North America Antitrust Digest | Special Edition: The Midterms and Competition Policy

A quick look at the top headlines in Antitrust and Competition

1. What a Democratic Congress Means for Antitrust Enforcement

2. Corporate Donations Under the Microscope: The Pay-to-Play Question

3. State AG Races to Watch: Next Tuesday's Competition Map

What a Democratic Congress Means for Antitrust Enforcement

With Election Day less than one week away and polls pointing toward Democrats picking up at least one chamber, antitrust practitioners and dealmakers are asking the same question: what changes on November 4th?

The short answer: while the enforcement posture of the DOJ and FTC is unlikely to change, the political and investigative environment in Congress is almost certain to ramp up under Democratic control.

Oversight, investigations, and subpoenas. Democrats have spent the past two years in the minority building a case that antitrust enforcement under the Trump administration has been corrupted by political favoritism. If they take the House, that case becomes a committee chairmanship. House Minority Leader Hakeem Jeffries (D-NY) has reportedly been coordinating across the caucus to establish centralized investigative infrastructure, with the intent of launching a rapid-fire oversight agenda from day one.[1]

Companies can expect subpoenas, compelled testimony from agency officials, and hearings into specific enforcement decisions, such as the Live Nation-Ticketmaster settlement. More broadly, Democrats are poised to question lobbyist access to DOJ and FTC decision-making and actions from companies perceived as seeking to gain favor with President Trump. Notably, Roger Alford — a Trump appointee who served as the Antitrust Division's second-ranking official before being fired for what DOJ described as "insubordination" — testified earlier this year that "lobbyists are pervasively involved at every level of the Department of Justice, trying to influence the outcomes not based on the merits, but based on relationships." Should Democrats take over committee chairmanships, they will have more investigative tools and resources, as well as agenda-setting powers, to pursue investigations into such activity.

At a recent FGS-hosted roundtable on antitrust enforcement, House Judiciary Committee Ranking Member Jamie Raskin (D-MD) offered the clearest window yet into how Democrats intend to wield that power to rebuild enforcement. First, he called for aggressive congressional oversight of DOJ and FTC enforcement decisions, which he said Republican lawmakers have abdicated entirely. Second, the introduction of his Antitrust Accountability and Transparency Act, which would modernize the Tunney Act by extending judicial review to FTC settlements, require disclosure of settlement negotiations, prior offers, side deals, and related communications, temporarily pause mergers while courts conduct meaningful review, and give state attorneys general a formal right to participate in federal settlement proceedings. Third, Raskin argued for expanded resources and authority for state attorneys general. Fourth, broader statutory reform to close loopholes, address misguided judicial conventions at the remedies stage, and take on sector-specific affordability challenges that Chicago School jurisprudence has left unaddressed for decades.

Democratic staffers at the same event underscored that enforcement priorities will be squarely focused on kitchen-table affordability: airline prices, grocery prices, healthcare costs, and algorithmic pricing. Staffers noted that compulsory tools — subpoenas and formal depositions — should be treated as a last resort, with the preferred approach being ongoing dialogue and informal interviews before any escalation. Companies receiving Hill inquiries were specifically advised to engage proactively and substantively. Boilerplate responses, staffers warned, raise the temperature and accelerate escalation toward formal investigations. The staffers also noted that engagement with executive branch agencies in the next Congress is expected to be significantly more adversarial than engagement with the private sector, based on how the first Trump administration handled congressional oversight requests.

Bottom line: The real shift from a Democratic majority is oversight, not legislation. For companies with pending antitrust matters, deals before DOJ or FTC, or any engagement with the administration on competition-related policy, a Democratic majority means congressional scrutiny that was previously unavailable becomes a live risk. The advice from Democratic staffers is straightforward: engage early, engage substantively, and do not treat congressional inquiry as a bureaucratic formality.

[1] https://thehill.com/homenews/house/6137292-jeffries-vows-trump-corruption-investigations/

Essential insights and analysis

Corporate Donations Under the Microscope

One antitrust storyline that connects directly to the election outcome is the growing focus on corporate donations to Trump-aligned entities, including the White House Ballroom project, Freedom 250, and the Kennedy Center, by companies with active antitrust matters before the administration.

At the FGS roundtable, Raskin gave this issue its sharpest articulation yet, framing it as what he called the "Trump transaction tax": the practice, he argued, of companies securing favorable antitrust outcomes through political donations and White House access rather than through the merits of their cases. He alleged that Big Tech companies collectively directed tens of millions of dollars toward Trump's personal and political projects, receiving in return tariff carve-outs, dropped investigations, and withdrawn charges. He further characterized the Skydance-Paramount and Paramount-Warner Bros. Discovery transactions as cases where merger clearance was conditioned on editorial and political concessions, arguing that antitrust machinery was being used to reward aligned media voices and penalize critical ones.

That framing is not purely rhetorical. In December 2025, Rep. Dave Min (D-CA) and Sen. Elizabeth Warren (D-MA) sent letters to seven companies — Amazon, Apple, Meta, Microsoft, Nvidia, Comcast, and Union Pacific Railroad — all with antitrust business pending before the Trump administration, questioning whether their White House Ballroom donations constituted an improper quid pro quo.[1] The letters explicitly raised federal bribery exposure, warning that donations made "with the intent to influence government decision-making could run afoul of federal bribery law." By July 2026, new disclosures revealed approximately $9 million in corporate donations to Freedom 250 alone.[2] The non-partisan Campaign Legal Center separately alleged that at least 35 lobbying organizations failed to report donations across the Ballroom, Freedom 250, and Kennedy Center funds as required under the Lobbying Disclosure Act.

JPMorgan Chase CEO Jamie Dimon has been the most prominent executive to publicly articulate the risk, acknowledging that JPMorgan declined to donate because of "the risks we bear by doing anything that looks like buying favors." Democratic staffers at the FGS roundtable confirmed that subpoenas of companies perceived as having traded donations for regulatory outcomes are among the specific tools under active consideration.

[1] https://min.house.gov/media/press-releases/min-warren-lawmakers-question-giant-corporations-trump-ballroom-donations

[2] https://www.politico.com/news/2026/07/31/disclosures-corporate-donations-trump-freedom250-01020551

Developments and deals to watch

State AG Races to Watch: Next Tuesday's Competition Map

The antitrust enforcement map has been moving toward state capitals for the better part of two years as federal regulators have largely sidestepped major enforcement actions. In addition to Congress, Tuesday's election will determine who controls some of the most consequential state attorneys general seats across the country. Thirty states, D.C., Guam, and the Northern Mariana Islands are holding AG elections this cycle. At a minimum, 11 new attorneys general will take office in January.

Here are the most important state attorney general races to watch:

Michigan (Toss-up — Open Seat). Outgoing AG Dana Nessel (D) built one of the most active antitrust programs in the country during her tenure, filing against fossil fuel companies and joining multistate coalitions on tech and healthcare consolidation. The open-seat contest between Democrat Eli Savit and Republican Doug Lloyd is rated as a toss-up. A Savit win likely means continuity with Nessel's aggressive posture. A Lloyd win would represent a shift toward more traditional conservative enforcement.

Minnesota (Toss-up). Incumbent AG Keith Ellison (D) faces Republican Ron Schutz in a race rated a toss-up. Ellison's office has been active on consumer protection, tech enforcement, and healthcare consolidation. Minnesota has historically been a first-mover on novel antitrust theories and an active participant in multistate coalitions.

Arizona (Lean D). AG Kris Mayes (D), who won her 2022 race by fewer than 300 votes, faces Republican Warren Petersen. Mayes was among the Democratic AGs who refused to join the Live Nation settlement and pressed forward with the state coalition lawsuit.

Georgia (Lean R — Open Seat). With incumbent AG Chris Carr retiring to run for governor, the open contest between Republican Brian Strickland and Democrat Tanya Miller in a R+1 state is competitive enough to watch. A Miller win would add a new Democratic AG in a Sun Belt state where multistate coalitions have historically lacked southern representation.

Colorado (Solid D — Open Seat). Term-limited AG Phil Weiser, who chaired the Democratic AG coalition's antitrust working group and led the intervention in the HP-Juniper settlement proceedings, is being succeeded by Democrat Jena Griswold, who is expected to win comfortably over Republican Michael Allen. Whether Griswold maintains Colorado's role as an institutional hub for state antitrust enforcement innovation will be worth watching.

Ohio (Open Seat — Likely R). With Republican incumbent Dave Yost term-limited, Republican Keith Faber and Democrat John Kulewicz are contesting an open seat in a state with significant industrial and manufacturing antitrust exposure. Yost was an independent enforcement voice — filing on cannabis market coordination and co-signing the DOJ healthcare case — and Ohio's future posture on such matters is an open question.

Bottom line: The November 3rd state attorney general results will reshape the composition of both Democratic and Republican multistate coalitions heading into the back half of the Trump administration. State attorneys general are increasingly complementary enforcement layers filling gaps left by federal regulators and Congress. Democratic gains will strengthen the coalition designed to serve as the backstop for federal enforcement gaps. Companies planning significant transactions or operating in sectors drawing state-level scrutiny will need to understand state-specific antitrust risks before signing a deal.

*Race ratings based on https://www.multistate.us/elections/ag (10/28/26)