Aurelien Portuese is director of antitrust and innovation policy at the Information Technology and Innovation Foundation (ITIF). He focuses his research on the interactions between competition policy and innovation objectives. He is also an adjunct professor of law at the Global Antitrust Institute of George Mason University, and at the Catholic University of Paris.
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President Biden wants to reform American capitalism. In doing so, he may change the way firms compete, operate, and thrive. Biden’s antitrust policies will shape American capitalism for decades to come. And yet, Biden antitrust already displays characteristics which depart from traditional antitrust: Biden antitrust inevitably is unorthodox.
Unlike his predecessors, President Biden has decided he wants a senior antitrust official walking the halls of the White House as a special assistant for technology and competition policy. President Biden has also decided to nominate a junior antitrust scholar with radical views on technology and competition as Commissioner of the Federal Trade Commission (FTC). Both nominations depict a radical change of tone, not only from traditional antitrust policy, but also from his track record during the Obama presidency.
While the nomination of Lina Khan as FTC Commissioner represents an unfortunate weaponization of antitrust laws against large and successful companies, the nomination of Tim Wu as White House advisor proves to be unnecessary.
During her April 21, 2021 confirmation hearing before the Senate Committee on Commerce, Science, and Transportation, the young and brilliant policy advocate and scholar Lina Khan went through a rather banal exercise thanks to bipartisan support for her nomination. This bipartisan support demonstrates the bipartisan consensus on antitrust: A return to old, populist enforcement of antitrust appears inevitable for both sides. Not only is the current techlash broadly supported domestically, but other foreign initiatives echo such techlash.
This techlash builds up on monopoly myths and, more profoundly, on the historical anti-bigness sentiments of Americans. The collective imagery of fighting big business and corporate consolidation in the name of protecting small businesses and independent proprietors stems from the late 19th century’s period of the Gilded Age. Industrial innovation and aggressive competition from corporations left behind less efficient, less innovative small companies. Populist sentiments against bigness, irrespective of efficiency or innovation, led to the passage of the Sherman Act. During the early 20th century, Justice Louis D. Brandeis personified the fight against bigness. The Brandeisian approach perceives antitrust laws not merely as a set of laws that prohibit anticompetitive conducts (defined as inefficient and harming consumers) but, more importantly, as a set of laws that counter market concentration. Antitrust laws as a “de-concentration” tool best correspond to the populist origins of the Sherman Act.
The Neo-Brandeisians claim a shared lineage with Brandeis’ view and with the populist tradition. Ms. Khan, the soon-to-be FTC Commissioner, advocates for antitrust enforcement to fit into the Brandeisian/populist vision of anti-bigness enforcement where aggressive interventions become instrumental for redesigning markets consisting of only small and medium-sized enterprises. Her nomination, in that regard, constitutes a considerable illustration of Biden antitrust unorthodoxy.
Brushing away decades of case law and agency practice, this nomination informs us about returning to old theories justifying aggressive antitrust enforcement where global competition and size matters in the race for global innovation.
Ms. Khan’s influence within and outside the FTC cannot be underestimated. Irrespective of majority voting within the FTC and obstacles inherent to the judicial review of the FTC’s decisions, her influence has already contributed to a change in tone toward a more populist vision for antitrust enforcement. It is Biden antitrust unorthodoxy in the FTC. It is also confirmed within the White House.
Even worse, a White House antitrust official with deliberative functions would de facto supersede the FTC’s or the DOJ’s activities, pressuring the agencies to abandon their law enforcement mandates and dive into the type of partisan, populist regulation they are supposed to neutralize.
Biden has tapped Columbia law professor Tim Wu to fill the White House position, which will occupy a seat on the National Economic Council. Do not underestimate the significance of this moment because it represents far more than just adding a new box to the White House org chart. It cements a shift towards a more politicized, hands-on approach to antitrust at the highest administration level, which will have profound implications for the U.S. economy.
There has long been a bipartisan consensus that antitrust enforcement falls under the purview of law enforcement authorities, underscoring that it must be grounded in rule-of-law principles, with courts best positioned to adjudicate antitrust liability cases. Whether it was carried out by the Justice Department’s Antitrust Division or by the independent subject-matter experts at the Federal Trade Commission (FTC), it was well understood that antitrust enforcement needed to remain independent from the political pressures of the executive branch of government. Wu’s arrival marks the splintering of that consensus.
Whether the new post was conceived for coordination or deliberative purposes, it is unnecessary at best. At worst, granting discretionary power to a White House antitrust official will give life to populist sentiment against large companies—particularly tech companies—to the detriment of consumers and innovation.
Suppose it is the first scenario, and the position focuses on improving coordination between the DOJ’s Antitrust Division and the FTC. Coordination between the two agencies is undoubtedly necessary, but it is critical to note their respective roles. The FTC is supposed to champion consumer welfare, not analyze business practices. Meanwhile, DOJ is a law enforcement agency tasked with investigating and punishing companies that break the law. If there is a deficiency in communication between them, then the solution should be to improve their existing liaison system, not add a new backseat driver at the White House.
The truth is that there have already been coordination efforts stemming from the two agencies’ overlapping responsibilities. For example, they have introduced joint mechanisms for premerger and enforcement clearances. And while there is certainly room for further progress, this type of communication has improved over time, becoming increasingly systematic in litigation and policymaking.
So now suppose the new White House position exists for deliberative purposes. First, it would cut against the promise President Biden made when he announced his top DOJ officials, saying they represented his “deeply held commitment to reaffirming the Department of Justice as a pillar of independence and integrity.” There would instead be a risk of undue interference turning antitrust enforcement into a political exercise that undermines DOJ’s adherence to the rule of law.
Even worse, a White House antitrust official with deliberative functions would de facto supersede the FTC’s or the DOJ’s activities, pressuring the agencies to abandon their law enforcement mandates and dive into the type of partisan, populist regulation they are supposed to neutralize. Indeed, Congress has revised and updated antitrust laws several times since the Sherman Antitrust Act was first passed at the end of the 19th century and has given the FTC and DOJ unilateral authority to litigate competition claims. A White House antitrust official carrying out a deliberative mandate would not only threaten this unilateral authority but also subvert the separation of powers that the Constitution and FTC Act were designed to protect.
Antitrust enforcers should look at each case on the merits. The worst-case scenario is that having an antitrust czar in the White House will lead to prescriptive policies driven by political agendas, not dispassionate evidence, and push enforcement agencies to inflict the exact harms they are officially tasked to heal.
Biden’s antitrust unorthodoxy has already unfolded. These two nominations are illustrative of such unconventional antitrust enforcement, which will revolutionize American capitalism profoundly. Anti-bigness sentiments will thrive despite the multiple benefits of corporate size. Populist antitrust enforcement appears inevitable, albeit alternative paths lay ahead of us. American capitalism ought to be reformed differently for the benefit of consumers and of innovation. These paths can only be envisioned once the populist agitation would have ceased. For now, it is Biden’s antitrust unorthodoxy.