5 Questions the Senate Should Ask the Nominee for U.S. Attorney General

The dome of the U.S. Capitol is viewed through a reflection of the American flag on Capitol Hill in Washington, January 1, 2019.

Tomorrow, the Senate begins to formally consider the nomination of William Barr for the position of U.S. attorney general. As the chief legal officer and head of the Department of Justice (DOJ), Barr would be responsible for enforcing federal laws and representing the federal government in legal matters. Some of the issues that the attorney general handles are criminal justice, civil rights, immigration, and terrorism. The role is also charged with overseeing several offices that have sizable influence over the national economy and the rules that govern it.

All too often, the wealthy and well-connected benefit from a skewed economic structure—exacerbated by inconsistent and nonexistent enforcement of the rules and laws of the marketplace. It would therefore be a missed opportunity for the Senate not to ask Barr where he stands on using his authority to take positions, allocate resources, and oversee DOJ investigations in ways that could help unrig the economy and protect workers, consumers, and taxpayers.

This column highlights five questions related to the economy that the Senate should ask Barr during his confirmation process.

Will the attorney general ensure competition through vigorous antitrust enforcement?

Along with the Federal Trade Commission, the DOJ Antitrust Division has the authority to protect competition across most sectors of the U.S. economy. The annual number of corporate mergers increased by more than fivefold from 1985 to 2017, suggesting a permissive antitrust environment. Moreover, a small number of firms have come to dominate a multitude of individual industries, including health care and agriculture, leading to price increases and reduced wages.

Mergers should be of importance with the nomination of Barr, who previously served on the board of Time Warner. He had direct involvement with the company’s merger with AT&T, including calling the assistant attorney general’s opposition “inexplicable.” In the past, Barr had significant roles in mergers involving Bell Atlantic, GTE, MCI, and Alltel. This is notable, as DOJ typically reviews telecommunications and broadband mergers.

The harms to workers, consumers, innovation, and even democracy that result from consolidation could have lasting effects on the economy and society, and an empowered Antitrust Division is an essential component of competitive and functioning markets. Barr should make it known if he will provide resources and support for antitrust enforcement and if he will recuse himself in cases where there are potential conflicts of interest.

Will the attorney general promote Wall Street accountability?

The agencies responsible for regulating financial institutions and markets take the lead on promoting the safety and stability of the financial system. The DOJ, however, has authority to prosecute firms and individuals for financial crimes such as fraud and money laundering. Unchecked financial sector misconduct can erode confidence in the financial system and destabilize institutions and markets. When Wall Street firms and employees are not held accountable, the culture in finance further decays—leading to more instances in which workers, families, and retirees are ripped off. Skirting the law and taking advantage of customers becomes business as usual.

A decade ago, financial institutions were bailed out by taxpayers, while the economy suffered the consequences of Wall Street’s recklessness. Some countries, including Iceland, prosecuted executives at their largest banks for fraud and other charges. In the United States, executives were not held accountable for their actions. Not a single senior executive at a Wall Street financial institution was prosecuted, despite evidence of rampant misconduct and abuses at these firms. In the years since the crisis, banks have continued to rack up hundreds of billions of dollars in fines for a never-ending list of scandals—all while their profits have reached record levels. From Wells Fargo opening fake accounts to allegations of money laundering and benchmark rigging at other banks, misconduct in the financial sector is ever-present and accountability is scarce.

In addition, the Housing and Civil Enforcement Section of the DOJ upholds decades-old laws that protect against discrimination in housing and credit—two important vehicles that encourage financial stability and wealth building. A lack of accountability and justice harms the stability of the financial system; the economy; and workers, families, and retirees. It is important to know if Barr will hold accountable individuals and firms whose reckless behavior hurts everyday Americans.

Will the attorney general crack down on tax dodging?

Congressional investigations of banks and companies, as well as leaked financial documents—for instance, the Panama Papers and Paradise Papers—have shown the extent to which the wealthiest citizens and corporations around the world, including the United States, use sophisticated financial strategies to evade taxes through tax havens. Experts estimate the federal government misses out on up to $180 billion annually from tax havens. The failure of the United States to require businesses, foundations, and trusts to disclose their owners has made the country an attractive place to store offshore wealth. Empowered investigators within the DOJ Tax Division can ensure that the department upholds its mission to enforce tax laws to ensure that all Americans pay their fair share and the federal government is not deprived of revenue. The attorney general must commit to aggressive enforcement of tax laws against those who pursue evasive strategies.

Will the attorney general defend pro-worker policies?

During the Obama administration, the Department of Labor proposed raising the overtime salary threshold so that workers with annual earnings of less than $47,476 would be automatically eligible for time-and-a-half pay for all hours worked in a week in excess of 40 hours. A U.S. District Court judge issued an injunction that prevented implementation of the rule in late 2016, leading to an appeal from the Obama administration DOJ. Rather than fight on behalf of workers, the Trump administration has abandoned the rule, claiming it will issue a new one. Despite a timetable indicating a new rule would be issued in October 2018, however, the Department of Labor has yet to release its proposal. Each day that passes, workers lose out on an addition $3.3 million in overtime wages; $1.4 billion has been lost since the Trump administration abandoned the rule.

There have also been instances where the Trump administration has sided against workers through amicus briefs, reversing the previous administration’s position. The current DOJ has defended an employer who fired one of its employees on the basis of sexual orientation, contended that corporations can prevent workers from getting their day in court when their rights are violated by forcing them to sign mandatory arbitration agreements, and argued for changes that threaten the ability of public sector workers to come together in strong unions. Instead of restricting the legal rights of workers, the attorney general should be protecting the interests of labor.

Will the attorney general prosecute egregious violations of health and safety?

In recent years, there have been several instances across the economy of gross negligence or willful misconduct by companies to shirk laws and rules meant to ensure the health and safety of people and to protect the environment. The 2010 Deepwater Horizon drilling rig explosion led to the death of 11 crew members and the largest marine oil spill in U.S. history. BP, which leased the rig, ultimately entered a consent decree to settle civil claims and paid more than $20 billion in penalties and damages.

Volkswagen cheated on emissions tests to gain Environmental Protection Agency certification for several of its models, with almost half a million owned by the driving public. The automaker settled the allegations for nearly $15 billion. A 2016 explosion at a fertilizer facility in Texas killed 15 people, injured more than 250 people, and caused $100 million in damages to nearby buildings. An investigation found that the company’s negligence and insufficient government regulation allowed a scenario that led to the explosion. When these incidents occur, ensuring the government brings civil or criminal procedure, where appropriate, sends an important signal that these violations will not go unpunished. A worthy attorney general will act to protect consumers from harm and workers from negligence.

Conclusion

The Department of Justice is not an agency focused on the economy. It is, however, an enforcement agency, and the importance of its role in ensuring accountability should not be understated. Any nominee for U.S. attorney general must be fully committed to equipping the entire department to fight for a fair economy for all Americans. The confirmation hearings will be important indicators of whether William Barr is up to the task.

Andrew Schwartz is a policy analyst of Economic Policy at the Center for American Progress.