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FC: How next president will handle technology, by Bill Kovacic
From: Declan McCullagh <declan () well com>
Date: Tue, 07 Nov 2000 15:07:05 -0500
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. ### ------------------------------------------------------------------------- POLITECH -- the moderated mailing list of politics and technology You may redistribute this message freely if it remains intact. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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