The (Sometimes) Invisible Handshake: How Quid Pro Quo Corruption Has Swallowed Anti-Trust Enforcement

Over the past three decades and beyond, American antitrust enforcement has deteriorated from a rigorous statutory arena into a marketplace where regulatory approval can be effectively purchased through campaign contributions, financial benefits, or legal settlements. The 2025 merger wave has helped expose this systemic pattern to the public. [1] When Union Pacific recently announced plans to acquire Norfolk Southern, a move that will create the first transcontinental railroad company, President Donald J. Trump openly endorsed this deal prior to firing one of the liberal Surface Transportation Board (STB) appointees without cause, breaking a 2-2 deadlock that would have potentially frozen the merger. [2] When Skydance Media sought clearance from the Federal Communications Commission (FCC) for its $8 billion acquisition of media giant Paramount in August of 2025, the company subsequently paid President Trump $16 million in a settlement. Three weeks later, the FCC approved the acquisition under the potential conditions requiring conservative editorial approval and control of news, evidenced by the hiring of conservative pundit Bari Weiss as editor-in-chief, and the cancellation of The Late Show with Stephen Colbert. [3] These are not isolated incidents of this most recent administration, but part of a decades-long pattern of continuous constitutional violations spanning administrations for at least the past thirty years.

The Pattern

The correlation between financial contributions and favorable regulatory treatment historically extends across party lines. During the 1990s, the telecommunications industry ended up rescuing President Bill Clinton’s reelection campaign through millions of dollars in campaign contributions, and the resulting Telecommunications Act of 1996 “tilted in favor of Hollywood, the networks, and newspapers” by eliminating ownership caps and consolidation, leading to a significant rise in telecom monopolies. [4] This bill passed due to “campaign contributions pouring in from all sides.” [5] Microsoft’s response to the Department of Justice (DOJ) prosecution reveals the same corrupt mechanism: after aggressive antitrust enforcement by the Clinton DOJ resulted in a breakup order, Microsoft pivoted its $4.66 million in campaign contributions heavily toward Republican candidates. [6] When President George W. Bush took office in 2001, having received Microsoft’s support, his DOJ immediately ended up abandoning the breakup order and eventually settled on toothless behavioral restrictions. [7] The central violation of antitrust statute by Microsoft related to its use of its natural and legal monopoly over operating systems (OS) as a mechanism for anti-competitive behavior in software and third-party hardware. [8] The most controversial use of this power was the automatic installation of Internet Explorer, Microsoft’s browser, onto all Windows machines, which stifled the growth of browsers like Netscape Navigator. [9] The Clinton DOJ’s prosecution of Microsoft resulted in a breakup order that would have created two distinct companies, one that created and maintained the Microsoft operating system Windows, and another independent company that created software for Windows like Internet Explorer, Excel, Teams, etc. [10] This would have fostered competition for software dominance between this new company and other entrants into the market as opposed to the status quo where Microsoft software had a distinct advantage over competitors due to Windows’s dominance as an OS. This would have created a market solution to the problem. Instead, after intense lobbying, George W. Bush’s administration dropped the breakup order following an appellate decision and instead settled on a behavioral restriction system specific to Microsoft and its unique issues. Microsoft now had to disclose to all competitors the Application Programming Interfaces (APIs) used by Internet Explorer, and it was prohibited from requiring OEMs like Dell or HP to carry Windows rather than an OS like Linux. [11] While these restrictions targeted the specific violations of antitrust law that Microsoft engaged in, the functional effects of these remedies turned out to be negligible. These behavioral restrictions were meant to save companies like Netscape and programming languages like Java, but by the time API sharing began, which itself was a flawed system, Netscape was a dead company and Java had been integrated and corrupted by the Microsoft ecosystem. [12] As the American Antitrust Institute detailed, these behavioral restrictions initiated by Bush and later institutionalized by Obama, “encourage circumvention of the remedy,” and end up leading to “suboptimal settlements that defeat the purpose of fully restoring competition.” [13]

The Boeing-McDonnell Douglas (MD) merger (1997) provides one of the clearest pre-2016 examples. [14] While McDonnell Douglas controlled just roughly 5% of the domestic airline market, the merger between Boeing and MD concentrated the market by “six times the threshold… which the Justice Department guidelines say are ‘presumed [to] … create or enhance market power.’” [15] It also gave Boeing control over the wildly successful defense programs, manufacturing the F-15 and F-18. [16] Despite the obvious competitive harm that would reduce the aerospace industry from a triopoly to a duopoly between Boeing and the European company Airbus, the FTC declined to challenge the deal under pressure from the Clinton Administration. [17] Retrospectively, while contested, scholars argue that the merger led to a severe decline in safety standards at the airline giant as Boeing’s engineers were subverted by MD “bean counters,” potentially contributing to the 737 MAX disasters of the late 2010s. [18] The pattern of subpar merger intervention intensified under George W. Bush: despite far larger and more frequent mega-mergers, averaging $78 billion during his administration, his regulatory agencies challenged just 2.2-2.9 percent of filings compared to Clinton's 1.28-1.86 percent in a far less saturated era. [19] President Barack Obama promised to "reinvigorate" merger review but challenged only 3 percent of mergers, just marginally better than Bush's record in the early 2000s. [20] Critically, Obama’s administration engineered the shift from structural remedies such as divestitures to complex behavioral remedies. [21] The advent and perpetuation of behavioral remedies in antitrust cases have deteriorated enforcement against potential or existing monopolies because, as opposed to a breakup order that creates a market solution and restores competition, behavioral remedies require complex and long-term monitoring of these companies. They also often come, like in the Microsoft case, after the harm has been done to market competition. The shift, importantly, also created ongoing relationships between agencies and regulated companies that facilitated regulatory capture.

Trump's first term brought an unprecedented explicitness in an administration’s intervention into antitrust cases. The President instructed Gary Cohn, his chief economic advisor, to pressure the DOJ to block the AT&T-Time Warner Cable (TWC) merger, because CNN, a subsidiary of TWC, frequently criticized him. [22] A subsequent congressional investigation established that presidential interference with the independence of the merger review constituted abuse warranting legislative oversight. [23] Trump's second term has now crossed from implicit influence to explicit quid pro quo: payments, firing of regulators without cause, and content-related conditions.

McDonnell v. United States’ Definition of Quid Pro Quo Corruption

The 2016 Supreme Court decision McDonnell v. The United States provides the most current operative standard for contemporary merger corruption. [24] Governor Robert McDonnell of Virginia was elected in 2009 while mired in financial debt, and while governor, accepted lavish gifts and financial help to launch and promote the nutraceutical supplement–later investigated by the Food and Drug Administration (FDA)–Antabloc. [25] Governor McDonnell was later arrested and convicted of 12 counts of corruption under the federal statute 18 U.S.C. § 201. [26] McDonnell appealed the ruling, and ultimately the Supreme Court’s decision clarified and narrowed the corruption doctrine by requiring proof of "official acts," rather than mere facetime, favors, or, in this case, unofficial events. [27] The decision clarified that formal governmental decisions on pending matters satisfy the currency standard in quid pro quo considerations. [28] Merger approvals unquestionably qualify: they authorize multi-billion-dollar transactions, fundamentally restructure industries, and are often subject to quasi-judicial proceedings like STB approval. [29]

All three elements of quid pro quo are present in 2025 cases. First, merger approvals constitute "official acts" under McDonnell's framework, with formal agency decisions and explicit legal consequences. [30] Second, the "things of value" being traded for an “official act” are explicit and substantial: Paramount's $16 million settlement payment to Trump, and T-Mobile's $195,000 in hotel stays at Trump properties. [31] These are quantifiable and documented monetary transfers, not ambiguous "access” to public officials.

Third, and most crucially, the temporal and contextual connection establishes the link between the act and the thing of value. [32] When a $16 million settlement occurs in July of 2025, and the FCC subsequently approves an $8 billion merger just three weeks later, coupled with approval explicitly conditioned on content and managerial changes favorable to the president and his party, the timing, combined with the nature of conditions, creates the evidentiary pattern McDonnell recognizes as probative of corrupt intent. [33]

Legal commentary has largely avoided applying the McDonnell standard to merger approvals, treating them as regulatory policy rather than corruption sites; however, this represents a significant oversight. [34] If merger approvals are official acts, which they are, and substantial payments precede them, and timing and conditions suggest quid pro quo, then merger corruption initially satisfies McDonnell's test. [35]

The Intersection of Campaign Finance and Citizens United

Citizens United v. FEC (2010) was partly justified on transparency grounds, as Justice Anthony Kennedy emphasized that disclosure would allow the public to evaluate whether officials were "in the pocket" of corporate interests. [36] Yet the post-Citizens United landscape has created an evidently perverse system where companies can spend millions on campaign contributions to influence regulatory decisions, or they can pay the president directly through settlements, hotel stays, and transition donations to receive explicit approval. [37] The latter strategy is more efficient and more corrupt.

The railroad industry contributed $3.6 million to federal candidates in 2024. [38] T-Mobile maintained $9 million in annual lobbying expenditures. [39] When companies subject to regulatory approval are both major political contributors and subject to merger approvals, contribution patterns and presidential interests collide, and the transparency rationale underlying Citizens United collapses, especially with the existence of non-transparent political action committees (PACs). [40] The public cannot evaluate whether officials are "in the pocket" of corporate interests, like Justice Kennedy said, when the most valuable exchanges, multi-billion-dollar regulatory forbearance, occur through administrative processes outside campaign finance disclosure.

This creates a constitutional problem: where the most significant governmental benefits can be purchased under the radar of American campaign finance law's already weak disclosure requirements.

Due Process and Impartial Adjudication

The Supreme Court has long held that due process constraints prohibit decision-makers from adjudicating matters when they have a financial interest or when circumstances create a risk of bias. In Tumey v. Ohio (1927), the Court held that an official receiving compensation from fines he imposed violated due process because direct financial interest created an unconstitutional conflict. [41] In Caperton v. A.T. Massey Coal Co. (2009), the Court extended this principle: a West Virginia justice who refused to recuse from a case involving a company whose CEO spent $3 million supporting his election violated due process because this created "serious, objective risk of actual bias." [42]

Applied to merger review, these principles reveal compelling constitutional problems. When Trump personally profits from hotel stays while his appointees review mergers involving companies that make those payments, this creates the direct financial interests for regulators that Tumey prohibits. When Trump receives $16 million from Paramount, and his FCC appointees approve its merger three weeks later, this creates the "serious risk of actual bias" Caperton condemns.

The STB merger review presents an even clearer violation of these due process considerations. When Trump fired Commissioner Robert Primus on August 27, 2025, to change the board's composition before voting on the Union Pacific-Norfolk Southern merger, this likely violated the due process rights of parties who submitted evidence based on the original board composition. [43] Parties opposing the merger, like competitors, shippers, labor unions, and consumers, had a right to impartial adjudication. [44] The strategic removal of an independent commissioner to ensure approval violates that fundamental right.

Equally crucial to the violation of due process that occurs when an independent commissioner is fired without cause, as is the case of Robert Primus, is the violation of Humphrey’s Executor, a landmark 1935 Supreme Court precedent. [45] While not discussed in depth in this article, as the standard is currently up for review by the Roberts Court at the time of writing, it should be noted that Humphrey’s Executor is presently the defining standard for the removal of officials of independent agencies. [46] It holds that an official of a statutorily established independent agency, for which the STB qualifies, can only be removed due to "inefficiency, neglect of duty, or malfeasance in office,” not a stated policy position. [47] While Humphrey’s Executor v. US may soon be erased from constitutional interpretation by the Roberts Court, it is currently a central puzzle piece to the corruption of the Union Pacific - Norfolk Southern merger, as Commissioner Primus was fired without meeting the qualifying standard of Humphrey’s Executor.

Convergence of these Factors into Constitutional Crisis

Examined separately, the violation of these frameworks raises serious concerns. Together, they create a constitutional crisis that exceeds the sum of its parts. The current regime represents a systematic breakdown of the separation of powers and the rule of law, both of which are meant to constrain executive authority.

This convergence operates through various interconnected mechanisms. Systemic campaign finance weaknesses mean that companies pursue approval through both official and unofficial channels simultaneously. They file applications while providing financial benefits to presidents. Those formal procedures thus become façades. The McDonnell standard's focus on "official acts" creates perverse incentives and a handbook for cover-ups. Companies end up using timing and existing financial relationships to avoid written agreements. This allows them to maintain plausible deniability while achieving their desired quid pro quo effects.

The erosion of due process means that even companies attempting to challenge mergers through official proceedings cannot rely on impartial adjudication. When presidents fire commissioners who would vote against mergers, or when appointees approve deals involving companies providing them financial benefits, the formal legal process becomes window dressing. 

The 2025 merger wave demonstrates that all three categories of violations operated simultaneously. The Union Pacific and Norfolk Southern transaction involves campaign contributions that create incentives for political endorsement and commissioner firing, establishing both quid pro quo dynamics and due process violations. At the same time, the lack of transparency prevents meaningful public evaluation. The Paramount and Skydance deal combines direct payments, politically motivated approval conditions, and campaign-finance relationships, all within three weeks.

This convergence reveals that merger corruption is not isolated bad actors but systemic constitutional failure. The Framers designed the separation of powers, independent agencies, and due process protections to prevent political bargaining over governmental authority. When presidents effectively sell regulatory approval, explicitly through direct payments or implicitly through contribution-approval correlations, these safeguards have failed.

The implications extend beyond merger policy. If multi-billion-dollar regulatory approval can be influenced through campaign contributions and personal financial relationships, then every regulatory domain, environmental permits, financial institution charters, pharmaceutical approvals, and defense contracts become vulnerable to identical corruption. Legal scholarship has failed to recognize this convergence because it analyzes corruption law, campaign finance, and administrative due process in isolation. The most significant contemporary governance corruption occurs at their intersection, yet that intersection remains largely unexamined.

Edited by Andrew Chung

[1] Wyatt Grantham-Philips, "FCC approves Paramount-Skydance merger amid Trump settlement controversy," AP News, July 24, 2025, https://apnews.com/article/paramount-skydance-media-cbs-trump-merger-a030c4f2c1903ed0e7f927782a64fcc0; Christal Hayes, "Trump settlement with Paramount raises questions," BBC News, July 2025, https://www.bbc.com/news/articles/c5ypylq0vnko.

[2] "Updates: Primus Lawsuit," Democracy Forward, https://democracyforward.org/updates/primus-lawsuit/; Josh Funk, "Trump fires Democratic Surface Transportation Board member before huge rail merger decision," PBS NewsHour, August 27, 2025, https://www.pbs.org/newshour/politics/trump-fires-democratic-surface-transportation-board-member-before-huge-rail-merger-decis; "Fired surface transportation board member sues Trump over his dismissal ahead of rail merger review," U.S. News & World Report, October 1, 2025, https://www.usnews.com/news/business/articles/2025-10-01/fired-surface-transportation-board-member-sues-trump-over-his-dismissal-ahead-of-rail-merger-review.

[3] "FCC approves Paramount-Skydance merger," AP News, July 24, 2025; "FCC approves Skydance merger for Paramount," New York Times, July 24, 2025, https://www.nytimes.com/2025/07/24/business/media/fcc-skydance-merger-paramount.html.

[4] Thomas Ferguson, "Bills Big Backers," Mother Jones, November 1996, https://www.motherjones.com/politics/1996/11/bills-big-backers/.

[5] Ibid.

[6] Stephen Labaton, "Microsoft Case Back in Play and the Lobbying Heats Up," New York Times, June 30, 2001, https://www.nytimes.com/2001/06/30/business/microsoft-case-back-in-play-and-the-lobbying-heats-up.html.

[7] "Settlement Agreement," U.S. Department of Justice, September 7, 2001, https://www.justice.gov/archive/atr/public/press_releases/2001/9463.htm.

[8] “Microsoft Antitrust Case,” Corporate Finance Institute, 2022, https://corporatefinanceinstitute.com/resources/management/microsoft-antitrust-case/.

[9] Ibid.

[10] Ibid.

[11] “Department of Justice and Microsoft Corporation Reach Effective Settlement on Antitrust Lawsuit,” U.S. Department of Justice, November 2, 2001, https://www.justice.gov/archive/atr/public/press_releases/2001/9463.htm.

[12] MacManus, Richard. “1999: Netscape’s Fall and the Rise of the Mozilla Browser,” Cybercultural, October 13, 2021, https://cybercultural.com/p/1999-the-fall-of-netscape-and-the-rise-of-mozilla/.

[13] “Public Comments of the American Antitrust Institute Prepared for the Antitrust Division Roundtable Examining Antitrust Consent Decrees,” American Antitrust Institute, April 26, 2018. https://www.justice.gov/atr/page/file/1057126/dl.

[14] Ralph Nader, "Boeing-McDonnell Douglas Merger," January 2, 1997, https://nader.org/1997/01/02/boeing-mcdonnell-douglas-merger/.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Nelson, Eshe, “The 1997 Merger That Paved the Way for the Boeing 737 Max Crisis,” Quartz, December 30, 2019, https://qz.com/1776080/how-the-mcdonnell-douglas-boeing-merger-led-to-the-737-max-crisis.

[19] "Merger Enforcement and Economic Welfare" (unpublished working paper, 2010), Cato Institute; "The Decline of Antitrust Enforcement" (working paper), Social Science Research Network; "Mergers, Concentration, and the Erosion of Democracy," Monthly Review.

[20] Shughart, William F., II, and Diana W. Thomas, "Antitrust Enforcement in the Obama Administration's First Term: A Regulatory Approach." Cato Institute Policy Analysis No. 739, October 22, 2013.

[21] Brown, Krista, et al., "The Courage to Learn: A Retrospective on Antitrust and Competition Policy During the Obama Administration and Framework for a New, Structuralist Approach," American Economic Liberties Project, January 2021, https://www.economicliberties.us/wp-content/uploads/2021/01/Courage-to-Learn-Final.pdf.

[22] U.S. House Committee on the Judiciary, Investigation into Presidential Interference with Merger Review (unpublished report, 2018).

[23] Ibid.

[24] McDonnell v. United States, 579 U.S. 15-474 (2016).

[25] Ibid.

[26] “18 U.S. Code § 201 – Bribery of Public Officials and Witnesses,” Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/201.

[27] McDonnell v. United States, 579 U.S. 15-474 (2016).

[28] Ibid.

[29] "FCC approves Paramount-Skydance merger," AP News, July 24, 2025; Josh Funk, "Trump fires STB member ahead of merger review," AP News, August 27, 2025, https://apnews.com/article/stb-union-pacific-norfolk-southern-trump-primus-052749d72b2c4186fbcbc87c4c47886a.

[30] McDonnell v. United States, 579 U.S. 15-474 (2016).

[31] Andy Sullivan, "T-Mobile executives stayed at Trump hotel during merger review," Reuters, March 4, 2025, https://www.reuters.com/business/media-telecom/trumps-business-ventures-spark-new-conflict-of-interest-concerns-2025-03-04; John Hendel, "T-Mobile CEO on Trump hotel stays," Politico, September 2, 2020, https://www.politico.com/news/2020/09/02/t-mobile-ceo-trump-democrats-407875.

[32] McDonnell v. United States, 579 U.S. 15-474 (2016).

[33] Ibid.

[34] "Stretching the Bribery Statute to Paramount Deal Will Backfire," Bloomberg Law, https://news.bloomberglaw.com/us-law-week/stretching-the-bribery-statute-to-paramount-deal-will-backfire.

[35] Ibid.

[36] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[37] Saurav Ghosh, "New CLC Report: Unchecked Coordination Between Candidates and Outside Groups Undermines," Campaign Legal Center, November 30, 2023, https://campaignlegal.org/update/new-clc-report-unchecked-coordination-between-candidates-and-outside-groups-undermines; Ian Vandewalker, "Unprecedented Big Money Surge to Super PAC Tied to Trump," Brennan Center for Justice, August 5, 2025, https://www.brennancenter.org/our-work/analysis-opinion/unprecedented-big-money-surge-super-pac-tied-trump.

[38] FEC Filings and OpenSecrets, Industry Contribution Data.

[39] David Goldman, "CVS-Aetna merger approval," CNN, October 10, 2018, https://www.cnn.com/2018/10/10/business/cvs-aetna.

[40] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

[41] Tumey v. Ohio, 273 U.S. 510 (1927); Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

[42] Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

[43] "Trump fires STB member," AP News, August 27, 2025; “Trump fires Democratic Surface Transportation Board member,” PBS NewsHour, August 27, 2025.

[44] Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

[45] Humphrey's Executor v. United States, 295 U.S. 602 (1935).

[46] Cowley, Stacy, et al., “Supreme Court Considers Trump’s Power to Fire Independent Officials: Live Updates,” New York Times, December 8, 2025, https://www.nytimes.com/live/2025/12/08/us/trump-supreme-court-presidential-power.

[47] Humphrey's Executor v. United States, 295 U.S. 602 (1935).