Legal crusaders look to shield consumers
Biden’s antitrust team turns focus on corporate titans
President Joe Biden has assembled the most aggressive antitrust team in decades, stacking his administration with three legal crusaders as it prepares to take on corporate consolidation and market power with efforts that could include blocking mergers and breaking up big companies.
Biden’s decision this past week to name Jonathan Kanter to lead the Justice Department’s antitrust division is the latest sign of his willingness to clash with corporate America to promote more competition in the tech industry and across the economy. Kanter has spent years as a lawyer fighting behemoths such as Facebook and Google on behalf of rival companies.
If confirmed by the Senate, he will join Lina Khan, who helped reframe the academic debate over antitrust and now leads the Federal Trade Commission, and Tim Wu, a longtime proponent of breaking up Facebook and other large companies who is now the special assistant to the president for technology and competition policy.
The appointments show both the Democratic Party’s renewed antitrust activism and the Biden administration’s growing concern that the concentration of power in technology, as well as other industries such as pharmaceuticals, agriculture, health care and finance, has hurt consumers and workers and stunted economic growth.
They also underscore that Biden is willing to use the power of his office and not wait for the tougher grind of congressional action, an approach that is both faster and potentially riskier. This month, he issued an executive order stuffed with 72 initiatives meant to stoke competition in a variety of industries, increase scrutiny of mergers and restrict the widespread practice of forcing workers to sign noncompete agreements.
Outside groups and ideological allies of the administration warn that if Biden hopes to truly follow in the footsteps of his antitrust idols, Presidents Theodore Roosevelt and Franklin Roosevelt, he will need to push for sweeping legislation to grant new powers to federal regulators, particularly in the tech sector. The core federal antitrust laws, which were written more than a century ago, did not envision the kind of commerce that exists today, where big companies may offer customers low prices but at the expense of competition.
The administration has quietly supported legislation working its way through the House, but it has not yet sought to lead a congressional antitrust push in the way Biden has on infrastructure, child care and other components of his $4 trillion economic agenda.
That could prove problematic if judges continue to strike down actions by the Justice Department, the FTC or other agencies.
Last month, a federal judge threw out an FTC suit against Facebook, saying the agency had not made a persuasive argument that the company is a monopoly and directing it to better justify its claims. Khan faces her first big test when she refiles that lawsuit, and on Friday the agency asked the court for more time.
Biden’s antitrust picks have argued that Facebook, Google and Amazon have monopoly power and have used their dominant positions in social media, search and online retail to squash competitors, leaving consumers with fewer options, even if that doesn’t result in higher costs.
The companies and some economists disagree. Facebook points to Tiktok, Snap and Twitter as examples of competitors, and Amazon argues it has just 5 percent of all retail sales in the United States, despite an emarketer research study showing that 40 percent of all online retail sales occur on its platform.
Biden and his aides have cast his embrace of a “trustbuster” mentality as a crucial step toward rebalancing the economy not only to drive down prices but to fuel more competition and create high-paying jobs.