdc to these high standards, but i want to make one thing clear here, its not enough to prevent a deterioration of enforcement. The stakes are too high to only play defense. Thats why im announcing that i will introduce in the coming weeks and months a package of bills with three goals, first a check on merger conditions, the issue raised earlier, effective enforcement depends on feedback, this much is clear, we need to give the agencies the tools to check whether theyre efforts have been successful. I spoke earlier about the ftcs recent merger retrospective study. It was only done first since 1999. We have do better. Provide parties on a yearly basis, after a settlement has been reached. Then agencies could easy review the effectiveness of past settlements which would inform their future decisions. I believe we can devisign a requirement without unduly burdening the companies that come before the government for approval. The ftc or department of justice should be required to gather information of how ownership affects competition, Congress Needs this information to understand whether theres a problem and when Investment Fund ownership is competitive or benign. We need to understand how prevalent they are and whether current antitrust tools are efficient. Antitrust fees paid for merger 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 and parties involved in large deals are simply not paying their fair share. For example, each party is currently required to pay 280,000 for a deal valued at 807 million or more, but even deals of 100 times that size. Which demand greater resources for the government to review are stuck at 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 mega deals that reach tens or even hundreds of billions of dollars we need a new category of fees that reflects the complexity of mega mergers and serious impact on consumers. As one potential model president obamas 2017 budget would have doubled charges for deals over 1 billion. Even then the changed amount would be less than 1 percent 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 by the way, improve capitalism. Capitalism is based on fair play and equal competition, 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 its not bad or consumers and america it is also bad for business and so if any of the other reasons dont work here, i hope that will. All of this can be done. It doesnt take a miracle it just simply takes a will to support our system that we have used so well in america a system of free market. A system of checks and balances a system where we put people first. Protecting competition speaks to the basic principals of Economic Opportunity and fairness. So as i said at the beginning, our goal is to make antitrust cool again and if the administration wont do it, we will. Thank you. [ applause ] laughter and antitrust, thank you senator klobuchar for our remarks. The people are lucky to have a person like her in the senate. She spoke about growing economic power in our country and how robust antitrust enforcement can help strengthen our economy, she doesnt talk the talk, but also walks the walks, a good reminder that we need the hold our elected officials accountable not for words but actions and one of the most actions is to appoint judge gorsuch to the Supreme Court. Activisted fueled by dark money never succeed through normal legislative or electoral process, now the same people and organizations are spendeling millions of dollars to promote gorsuchs nomination. Not hard to see why. His legal career was largely supporting large corporations. The broad question present bid this nomination is will we allow the court to become a fullfledged promoter of procorporate anticonsumer, aen antiworker antiSmall Business into the future. That has critical implications between the relationship between money and power. Will america return to being a land of opportunity for all or place where the great concentrated powers shut out everyone else from the halls of congress and even the ballot box . We at the center for American Progress believe that the senate should firmly reject judge gorsuchs nomination, but the gorsuch no, mamination is not only topic to cover today. We have a group of experts to discuss conservative approach on antitrust, and how it impact it is lives of every day americans and what the trump approach and Gorsuch Nomination may mean for the future. Im going introduce the panel. I would like to acknowledge the leadership of andy green and michelle duondo for work in pulling the panel together. Eliz bebeth wid rrwidra, todd c a member of the cap family, just doesnt work here anymore. You are a member of our family. Also one of our nations most effective civil rights activists. Gupta, one of the litigation wronged by power, Jonathan Cantor at paul wise, a leading thinker on antitrust law and lilian sosolarno. Their discussion will begin momentarily but first my pleasure to introduce my moderator, sabil lemon, his book, democracy against nomination released by Oxford University press, addresses the tension between economic relation new forms of power and the context of the Financial Regulation debate. It has a new report on gorsuch available by the door and late fr th er this week the Legal Defense fund will release a report looking at his record. Theres also a issue brief on corporate person hood. Please join me in welcoming sabil and our distinguished panelists to the stage. Plaus [ applause ] thanks so much to winnie and senator globe shars staff. We have such a range to get into, maybe let me start as a broad thread to start the conversation of a little bit we heard already today. A lot of things we expect from an equitable and fair economy dont just happen. Theyre a product of law and policy. What that means is that when you have concentrations of economic power unchecked by law and regulation, a lot of things that we worry about get reproduced x exclusion, inequality, lack of accountability. I think these are things each speakers are going to raise. Jonathan maybe we can start with you, we heard from the senator about the importance of merger enforcement, maybe you can give us a broader view about antitrust law the landscape and how we got to this point where we have a big problem of economic concentration. Sure an thanks again for having me, i was extremely hartened by the comments by senator klobuchar and bringing the Core Concepts to a very accessible level one that make as a lot of sense and common sense. Im grateful for her to equating antitrust with cool, because i can tell my twelveyearold an nine yearly who think i am extraordinary uncool that im associated with something thats hip, so how did we get here . And senator klobuchar discuss this but we saw a revolution in the 70s led by judge poz nner a robert bork and transformed it on addressing concentration of power not just because its good for prices but because its not for our economy and democracy more generally and really transforming into something that was almost singularly focused on what they call consumer welfare price, and over the years, 70s, 80s until today we have a word that where its been narrowed substantially in terms of what it considers, focused almost singularly on price affects to the exclusion of competition, innovation, and the effect on our democracy more broadly. Theres a lot of discussion around mergers in the context of antitrust but thinking about the impact of the nomination of judge gorsuch and where that might lead in terms of antitrust i cant stop an think about the other aspects the sherman act section 2 specifically, they come from railroads, and clogging the arteries of competition and what that means for our society. And you know its interesting because in an era where we have perhaps more concentration than we have ever seen the consequences for abusing that position once you achieve dominance the consequences are about as low as we have ever seen them and in large part thats because theres really under enforcement of what they call section 2 of the sherman act, monoplization. And it has eroded based on the thinking from the 70s has eroded whats possible in bringing cases against dominant companies that abuse market power and not to bore our folks with wonky legal cases, but a number of others have really erode what had the courts and agencies consider when examining anticompetitive conduct or allegations of anticompetitive conduct, i have talked to them about case whereas a Company Might be abusing its market power and theres this view of the world that as long as you have achieved that power lawfully you can use it any way you want with very few consequences and this is an issue, and if you go back and perhaps no single case at the Supreme Court has done more damage than the trinko case, first its important to help put it into perspective, hes an antitruss antitrust professor, sometimes theres temptation to overread especially if they had clerks with one position or an issue they werent steeped in and were just trying to cut surface deep but looking at the small number of opinions by judge gorsuch, hes somebody who understands antitrust and teaches it. The other piece in trying to understand the tea leaves, he talks about aspects of Supreme Court cases and many respects amplifies this sort of narrow scope of monopolization enforcement. Theres a lot of debate about the impact of the cases like trinko. Theres a lot not necessarily binding they call dicta. A lot of the opinions by judge gorsuch focus on the dicta, the nonbinding aspect os it was opinion but treat them as if theyre absolute black letter law and follow them up as to what senator koeb shar refers to as bork from the 1970s, so it does not necessarily suggest were going to see a change of whats legally possible at the Supreme Court but if anything might see a reinforcing or doubling down of the press come down over the last 20 years and somebody who might be proenforcement that might be concerning. Thats super helpful and youre giving us a sense that theres a risk or one of the risks is that judge gorsuch could as a on the bench could continue to narrow the boundaries of what antitrust law covers which then makes it harder for competitors and other actors to hold those market dominant players accountable through court and litigation, so to get a sense of implications of that i want to bring you lilly into the conversation talk about how you see this conversation of concentration and lack of accountability for large market arguments how that affects Economic Opportunity as you have seen in your experience. Sure. And thank you. And i think this is such an important opportunity im someone from Rural America. I am that endangered speeshcys called a rural manufacture and i know what its like to put together a company and try to get your products and find out there really isnt an open market for the products that you sell. Before i was an obama appoint ee appointeeappointeesobamaappointi was always surprised there seemed like a morph almost every time i would present the case or obser obstacles its all about pricing, if we can get the consumers pricing thats what were interested in, and im thinking what about innovation, opportunities for Small Business and there was always this i dont know what happened, im not a lawyer im a legal scholar, but i am a Small Business advocate and rural manufacturing advocate and there seems to be some kind of morph that happened where there was this crazy idea that if you had it bigger that the prices would come down and i think its sort of i didnt have a great education in rural texas but i knew one thing, price costs are one thing, price is another. And when you do volumes, yes youre costs come down, that has d nothing to do with price. When were wholesale rejected the industry we were in an 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 its different. Maybe theres the agencies have the resources they need. Maybe theres an opportunity to talk about it. And 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 problems and at first im thinking maybe im looking through my own prism and listening to my own selfand not listening to them, for sure what i heard with them trying to sell, when there was only one seller its a problem, these anticompetitive logistics, antidistribution, about pricing, bundling, in the trade where the little guys dont have a seat at the table and the regs are made by the big guys and i found myself checking in five years maybe im not the best person because i lived it. But then the number two at the market sba who i never met before, she and i just happened to testify on the Small Business committee on duplication or Something Like that and after the hearing she said you over at usda do you collect data that when businesses fail or you cant give them a loan what the reason is . And i said yeah, weve got some kind of form that asks that for farmers and Small Businesses but no one has really tracked it and the defaults, we have a whole range of reasons and no one is really looking into it and she said in her experience and her name is anne mary mellam, she said what i saw for businesses trying to get loans and what i see in my role at sba the concentration of power we dont know where theyre going to sell to, when they default its because somebody has compiled a bunch of folks an they have got one buyer and she said we really have to do something about it and i said yeah, we should talk to the government and we both laughed at each other and said we are the government and we looked at opportunities and actually i know its about resources with some of the federal agencies that this is on their watch, but as a former obama official, i did go to the mec, in this country where you think of ways to increase competitiveness, and business startups. All of this is going on. And your 500pound gorilla, we cant do something about. 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 underlying deal that people think bigger is better. Or that we have been cajoled into this idea that big is good for consumers and the government is here to protect consumers and the pricing piece is so important. While congress and agencies are trying everything they can do for entrepreneurship. And Small Business startups. This is not a republican or democrat problem, this inability to correct this causes a real problem. I talked 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. Weve 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. I know what happened in my own industry and in agriculture. How can you possibly get capital when folks of treasure troves of capital, and dont 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. 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. 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 affect 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 affects 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. I actually think that ordinary americans understand that the economy is increasingly stacked against them. They understand there is rising inequality. They understand that they dont have a fair shot in the way that 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 cant enforce it. There is a congressman that famously said, you write the substance, i will write the procedure, and i will screw you every time. 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 dont 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 ive worked on in the past. And that i think shining a light on this phenomenon. We all understand that there are these laws that say, for example, that companies cant cheat you when they sell you a product. That people cant charge women more than men in the workplace. That you cant have monopoly power, that can be challenged. There are only two there are two ways to do it, either through public enforcement whether its the federal government or state agencies or through private litigation. In the United States, we have a balance of both things. We dont have as much heavyhanded 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 dont have time to look through the bills and figure out the many ways people are ripping me off. If you talk about discrimination the workplace whether its paid discrimination, you need 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 54 cases where the late Justice Scalia weighed in, limit the people from doing this. I did a case where it was people who had bought cell phones, alleging that 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 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 1920s 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 bring these claims oneonone. 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 claim. The effect of a decision like that is that all of those claims go away. Im not so concerned as a customer. Im not concerned whether i get my 30 back. What i am concerned about is the deterrence effect, the fact that if a lawsuit like that cannot be brought, theres 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 were 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. Its 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 that because the Credit Card Companies have so much monopoly power, the merchants dont 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 could put together the resources to bring the case, were 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 Scalias 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 victims of all rights to challenge that very monopoly power. Its crazy. You would not believe it if it were explained to you in that way. That the Supreme Court could do this and the Supreme Court response was, too darn bad. I think that is whats 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 classactions 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 liberals addiction to lawsuits. I think that is something we should be concerned about. I dont think people who voted for this president voted for that. I think they thought they would get somebody who would shake things up and work for the little guy, not large banks and companies. 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 exclusion of the opportunity. Todd, you have worked on these issues intersecting with 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. I also want to thank cap for inviting all of us to this conversation. For me and the Legal Defense fund, its impossible to talk about economic exclusion without talking about the role of discrimination, particularly race dissemination, in fostering that conclusion. Its 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 its 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 dont 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. Fast forward to the 1970s, 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 as well as any judicial nominee and this administration in general. There are serious concerns about access to justice with class action and serious concerns regarding judge gorsuchs record looking at class certification but also his propensity to grant motions to dismiss and prevent people from getting to juries. 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. When parsing facts. 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 thats not discriminatory. 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. Far beyond, 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 of 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. Thank you so much. I think this discussion shows the many ways in which the Supreme Court affects the daily lives of all of us. Its 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 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 trends of probusiness environment at the expense of everyday working americans. One thing that the Constitutional Center has done is look at the way that trend has occurred in the Supreme Court. 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 courts. He says we have seen groups like the aclu and ldf using courts 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 probusiness and put the interest of business at the top. So 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. Theusconstitution. Org. 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 probusiness 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 important is not just that they are winning, its the way they are winning. There is a sharp ideological divide that you did not see back when you were on the burger court. What the more liberal justice and your more conservative justice voting for big business about the same amount of the time. Now we have the most probusiness 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 probusiness or not. What i think is important and one thing that has been brought out by this discussion is that its not result oriented. We have to do that a little bit to get the numbers but its 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 seems to bend over backwards to accommodate the interests of big business at the expense of the little guy. They dont seem to show that same solicitude when youre looking at access to justice cases for those of us who are individual americans as opposed to access to justice cases when youre a big business that wants justice in an arbitration proceeding. The arbitration case is a perfect example. Its a vast overreading of the act, which he points out. When we look at judge gorsuchs record, obviously its 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 dont take a position until after the hearings. So, were not opposing. We do have some concerns. Its precisely on the overreading 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 has gotten some press where 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, its 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 and to warmth. He was fired. The majority says he is protected under the federal safety law for whistleblowers and people who refuse to operate, who failed to operate equipment in an unsafe manner. Gorsuch engages in dissent in a cramped acontextual reading of the statute to say, the statutes 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. Its not that he would have voted for business, its 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 dont even 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 Judicial Independence overall given the context in which donald trump nominated him with all of these litmus tests and whether he will take each case as it comes, look at the facts and look at the law. 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 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 highprofile issues that all of his 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. Its a strong lesson coming from all of you on the panel. The law in general but then the Supreme Court in particular, at the center of our Legal Development has a huge Ripple Effect on the degree to which our economy is inclusionary 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 time for questions 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. Weve been talking retroactively. Looking ahead, what are some of the things as a community should be particularly focused on over the next few months . As the antitrust wonk on the panel, or among them, for me, the real question is going to be 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 any one case for me. The question is, will the Supreme 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 dont 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 actions. 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. Its part of their employment agreement. The National Labor Relations Board has said thats an unfair labor practice. The question before the Supreme Court will be, does the view when or does the federal arbitration act win . They 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. I think we should be very concerned about what he would do in that case. I think thats a great point that while these things are happening that distract us, or that 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 theres a important case this term that has to do with the ability of the city of miami in that particular case, but localities in general to hold big banks like wells fargo, bank of america, accountable when they engage in racially discriminatory, predatory mortgage lending practices that have targeted and, in many cases, you this are rated communities of color. Its an important case about whether the Supreme Court is willing to hold accountable big corporations when they engage in wrongdoing. For me, its the context within which all of this is happening. Real life does not operate in silos but conservatives dont 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 a process to get put in place. The other context which goes to the access to justice piece is the fact that the attorney general may not be the partner he once was. Or the position once 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 has important Law Enforcement responsibilities regarding employment discrimination. We need to be very careful about access to justice and intervening 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 administration . It seems to be acting very bullishly to undermine our rights. I take it more as a messaging, 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, peoples heads spin, not turn it into and not add on 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 youre talking politics, switching agencies or lobbying or advocacy, has to be that this part has to be fixed. That should be the plank of the economic populist message we use as progressives. I believe we have a couple of minutes for questions. Thank you, im a private practitioner in washington and a professor at georgetown law school. I have fought just about every paytv merger that has come up before the fcc and doj. Ive got fellow warriors in the room who remember this. When senator klobuchar said lets make antitrust cool again, as many of the panelists said, amen. Inherent in that is politics. The point is to make something that can be very esoteric more tangible to the public. You cant think of a more important intersection 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 see a higher profile for any trust enforcement and if we understand this to be a political and legal question, wouldnt it make sense to start with the things that people understand the most. Some words ive heard today beer, pharmaceuticals, i would add gasoline. In other words, there are parts of the Economy Today where people hate the provider or love the product. Its not a hard sell to say to them, you are being screwed. Doesnt it make sense to start there before we get to the esoterica . Lets take this question as well. We can do them in batches. In terms of a 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. However much most of us would like to see that overturned, doesnt that come from any candidate named by either party . They have pledged to vote for or overturn or uphold a controversial decision, shouldnt any intelligent candidate say it would depend on the particular circumstances of a case that is likely to go before the court and therefore i cannot make any commitment to overturn or to 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 its the job of our United States senators 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 him questions about antitrust and what he teaches and his philosophy in the subject and they should listen to his answers carefully. They should use that as the basis to determine how they will vote. I agree with you that the litmus tests are problematic. That is part of the reason why gorsuch goes into this hearing with such a high burden. We normally have a little bit of theater where the senators ask questions and the nominees give no answer. 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 trail but one thing he was consistent on was his language about litmus tests and the willing to overturn roe versus 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 has promised to people who in many cases have the Supreme Court as 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 versus wade. You naturally have the question of, did you make that promise . Did someone on your behalf guarantee you would vote in a certain way in this particular case . 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 normal course of things in this particular hearing because of these of these litmus tests. Its wrong to have a nominee guarantee a vote in return for having his nomination be put forward. Just to connect the two questions quickly, i agree with what has been said. Even though we have this kabuki dance where people ask these questions and the candidates dont answer, i want to make an argument in favor of the value of that process even if it does not yield specific answers. This is a teaching moment. The reason folks are in the room now to talk about these issues and hear us talk about what the court has been up to is because there is a nomination. When it comes to the constitution, its very difficult and frustrating because there is not much and that we as citizens can do. You mentioned citizens united. 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 and mobilized about these issues. I would like to add to the lawyer 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. One of the takeaways from me for hearing this 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 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. Lets take one more round of questions. In the back and then the gentleman up here. We will take both questions and then do them as a group. In 1938, roosevelt gave a speech on monopoly power and said private concentrations of power taking over government is the definition of fascism. I think its pretty obvious we are seeing similar trends today. You see it in the political dialogue but also in forums where we talk about the Supreme Court. It would be too polite to mention it so i will mention it. Thats what president roosevelt said. Since he said it, it doesnt make me sound rude. If gorsuch gets on the court and we can be honest and say, the concentration of power will be not just, its been going on for 30 years. It has to be to change our institutional relationship to the court. What does that look like . Thank you, my question is, for those who have extensively looked at judge gorsuchs body of work, do you find somebody who you conclude is result oriented and is seeking some legal way to reach a probusiness decision in every case or do you find somebody thats primarily Legal Process driven and its because he is a strong believer in textualism and originalism that he tends to gravitate 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 whats happening with this administration. You talk about concentration of power, this administration has had overreach on the executive order side of things. The muslim ban. Not consulting with the experts, career or otherwise before making a decision. That was not a mistake. There is a desire to run things in a way that excludes transparency. I think the context i talked about before needs to be on the table when youre asking someone why you would agree to be partners with this administration or agree to an appointment. How independent will you be in evaluating the administrations decision on any particular matter . Whether its the muslim ban or anything else. Regarding your question, the answer is yes. I think that, from the record we have seen, focusing on employment discrimination, as an originalist, 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 that more often than not results in the employers being victorious and he seems skeptical to the claims of plaintiffs. There may be a philosophy about using the court to advance claims, maybe 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 plaintiffs claims in the employment context and someone who is willing to breathe new life, in this case hobby lobby to side with employers. I think that brings up an important lens through which to look at his record. Gorsuch claims to be an originalist. I will say right here as a progressive, there is nothing about originalism despite what conservatives will tell you, that necessitates conservatism. The problem we have with a lot of conservative originalists is they think the constitution ended with the Second Amendment or maybe the tenth amendment. When you are an originalist 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 Peoples 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 pay 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 concern when you look at these cases like employment discrimination cases and you see gorsuchs originalism coming through in these conservative cases but not a ringing endorsement of history 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 thats something that needs to be explored at the hearing. I think thats a very good point. Very few justices would say brown versus board of education was wrongly decided. Gorsuch is on record saying it was rightly decided, and Justice Roberts as well. Sort of the class action types of processes, as well as using experts to examine facts. What about other kinds of plaintiff cases that come before him . Is it just to say that brown was wrong is anathema or are the reasons why he seems to be 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. Creating principles that people can move education forward, if its law, bring cases. If its academia, bring new blood, new ideas 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 this election, as a country that is desperate for a movement but perhaps not getting everything a bargain 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 cant be just around social issues. It has to be around Economic Issues as well. Thats a good place to pause. We are time but thanks to everyone. Thanks to the panel for a great discussion. [ applause ] the Federal Reserve is holding their open markets meeting today in washington. After that meeting, the chair, janet yellen, will speak with reporters. The news briefing coming up at 2 30 p. M. Eastern on cspan 3. And the Senate Judiciary Committee Hearing on cspan. President donald trump is on the road today, rallying to support the Republican Health care plan. He will be live today at 7 30 p. M. Eastern. And neil gorsuch, the confirmation hearing. Our coverage of the hearings getting under way monday, 11 00 a. M. Eastern, on cspan 3. With the confirmation hearing for neil gorsuch starting next week, thursday at 8 00 p. M. Eastern, well look at the confirmation hearings of all eight current Supreme Court justices. Watch thursday at 8 00 p. M. Eastern on cspan 2. Now, former clerks hear judge neil gorsuch hear him talk about his ideology. This is about an hour. Good afternoon. Welcome to the heritage foundation. For those inhouse, we would ask that mobile devices have been silenced or turned off. And those watching online are welcome to send comments at any time by email
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