Iowa has always been a land of firsts: the first digital computer, the first modern college basketball game, the first gas-powered tractor. And, although it's not quite as famous, we also created the nation's first antitrust law. The Iowa Legislature passed an "Act for the Punishment of Pools, Trusts and Conspiracies" in 1888, two years before Congress got around to passing the Sherman Antitrust Act.
Iowa's trailblazing law came from farmers and laborers who were watching railroads and manufacturing trusts consolidate control over the markets they depended on. Antimonopoly in America began as a state power, created by state lawmakers, to be used on behalf of state citizens.
That is the longstanding tradition Iowa Attorney General Brenna Bird just asked the U.S. Supreme Court to dismantle.
Iowa filed an unusual lawsuit on Aug. 25 asking the court to declare that 12 other states — Arizona, California, Colorado, Connecticut, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Washington — cannot sue to block the proposed $110 billion merger of Paramount Skydance and Warner Bros. Discovery. Those states allege that letting Paramount gobble up Warner Bros. would consolidate too much power over film distribution and cable television, leading to higher prices, less production, and lower quality films and shows. The judge already agreed that it's a credible case and set trial for March.
Bird disagrees: in a filing, her office asked the federal Supreme Court to declare that these state enforcers were not entitled to make their own law enforcement decisions. Because the federal government, along with regulators in places like "China, Saudi Arabia, South Korea, [and] Kuwait" have cleared the deal, Bird thinks states should have no more say in the matter.
Set aside for a moment that the Department of Justice clearance faced allegations of corruption, that Saudi Arabia is directly funding the deal, or that another funder reportedly has connections to China. Bird apparently wants states to bend the knee whenever the federal government (or, even foreign governments) decline to act.
Is this lawsuit really a good use of our taxpayer dollars? Suppose the Supreme Court agrees. The next time Iowa wants to try to block a harmful mega-merger, any one of 49 other states could haul the state of Iowa into court and demand an injunction to stop it — with Supreme Court precedent, thanks to Brenna Bird, on their side.
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Amid an ongoing wave of corporate consolidation that's already making us pay too much for groceries and healthcare while getting lower wages and job satisfaction, and with Iowa's farmers and manufacturers facing active threats from a pending railroad mega-merger, Bird's lawsuit seems awfully shortsighted.
And that all assumes the Paramount/Warner Bros. merger would actually be good for Iowans, as Bird claims. But we've seen this experiment before. When Disney bought 21st Century Fox — another massive media deal cleared by the federal government — critics warned it would be a disaster. Those warnings were right: The combined company made far fewer films, and thousands of jobs disappeared.
Bird's track record already suggests she lacks sound antitrust judgment. This past spring a bipartisan group of states took the LiveNation-Ticketmaster monopoly to trial. But at the 11th hour, the federal government backed out, and Iowa exited with it. Why drop such a strong case? It seems President Donald Trump met with the Live Nation CEO and then ordered his DOJ to end the case. They, along with Iowa's attorney general, took a weak-kneed settlement. Thirty-three other states went to trial — and won.
Of course, the Iowa Attorney General's Office was free to make that decision, even if it was a mistake. That's the beauty of our federalist system: states, including Iowa, should remain free to make their own judgment calls based on their own review of the evidence. Instead, Bird is devoting time and taxpayer money to try to strip states of their autonomy.
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Iowa created the country's first antitrust law because we didn't trust concentrated power to police itself, or the federal government to always do the right thing. The current attorney general has apparently abandoned this ideal. Let's hope the next Iowa attorney general respects Iowa's independence and restores its proud antimonopoly tradition.
Max M. Miller lives in Des Moines and used to enforce the state's antitrust laws with the Iowa attorney general. He now serves as senior counsel at the American Economic Liberties Project and co-hosts the podcast "The Fair Fight." John Newman is a graduate of Iowa State University and the University of Iowa College of Law, an antitrust law professor, and a former antitrust enforcer.
This article originally appeared on Des Moines Register: Brenna Bird asks court to bury antitrust law Iowa pioneered | Opinion