During the Democratic presidential primary, several candidates made antitrust enforcement against Big Tech part of their campaign pitch. Joe Biden was not one of them. When he won the nomination, and ultimately the presidency, Silicon Valley executives probably felt as if they had dodged a bullet. If so, they appear to have been mistaken.
On Tuesday morning, Politico reported that Biden plans to nominate the legal academic Lina Khan to an open seat on the Federal Trade Commission, one of the agencies with the most power to enforce antitrust laws. Khan is at the vanguard of the Big Tech antitrust movement. In January 2017, while still a student at Yale Law School, she became an overnight academic celebrity with the publication of a paper titled “Amazon’s Antitrust Paradox,” which both took aim at Amazon’s anticompetitive behavior and delivered a powerful critique of the antitrust establishment. Last year, as a staffer on the House antitrust subcommittee, she was a key figure behind the landmark investigation into Facebook, Amazon, Google, and Apple. Now, Khan is on the verge of becoming part of a new antitrust establishment. (Disclosure: Khan and I went to law school together and have remained friendly. On the other hand, she didn’t reply to my request for comment.)
Khan would be the second high-profile critic of Big Tech recruited to the administration in just the past few days. Last week, Biden named Tim Wu to the National Economic Council as a special assistant for technology and competition policy. Wu, who like Khan is a law professor at Columbia, is best known for coining the term “net neutrality.” In his 2010 book The Master Switch, at a time when very few people were putting “tech” and “antitrust” in the same sentence, he warned about the tendency for new communication technologies to monopolize. More recently he has emerged as one of the most sophisticated critics of the attention-driven business models of companies like Facebook and Google. Khan and Wu are the kind of people who would have likely staffed an Elizabeth Warren administration. The fact that Biden is bringing them on board is the strongest sign yet that his administration could have a much more critical eye toward tech and antitrust than many people expected.
If appointed and confirmed, Khan would be one of three Democrats among the FTC’s five commissioners, meaning she can’t single-handedly shape the agency’s direction. Still, her appointment could be particularly consequential. Khan has written about the need to use all the tools in the “antimonopoly toolbox,” rather than merely breaking up individual companies. Well, the FTC has a lot of tools. It hasn’t used them much of late—even when it has imposed fines on the biggest tech companies, they have been for trivial amounts—but they exist. Like the Department of Justice, the FTC can block mergers and sue to undo them after the fact—as it did when it filed a case against Facebook in December. But Congress has also granted the agency the power, seldom used, to issue legally binding rules governing what counts as fair competition, meaning it can reform the law, within limits, even if Congress doesn’t act.
“My dream is that it would start writing competition rules that just articulate what practices are prohibited,” said Sandeep Vaheesan, legal director at the Open Markets Institute, an anti-monopoly think tank, in an interview late last year. “So, instead of having to go litigate every monopoly and spend three to five years on a case, it would just establish rules saying the following practices are illegal—either categorically, or just if you’re dominant.” For example, he says, the FTC could issue a rule prohibiting employers from making workers sign non-compete clauses.
The fact that Khan is even being discussed for a role on the FTC shows how dramatically the consensus on antitrust and competition policy has shifted. From the late 1970s until quite recently, both Democrats and Republicans had a laissez-faire attitude toward corporate monopolies. The era of weak antitrust enforcement continued through the administration of Barack Obama, during which mergers hit an all-time high.
But the Obama era also saw the birth of the new anti-monopoly movement of which Khan is a leading member. The movement got its start primarily at Open Markets, an anti-monopoly group founded by business journalist Barry C. Lynn in 2010, housed within the New America think tank. One of Lynn’s early hires, in 2011, was a then-recent college grad named Lina Khan. Throughout the 2010s, Lynn, Khan, and others published a series of in-depth articles in policy-focused magazines like the Washington Monthly arguing that lax antitrust enforcement quietly drove a host of ills, from income inequality to reduced innovation to the impoverishment of America’s independent farmers. (New America receives significant funding from former Google CEO Eric Schmidt. In 2017, after Lynn praised a European Union fine against the search giant, he and his team were kicked out. Both New America and Google denied the exile was related to Lynn’s statement at the time; today, the Open Markets Institute is an independent organization.)
The idea that monopolies were killing the economy remained something of a fringe position until the back end of the Obama era, when some key figures inside and outside the administration started taking note. Then-presidential candidate Hillary Clinton even published an op-ed in late 2015 promising to strengthen antitrust enforcement if elected, although she never made it a major part of her platform. After Donald Trump won that election, the Democratic Party increasingly made competition policy a key part of its messaging, part of a broader bid to connect with more working-class voters. Even then, Big Tech was barely a part of that conversation, perhaps because the party still viewed Facebook and Google as important allies. But as the backlash to Silicon Valley has grown on both sides of the aisle, the tech industry has found itself at the center of the renewed antitrust discussion.
Meanwhile, although the president has yet to name the head of the Department of Justice antitrust division, the Biden administration is quietly being stocked with people who have ties to the new anti-monopoly push—sometimes referred to as the New Brandeis movement or, more derisively, hipster antitrust. His transition team included Sarah Miller, a former Open Markets employee who now runs another anti-monopoly group, the American Economic Liberties Project. Antitrust hipsters are beginning to dot agencies like the Office of Management and Budget and the Department of Agriculture. Biden’s national security adviser, Jake Sullivan, was senior policy adviser to the Clinton campaign, where he helped inject some antitrust ideas. If it goes through, Khan’s elevation to the FTC would not trigger an ideological shift on antitrust so much as reflect one that has already taken place.
Over the past year, Biden has compared taking office during the Covid-19 pandemic to the challenge Franklin Roosevelt faced leading the country out of the Great Depression. The passage of a $1.9 trillion economic stimulus bill is one sign that he’s taking FDR’s example seriously. An antitrust crackdown would be another. Elementary schoolers learn about the “trustbuster” Teddy Roosevelt, but in fact it’s his distant cousin who kicked off the most active period of antitrust enforcement in the country’s history. If Biden’s personnel choices mean that agencies like the FTC are about to begin wielding their power more aggressively, the consequences could be dramatic—and not only for the tech sector. Industries like hospitals, pharmacies, and agriculture are almost as heavily concentrated as search or ecommerce. The antitrust hipsters argue that tackling this corporate concentration would transform America. It may not be long before they have a chance to prove it.