Presidential election or no presidential election, healthcare antitrust enforcement will never return to the let-the-market decide days of the Ronald Reagan administration.
"No matter who is elected we are not going to back to the 1980s," said Phillip Proger, a healthcare antitrust attorney with the Washington office of Jones, Day, Reavis & Pogue.
"We've come too far for that," Proger said. "No matter which candidate is elected, we assuredly will continue the high-profile, more-aggressive antitrust enforcement of the 1990s" rather than return to the hands-off policies of the 1980s.
Proger said the main difference between Democratic candidate Vice President Al Gore and GOP nominee Texas Gov. George W. Bush would be a more "interventionist, populist antitrust enforcement" under Gore vs. a "less aggressive, less interventionist philosophy" under Bush.
Though neither candidate has publicly declared his antitrust appointments, insiders said Gore would likely retain Douglas Melamed in the job of assistant attorney general in charge of antitrust. Melamed was recently appointed to replace Joel Klein in that important U.S. Justice Department post. Federal Trade Commission Chairman Robert Pitofsky is the insiders' pick to continue in that role if he chooses.
A Bush administration might appoint Washington lawyer Timothy Muris as assistant attorney general in charge of antitrust, sources said. Muris served in the Reagan administration and advises Gov. Bush on economic issues. FTC Commissioner Thomas Leary has been suggested as FTC chairman.
Thomas Campbell of the Chicago office of Gardner, Carton & Douglas said since the Reagan era federal antitrust agencies have grown more powerful and are less vulnerable to changing political winds. Reagan presided in an era of deregulation, much of which was accomplished by underfunding regulatory agencies to curtail their enforcement actions, letting market competition decide the winners and losers.
"Both federal agencies are better-funded now, and their sources of funding are bulletproof from cutbacks," said Campbell, who pointed out that filing fees for mergers are increasing and criminal antitrust defendants are ponying up larger fines.
"The FTC is flush with money," he said. "And we've now had an awful lot of input into merger guidelines so that antitrust economic doctrine has a science of its own. I'm not sure a political thrust can change that anymore."
Campbell said that whoever is elected will have to explore the antitrust implications of e-commerce.
Most healthcare antitrust lawyers interviewed for this story, both Democrats and Republicans, said they believe Gore would stay the course adopted by the Clinton administration, while Bush would be less aggressive and more reliant on the markets.
"It may come down to an issue of resources," said William Kopit, a health antitrust lawyer with the Washington office of Epstein, Becker & Green. "How Democrats and Republicans take on the world is different. Who will commit significant resources to hire more people? Gore is more likely to expand the capacity of antitrust enforcement agencies. But even if you believe the market can handle things, it still requires a decent staff to curtail companies exerting market power. A certain amount of enforcement will always be required to allow markets to work and to keep them honest."
David Ettinger of the Detroit office of Honigman, Miller, Schwartz & Cohn said he sees little difference between a Bush and Gore administration on antitrust.
"Most of the innovative antitrust efforts of Clinton's administration have not been in healthcare," Ettinger said.
When government authorities have challenged hospital mergers, in most cases the courts have rejected their arguments to extend the law, Ettinger said.
"Given that history, it's not surprising that there hasn't been a lot of innovative efforts in that direction," he said.
Ettinger added that government antitrust actions against drug companies and HMOs have been more successful than those against hospitals and doctors.
Washington attorney Stuart Gerson, a former U.S. Justice Department official who now works with the firm Epstein, Becker & Green and has been mentioned for a post in a Bush administration, said he sees a pronounced difference between the two candidates' approach to antitrust regulation.
"There's little question that in a Gore administration, antitrust law would be used in a far more aggressive way to regulate business than in a Bush administration," Gerson said. "In a Bush administration, there would be a significantly greater impetus on letting the marketplace decide what works and what doesn't work."