The near-term prospects for significantly boosting antitrust enforcement appropriations look doubtful.

As I mentioned last month in Antitrust Enforcers Must Have More Funding, the Antitrust Division in the Department of Justice and the Federal Trade Commission need a boost of $340 million from current funding just to return them (in constant dollars) to 1979 levels–about $100 million for the Antitrust Division and $240 million for the FTC. 

Yet these big numbers understate enforcers’ resource needs for multiple reasons, including:

  • the tougher doctrinal standards in the wake of Robert Bork’s 1978 The Antitrust Paradox,
  • greater concentration of markets,
  • rising litigation costs,
  • the need for new digital and AI competencies, and
  • bigger disparities between corporate and public resources. 

A serious effort to restore the U.S economy to the competitive vigor of the 1970s would therefore require a funding rise that almost doubles the $53 million that the Senate Appropriations Committee proposed (in S. 2321) for the Antitrust Division and 12 times the $20 million it earmarked for the Federal Trade Commission (in S. 2309).

When you consider that S. 2309 would give the FTC only 12.5 percent of the $160 million boost it requested, S. 2321’s promise of more than half the $99,821,000 increase the Antitrust Division sought might look generous. But S. 2321 also transfers $50 million of the Antitrust Division’s money to another part of the Department of Justice, the Justice Operations, Management, and Accountability (JOM) segment, which houses DOJ’s top leadership, including the Attorney General.

Does that mean the Antitrust Division will fare even worse under the Senate appropriations bills than the FTC, with the Division getting only 3 percent of its request for a $99.8 million funding increase?

I suspect it does. For fiscal 2024, JOM requested a $67.5 million funding boost–to $212.5 million from $145 million–but S. 2321 actually cuts JOM’s appropriation by $5 million to $140 million. The $50 million transfer from the Antitrust Division would bring JOM’s appropriations to $190 million, still $22.5 million short of JOM’s ask. While Attorney General Merrill Garland might send some of the funds to the AD, doing so would shortchange JOM. That seems unlikely.

S. 2321 offers some hope of a further boost for the Antitrust Division, which appears to have received less harsh criticism for its pro-enforcement stance than the FTC has. Under the Senate bill, if Hart-Scott-Rodino (HSR) pre-merger notification fees exceed $278 million in fiscal 2024, the excess would go to the Antitrust Division. But the Attorney General—not the Antitrust Division—would have to “submit a spending plan” to the House and Senate appropriations committees before making the funds available to the AD. 

Although S. 2321 grants authority for using any fees above $278 million without further approval of the appropriations committees or of Congress itself—under the Chadra case from 1983, Congress may not reserve a right to veto post-appropriation uses of funds—the availability of any extra funds will depend on the number and size of merger deals requiring HSR scrutiny during fiscal 2024 and on the Attorney General’s priorities for the Antitrust Division.

Now for the bad news.

The House Appropriations Committee’s spending bills propose spending cuts for antitrust enforcers. They would fund the Antitrust Division at $192.8 million and the FTC at $376.5 million—$32.2 million and $53.4 million, respectively, below their appropriations for fiscal 2023.

While the Senate funding bills do not suggest hostility to a more assertive enforcement posture, the House’s proposals do. With the Senate bills giving antitrust appropriations a low priority, the enforcement agencies will need to make do in fiscal 2024 with fewer resources than they had almost half a century ago.

Any significant rise must await the outcome of the 2024 election.