Opinion | Biden’s Big Antitrust Push Isn’t Going to Be Easy
However even when Kanter’s new boss didn’t need him for the job initially, there are extra important considerations about Kanter’s means to marshal the assist and enthusiasm of the road attorneys and employees who work within the division. Kanter has by no means truly labored within the DOJ earlier than and has no expertise managing a big group that resembles something just like the Antitrust Division and its 700 government employees. His authorities expertise comprises a couple of years working on the Federal Commerce Fee within the late Nineteen Nineties straight out of legislation faculty. He spent the final 20 years working at quite a lot of personal legislation corporations in Washington, D.C., where he litigated against Google and represented corporations that included Microsoft, Uber, Yelp, and Information Corp. — work that’s seemingly tolerated by the identical individuals who opposed Davies on the speculation that these kinds of corporations have been the victims of Big Tech’s sharp-elbowed (and at instances arguably unlawful) enterprise practices.
As a relative outsider thrust atop a big authorities group, Kanter shouldn’t be that completely different from Khan, who now oversees more than 1,000 employees on the FTC after a really sparse government career of her own. For months, tales from POLITICO and different major outlets have reported that Khan has struggled to achieve the arrogance and assist of the profession employees who truly run the company. It isn’t simple to take the helm of a giant group whose profession staffers could view you with suspicion (and probably even disdain), as Khan appears to be studying the onerous means and as Kanter could quickly be taught as properly.
Legally talking, Kanter will even want to cope with outsized expectations from progressives who could also be overly optimistic about what may be achieved via extra aggressive enforcement in an space of the legislation that’s deeply conservative — ideologically, economically and jurisprudentially. A significant difficulty will middle on the division’s method to certainly one of antitrust legislation’s most basic ideas: the so-called consumer welfare standard — underneath which regulators and courts attempt to decide whether or not a proposed merger or challenged transaction will hurt shoppers within the type of increased costs, decreased output or diminished high quality — and, extra broadly, what the targets of antitrust legislation must be.
Lately, self-styled antitrust reformers have argued that the present framework, which is mostly traced to former Solicitor Normal Robert Bork, is way too slim. Khan, as an example, once argued that antitrust law ought to “shield shoppers from anticompetitive overcharges and small producers from anticompetitive underpayments, protect open markets, and disperse financial and political energy.” In July, Biden signed an executive order on competitors spearheaded by Wu that took a equally expansive view — arguing that “extreme market focus threatens primary financial liberties, democratic accountability, and the welfare of employees, farmers, small companies, startups, and shoppers.” Regardless of the commonly interesting nature of this form of language, the trouble is in reality deeply controversial amongst many antitrust authorized professionals, who query its coherence and administrability.
Precisely the place Kanter stands on these massive questions is directionally obvious, however he has to date managed to keep away from stepping into some essential specifics. In an FTC roundtable in 2018, he made clear that he was sympathetic to the reformers’ view, however throughout the affirmation course of, he offered written responses to questions from Sen. Chuck Grassley (R-Iowa) on the subject that had been far shakier on particulars. In them, Kanter wrote that he had previously “voiced considerations that the applying of the patron welfare normal has been inconsistent, obscure, and inadequate to preserve tempo with market realities” and that “efficient antitrust enforcement requires a deep understanding of market realities and details to decide whether or not the conduct at difficulty harms competitors and the aggressive course of.” He proceeded to successfully ignore Grassley’s questions on whether or not antitrust legislation must be used both to promote wage equality or to strengthen labor rights.
Kanter wouldn’t have been nominated if the administration and his backers weren’t assured that he shares their targets, however implementing them is one other factor solely. There are very actual questions on how to administer a policymaking and enforcement regime utilizing an amorphous mixture of financial aims and political values. What precisely does it imply to “disperse financial and political energy” within the context of a hypothetical merger? When taking a look at a possible transaction, how do you stability the supposed results of decrease costs in opposition to wage inequality? These aren’t questions that will probably be as simple to dodge in courtroom filings and courtrooms as they’re in roundtables and legislation journals.
Lastly, there may be one other problem for Kanter and the putative reformers that they may not have foreseen years in the past after they started to formulate and unfold their concepts — specifically, that they might come to energy at an economically awkward second. Regardless of the White Home’s best efforts, People seem to be extremely involved in the intervening time with inflation, nervous concerning the costs of the particular issues that they purchase. Relying on how lengthy this era lasts, an antitrust enforcement program that tries to upend the patron welfare normal and its deal with decreasing prices may show even tougher than it will in any other case already be.
Kanter’s ascendance on the DOJ represents the end result of an extended profession and the prospect of great modifications. It’s a main achievement and was little question tough to attain. Now comes the onerous half.