Since the 1980s, corporations have steadily consolidated more power, while the federal agencies responsible for enforcing our antitrust laws have largely abdicated their responsibility. Such concentrated corporate power isn’t just a threat to our economy, it’s a threat to democracy itself.
By nominating Lina Khan to the Federal Trade Commission (FTC) and appointing Tim Wu to the National Economic Council (NEC), President Joe Biden has signaled that he’s ready to hold corporations accountable. To complete his team, he needs to appoint a champion of today’s antimonopoly movement to lead the Antitrust Division of the Department of Justice (DOJ): Jonathan Kanter.
Antitrust enforcement is one of the best tools the federal government has to rein in corporate power and build a just, inclusive economy. The assistant attorney general for antitrust will help set the administration’s approach to combating the modern-day monopolies that write the rules of our economy. As a member of the House Judiciary Committee’s Subcommittee on Antitrust, I know that our antitrust laws are only as effective as our antitrust enforcers.
Over the past few decades, we’ve learned the importance of antitrust enforcement the hard way. The federal government has failed to stop big corporations from rigging markets to their own advantage. Workers, small businesses, and consumers have paid the price.
As a candidate, Barack Obama pledged to “reinvigorate antitrust enforcement.” Nevertheless, the Obama administration failed to prevent Big Tech companies like Amazon, Facebook, and Google from consolidating their monopoly status. As the American Economic Liberties Project has documented, the Obama administration had a historic opportunity to challenge corporate power. But too many of the Obama administration’s leaders were unwilling to break from the “hands-off” approach that began with the Reagan administration. As a result, between 2009 and 2019, antitrust enforcers did not block a single one of the more than 400 acquisitions by the five biggest online platforms.
Alarmingly, in some respects the Obama administration made antitrust enforcement harder. In 2010, both the FTC and DOJ Antitrust Division revised certain merger guidelines to be more permissive of corporate consolidation. As law professor Daniel Crane explained in the Stanford Law Review, these rules suggested that “greater levels of concentration resulting from [this sort of] merger [would] be necessary to trigger antitrust scrutiny than under the previous regime.”
In the same year, the Antitrust Division approved the merger of Live Nation and Ticketmaster, which dominated the ticketing and concert promotion markets, respectively. Although the merger plainly consolidated corporate power, the assistant attorney general for antitrust described the decision to approve it while requiring the two companies to divest some assets as “vigorous antitrust enforcement — only with a scalpel rather than a sledgehammer.”
Similarly, the Obama administration’s FTC failed to hold Google accountable for its anti-competitive behavior in 2013. After an extensive investigation led staffers to urge the agency to sue the search giant for violating antitrust law, the FTC declined.
And of course, the Obama administration failed to prevent Facebook from acquiring Instagram and Whatsapp — enabling Facebook to co-opt its most promising potential competitors.
So far, President Biden’s antitrust appointments have charted a new, more hopeful path forward. By nominating the brilliant anti-monopoly champion Lina Khan to serve on the FTC, President Biden has committed to renewing robust antitrust enforcement for the new economy. And by appointing Tim Wu to advise him on technology and competition policy, President Biden has shown that he knows it’s time for a new Progressive Era. With these selections, President Biden is demonstrating the courageous leadership we need in the fight for an economy that works for everyone.
To complete this transformative antitrust team, President Biden should appoint Jonathan Kanter to serve as assistant attorney general for the Antitrust Division. Since his first legal internship at the FTC, Kanter has devoted his career to confronting concentrated corporate power. As an attorney at the FTC’s Bureau of Competition, Kanter challenged the sort of big corporate mergers that have created this crisis of consolidation. Today, as the Department of Justice pursues the most important antitrust case in recent memory, United States v. Google, the Antitrust Division should be led by the person with the creativity and commitment to devise that case’s legal theory. In both the United States and Europe, antitrust enforcers consult Kanter when they need to win their toughest cases against modern monopolies. That’s why the top legal publications have repeatedly ranked him among our antitrust luminaries.
Perhaps most importantly, throughout his career, Kanter has shown that he has the political courage this moment demands. Years before our national reckoning with the power of the biggest tech platforms, Kanter warned against empowering Google to dominate the television industry. Testifying before the Senate in 2018, Kanter emphasized that “concentrated economic power could pose as great a threat to liberty as political power.” And in his own legal practice, he has represented the smaller businesses fighting uphill legal battles to foster greater competition. It’s about time for an antitrust enforcer who’s looking out for us.
The next assistant attorney general for the Antitrust Division must be someone who recognizes that the problem is unchecked corporate power, and the solution is to confront that power. Our history confirms that at the helm of the Antitrust Division, a true antimonopolist can deliver huge dividends for American workers and small businesses. If President Biden aspires to follow in the footsteps of President Franklin Delano Roosevelt, he must select an advocate who hasn’t been part of the problem — and has already been part of the solution. That advocate is Jonathan Kanter.
Mondaire Jones, a Democrat, represents New York’s 17th District.