"COMPETITION POLICY IN ITS BROADEST SENSE": CAN ANTITRUST ENFORCEMENT BE A TOOL TO COMBAT SYSTEMIC RACISM?

By Rosa M. Morales¹

The debate among academics, lawyers, politicians, and others about the proper role of antitrust policy in addressing wealth inequality—and by extension, racial inequality—in the United States has intensified. Some critics blame conservative judicial interpretations and applications of antitrust law for increasing concentrations of corporate power, which they argue has contributed to growing wealth inequality, and in turn, racial economic inequality. As such, they posit, modern antitrust enforcement—or lack thereof—has aided and perpetuated systemic racism.

In the past year, a growing chorus has called for antitrust laws to be deployed as a tool to combat systemic racism. Proponents argue that an anti-racist approach to enforcement is consistent with the original purposes of the U.S. antitrust laws, which they claim was to rein in corporate concentrations of power and ensure equal access to markets.² Indeed, finding ways to prevent antitrust enforcement from perpetuating structural inequality will bring U.S. competition policy closer to its stated policy goals of restoring balance and fairness in the marketplace, and promote racial equity.³

Among the chief proponents of anti-racist antitrust enforcement is Federal Trade Commission ("FTC") Commissioner Rebecca Kelly Slaughter, who in September 2020 ignited a conversation about whether and how antitrust enforcement can and should be anti-racist.⁴ Slaughter’s statements echo the Biden/Harris Administration’s prescription for a "whole-of-government" approach for eradicating systemic racism, including through competition policy and enforcement.⁵ Her comments also come at the cusp of what may