Monopoly is no game to Clinton's trustbuster - Assistant Attorney General Anne K. Bingaman takes on business monopolies, cartels and other unfair business dealings - includes related article on controversial investigation into Microsoft's business practices

Insight on the News, Nov 1, 1993 by Kenneth Silber

Summary: President Clinton's antitrust chief, Assistant Attorney General Anne K. Bingaman, is stepping up efforts to combat monopolies, cartels and unfair business practices. But critics say overzealous enforcement may harm American industries and consumers. Meanwhile, conservative federal judges may be an obstacle to the Justice Department's antitrust ambitions.

Anne K. Bingaman isn't a celebrity, and the work she does may seem remote from the everyday concerns of most Americans. But as the assistant attorney general in charge of the Justice Department's antitrust division, Bingaman is responsible for policies that could have a far-reaching impact on businesses and consumers alike.

The nation's antitrust laws are aimed at fighting monopolies and unfair business practices. By ensuring that there is genuine competition among companies, many experts argue, such regulation leads to lower prices and better products for customers. "If the process works right, it produces the best combination of quality, service, product, price and long-term public benefit," says Alan H. Silberman, chairman of the American Bar Association's antitrust section.

Some analysts regard antitrust laws as a way to protect society against domination by large corporations. In this view, antitrust rules are similar to the government's separation of powers - they prevent authority from being concentrated in too few hands. "The heart of the antitrust issue goes to the question of economic power in a free society," says James Brock, an economist at Miami University in Oxford, Ohio, and coauthor of Antitrust Economics on Trial: A Dialogue on the New Laissez-Faire.

Yet an increasingly skeptical attitude toward antitrust rules developed during the 1970s and 1980s, as economists asserted that markets in fact were more competitive - and less subject to monopoly or manipulation - than previously believed. Excessive antitrust enforcement, it was argued, could prevent companies from developing new technologies or better methods of organization. In addition, there was growing concern about possible abuses of power by government. Legal theorists noted that antitrust laws, being vaguely worded, gave regulators a lot of discretion in deciding how they should be applied.

This skepticism, sometimes called "anti-antitrust," was reflected in the policies of the Reagan administration. During the 1980s, officials took strong action against price-fixing conspiracies, especially in the construction industry, but scaled back the government's efforts to block corporate mergers or break up monopolies. Meanwhile, the administration's appointees to the federal judiciary sought to narrow the scope of antitrust law.

"The threats to competition and the threats to the wilfare of consumers in reality are probably not as great as some economists and antitrust lawyers posited 20 years ago," says Washington attorney Charles F. Rule, Reagan's antitrust chief from 1986 to 1989. "And the danger is that if people see too many bogeymen behind the bushes and generate a whole big antitrust apparatus to go after those bogeymen, you are going to have counterproductive results."

Critics of Reagan antitrust policy charge that the focus on small-time price fixers allowed more important violators to go unpunished. "What we did, essentially, was go rabbit hunting while the elephants roamed at will," says Brock. In his view, the flurry of mergers in the 1980s placed too much power in the hands of big companies.

The Bush administration, seeking to distance itself from its predecessor's policies, became more assertive in challenging mergers and other corporate activities. Now President Clinton's administration "seems. poised to take things yet a step farther," according to William E. Kovacic, a professor at George Mason University Law School in Arlington, Va.

This administration has been quick to put its mark on antitrust policy. In recent months, Bingaman's division has undertaken a controversial investigation of software maker Microsoft Corp., repealed relatively permissive guidelines from the Reagan era governing relations among manufacturers and distributors, and pressed for legislation that would make it easier to prosecute international cartels. Bingaman has promised to increase her division's scrutiny of mergers and has taken a hard line against granting industries exemptions from antitrust liability. "The signals that they're sending out indicate that they want to become more aggressive in enforcing the law - almost, one might think, for aggression's sake," says Rule.

Bingaman, 50, has spent much of her career pursuing alleged antitrust violators. She taught at the University of New Mexico Law School during the 1970s and has been active in women's and children's issues, leading successful efforts in New Mexico for the adoption of a state Equal Rights Amendment and the opening of a state military academy to women. (Bingaman is married to Democratic Sen. Jeff Bingaman of New Mexico, is an acquaintance of Hillary Rodham Clinton and has done legal work for the Children's Defense Fund.) But her reputation is based on her litigation skills.