The Merger Filing Fee Modernization Act is a Down Payment on the Future of Antitrust Enforcement

By: Michael Kades (Washington Center for Equitable Growth)

The Senate Judiciary Committee is likely to approve a bipartisan antitrust bill soon that will be a down payment on reviving effective antitrust enforcement in the United States. The Merger Filing Fee Modernization Act of 2021, introduced by Sens. Amy Klobuchar (D-MN) and Charles Grassley (R-IA), would increase enforcement resources for the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice by more than $154 million, or almost 30 percent. It would also adjust the merger filing fees system so that fees would more equitably fall on larger deals.

Since early 2018, the Washington Center for Equitable Growth has focused on the need for policymakers to increase funding for antitrust enforcement. A 2019 report, titled “The state of U.S. federal antitrust enforcement,” explores the issue in detail and analyzes the inequities in the current funding system, which result in smaller deals paying a greater share, proportionately, of merger filing fees. And our 2020 report, “Restoring competition in the United States: A vision for antitrust enforcement for the next administration and Congress,” co-authored by seven antitrust experts, advocates for a substantial $600 million increase in funding for antitrust enforcement.

A growing body of evidence helps create broad consensus that the antitrust enforcement agencies need more resources to achieve their mission. Sen. Grassley’s co-sponsorship of the bill reflects new support from the right for allocating these badly needed resources. And the soon-to-be newest commissioner of the Federal Trade Commission, Lina Kahn, an associate professor at Columbia Law School, said in a recent confirmation hearing that measures like the Merger Filing Fee Modernization Act of 2021 “make sense.”

The bill alone will not solve the market power problem in the U.S. economy, but increasing the enforcers’ capacity to bring more cases is a necessary first step. This column explores current antitrust enforcement funding streams and merger filing fees structures, why policymakers must increase funding for and modernize antitrust enforcement, and how the new bill would impact funding for the antitrust agencies and the merger filing fee system…

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