FC: How next president will handle technology, by Bill Kovacic

[Declan McCullagh <declan () well com>]

                        http://www.cluebot.com/article.pl?sid=00/11/07/2011211&mode=thread

   How Next President Will Handle Tech
   posted by cicero on Tuesday November 07, @03:07PM
   from the in-other-words-not-that-big-of-a-difference dept.

   In the spirit of one last Gore-vs-Bush comparison in the waning
   moments before the polls close, we offer you the following:
   Thoughts from Bill Kovacic, a professor of law at George Washington
   University, a former FTC attorney, and a pretty smart guy too. Kovacic
   kindly gives us his predictions on how federal agencies would act
   under either major party candidate.

   ANTITRUST:

   If Bush were to win, a major area of antitrust enforcement change
   would be a reduction in federal government resources devoted to
   challenging misconduct by dominant firms. The federal agencies would
   be unlikely to literally abandon existing cases such as Microsoft and
   American Airlines (predatory pricing). The federal agencies would be
   willing, however, to settle these matters on terms less demanding than
   those proposed by the Clinton antitrust agencies. It is likely that
   the federal agencies in a Bush administration would be unlikely to
   initiate new matters along the lines of the Microsoft or Intel cases.

   The state governments seem determined to play out the Microsoft case
   until the bitter end. This means that Microsoft, even if it is able to
   negotiate a conduct-oriented settlement with DOJ, will necessarily
   have to wage war to the end with the state AGs.

   I believe the biggest prize in the election, from the perspective of
   the technology community and business operators generally, is the
   power to pick federal judges. As a group, judges appointed by Bush are
   likely to be less confident than Gore appointees in the powers of
   government agencies to diagnose market failures accurately and to
   prescribe cures that do more harm than good. This greater measure of
   skepticism will manifest itself over time in judicial interpretations
   that narrow, rather than expand, the zone of economic regulation in
   areas such as antitrust.

   Many of the federal courts today feature a roughly even split between
   judges appointed by Presidents Carter and Clinton and judges appointed
   by Presidents Reagan and Bush. The identity of the appointing
   president is not a perfect proxy for regulatory preferences, but the
   Reagan/Bush appointees include a larger percentage of what I would
   call "regulation skeptics" than the Carter/Clinton appointees. If Gore
   wins, we will gradually see a number of key courts tip in the
   direction of greater enthusiasm or tolerance for regulatory
   intervention. The DC Circuit, for example, presently has three
   vacancies. Filling those positions could influence the disposition of
   many key appeals from regulatory agencies such as EPA and the FCC.
   Microsoft's prospects for success before the DC Circuit would be much
   weaker, for example, if Ronald Reagan had not appointed two Chicago
   School-minded academics named Steve Williams and Doug Ginsburg to the
   DC Circuit. If Gore wins, the courts would not tip immediately, but by
   the year 2005-06 we would begin to see court of appeals decisions that
   press in the direction of stronger regulatory intervention.

   And this does not even mention the Supreme Court. If there are
   vacancies on the Court in the next few years, the power to name new
   justices will influence the resolution of many decisions affecting the
   regulatory process.

   But I think that all of the attention to the Supreme Court obscures
   the importance of the appointments to the lower federal courts, where
   most of the heavy lifting in the federal judiciary takes place. Of all
   modern presidencies, the Reagan White House alone appreciated the
   power of federal judges to shape the rules of the free enterprise
   system and went about appointing about a dozen academics who would not
   only decide cases but would shape the law. The Clinton White House
   essentially ignored or did not care about this lesson. I have to think
   that a Gore White House will understand what is at stake and will move
   more in the direction of a Reagan model of judicial selection, in
   which the business side of the judicial agenda is taken seriously and
   not simply slighted as a stepchild of the social agenda.

   PRIVACY:

   I think the most likely FTC chairman under Bush in the near term would
   be Tom Leary, simply because Leary has more expertise in the relevant
   subject matter.

   If the Democrats sweep the White House, the House of Representatives,
   and the Senate, we could witness a major expansion of the regulatory
   state -- especially if Gore's announced desire to hammer corporate
   plutocrats is genuine. In this state of affairs, regulatory agencies
   will get more money from Congress and strong exhortation from
   congressional leaders -- especially in the house -- to be more
   aggressive, and Gore appointees to the courts will be more tolerant of
   the expanded regulatory agenda.

   If the Republicans win the Congress -- or at least win the Senate --
   they can retard the expansion of the regulators' resources and can
   slow or deny the appointment of judges with manifestly expansive
   preferences for intervention.

   FCC/TELECOM:

   Gore regulatory appointees are more likely than Bush appointees to
   have more confidence in government intervention in the telecom field.
   If the Republicans sweep the Congress, we will see continuing pressure
   to reform/retrench the FCC's role in policing telecom mergers. If the
   Democrats sweep the Congress, the FCC's existing approach to merger
   control will persist.

###




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