Biden signals tough stance on tech with antitrust picks

President Biden’s nomination of Jonathan Kanter to head the Department of Justice’s (DOJ) antitrust division completes an unexpected sweep of picks backed by the progressive movement to break up the country’s biggest tech companies.

Along with Kanter, the administration successfully installed Lina Khan as chairwoman of the Federal Trade Commission (FTC) and appointed Tim Wu to a White House advisory role.

The three picks are a sign of Biden’s intent to revitalize antitrust law and challenge monopolies.

“This is a really important step to show just how serious President Biden is in having a strong antitrust enforcer and good competition policy,” said Morgan Harper, director of policy and advocacy at the American Economic Liberties Project, one of the key groups in the nascent anti-monopoly movement.

“To see people who have a track record of really understanding the issues but then also a willingness to stand up for the policies to correct a lot of the problems that are happening in the economy … that’s really exciting,” she added.

Kanter has been a longtime critic of big tech companies in his time as a corporate antitrust lawyer representing smaller firms in the space.

His work for companies accusing Google of anticompetitive behavior, including Yelp and Microsoft, could be especially important given that the DOJ has an ongoing antitrust case against the search giant.

Lawsuits will be a key tool for both Kanter and Khan to translate their views on antitrust into practice.

Khan’s FTC is running up against a deadline at the end of the month to file an amended complaint in its case against Facebook after the initial case was dismissed in June. The antitrust lawsuit targets Facebook’s previously approved acquisitions of WhatsApp and Instagram.

Beyond lawsuits, regulatory agencies can issue new rules, produce reports and hold public hearings to bring attention to concentration in different sectors of the economy.

Khan has taken several of those steps already since being appointed FTC chairwoman, holding two public meetings this month.

The agency voted unanimously this week to enforce laws around the right to repair, a key issue for consumer advocacy groups.

“The FTC has a range of tools it can use to root out unlawful repair restrictions, and today’s policy statement would commit us to move forward on this issue with new vigor,” Khan said at the meeting.

The policy statement was one of the less contentious votes facing the FTC. The agency issued a lengthy report on the subject in May approved by all four commissioners at the agency at the time.

But other measures may prove more difficult to pass depending on when Biden names a replacement for Commissioner Rohit Chopra, who was nominated by the president to lead the Consumer Financial Protection Bureau.

During Wednesday’s meeting, for example, the commission voted 3-2 along party lines to rescind a 1995 policy statement that had ended the practice of requiring companies that had violated the law in previous mergers to obtain prior approval by the FTC for any future transaction.

While Khan argued the 1995 policy had added an “additional burden” that “drains the already strapped resources” at the agency, the Republican commissioners argued it would lead to uncertainty.

The two Republicans similarly opposed a vote earlier this month, at the first meeting under Khan’s leadership, to repeal a 2015 policy statement that blocked the agency from challenging “unfair methods of competition” that don’t violate existing antitrust laws.

The new agency heads appear to have the full support of the White House behind them.

Biden released a sweeping executive order earlier this month aimed at cracking down on anti-competitive practices across industries. Notably, the order recognizes that the law allows the DOJ and FTC to “challenge prior bad mergers,” according to a White House fact sheet.

“President Biden is very interested, personally, in these competition issues, and it is very much synced up with the FTC,” said Jason Furman, a professor at the Harvard Kennedy School and former economic adviser to then-President Obama.

The FTC has already taken some action in line with recommendations laid out in Biden’s order, including the right-to-repair vote.

Kanter will have to make it through the nomination process before actualizing Biden’s order at the DOJ.

His nomination drew rave reviews from key Senate Democrats, including Amy Klobuchar (Minn.), chairwoman of the Senate Judiciary subcommittee on antitrust, and Elizabeth Warren (Mass.).

While Kanter could be advanced with just Democratic votes, Sen. Mike Lee (R-Utah) has also expressed some openness to the nominee.

“I am encouraged by Mr. Kanter’s track record of taking on Big Tech, and I look forward to learning more about his qualifications through the confirmation process,” the ranking member of the antitrust subcommittee said in a statement to The Hill.

Congress may also be crucial to making sure the vision of antitrust shared by Biden’s picks can be realized.

“The big thing, though, is both Lina Khan and Jonathan Kanter are in the legal system, and on most issues ultimately they won’t be deciding; judges will be deciding,” Furman said. “So they can’t just take their own ideas and make them happen.”

The House Judiciary Committee last month advanced a raft of bills aimed at overhauling antitrust laws to make it easier for regulators to go after the biggest tech companies.

However, the committee votes highlighted divisions within the Democratic Party that could complicate their chances on the House floor, especially with moderate leadership already expressing concern about some of the bills.