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The White House announced on Tuesday the appointment of Jonathan Kanter as assistant attorney general for antitrust at the Department of Justice.
In 2017, at the end of the first annual Stigler Center conference put on at the University of Chicago about monopolies and economic concentration, a handful of attendees sat at a lone table in the back of the room. They were the backbone of what came to be known as the “New Brandeis” movement, a collection of think tankers, lawyers, academics, and analysts who wanted to restore the anti-monopoly tradition to America, and begin to reverse the mindset that they believed had led to a narrowing consolidation across the majority of the nation’s industries.
At the time, they were out of power, and trying to figure out how to build their movement, from a small group of intellectuals battling within the entrenched antitrust establishment to the upper echelons of policymaking. Two of the people at that table were Lina Khan, then a fellow with the Open Markets program at the New America Foundation, and Jonathan Kanter, then a plaintiff’s attorney with Paul, Weiss, Rifkind, Wharton & Garrison.
Improbably, four years later, Khan and Kanter are now both poised to run competition policy in the United States.
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After six months of waiting and a push and pull between factions of the administration, the White House announced Kanter as assistant attorney general for antitrust on Tuesday afternoon. If confirmed, he would find a government colleague in Khan, the new chair of the Federal Trade Commission. The appointment marks another big win for the New Brandeis movement, who now have allies at the two leading antitrust enforcement agencies, as well as inside the White House, where Tim Wu works as a special assistant for technology and competition policy.
Wu and Bharat Ramamurti, the former Elizabeth Warren aide who is deputy director at the National Economic Council for financial reform and consumer protection, largely wrote the Biden competition executive order released on July 9; now Khan and Kanter will largely carry it out.
The Biden administration now has antitrust advocates with a track record of actually pursuing antitrust in powerful positions.
Kanter’s nomination is the result of a lengthy tug-of-war between progressive and corporate forces within the Democratic Party. Under the leadership of Attorney General Merrick Garland, the Department of Justice in particular has been perhaps the most business-as-usual department of the Biden regime, stuffed to the gills with corporate lawyers and BigLaw alums like Garland himself, many of whom have represented or done work for the country’s largest tech companies, be it Facebook, Amazon, Google, or Apple.
In the early weeks of the Biden administration, Garland made it clear that he wanted Susan Davies in a top-level position at DOJ. The two have a lengthy relationship, dating back to their shared time in the Clinton Justice Department; Garland went on to notorious Republican BigLaw firm Kirkland & Ellis. As the Prospect previously reported, Garland was pushing Davies to head the Antitrust Division at DOJ, the role that went to Kanter. Davies famously defended Facebook against antitrust charges, yet she was not even an antitrust lawyer.
But Garland did not get his way. Davies eventually withdrew from consideration after public outcry, and business interests resettled their support with onetime Joe Lieberman ally Jonathan Sallet, a defensive endorsement aimed primarily at keeping Kanter from the role. That, importantly, did not work either.
Garland was known to be fighting the Kanter appointment. Now, Biden has steered the DOJ in a direction away from Garland’s immediate preferences, an important development as Garland’s clemency for lawbreaking Trump officials and willingness to continue Trump-era policies has caused him to fall afoul of even liberal commentators. Garland may have final say over certain decisions from the Antitrust Division, but his position within the administration has been weakened.
Kanter has been an antitrust plaintiff’s lawyer for most of his 20-year career, initially with several private firms including Paul, Weiss, and most recently with his own boutique law firm, the Kanter Law Group. He was key to the design of state- and federal-level antitrust cases against both Facebook and Google. He also spent some time briefly at the FTC’s Bureau of Competition. His career has been spent in opposition to the beliefs of the antitrust establishment, which discounts the competition problem and believes in the consumer welfare standard as the best way to measure whether abuses of market power exist.
Importantly, it’s unlikely that Kanter will face the same consternation from the small and insular antitrust establishment as Khan, seen as an outsider who didn’t pay her dues before gaining a top slot at age 32. Kanter is well respected throughout these circles, as seen in the reaction of the University of Michigan’s Daniel Crane, a proponent of the status quo in competition policy. “We have different visions for antitrust, but … he is smart and principled and should be confirmed,” Crane tweeted.
Along with Khan, the Biden administration now has antitrust advocates with a track record of actually pursuing antitrust in powerful positions, rather than former toadies ready to engage in the corporate capture that has been the norm under recent presidents, both Republican and Democrat.
Both will need some help from Congress. Staff attorneys at the FTC and the Justice Department have been leaving the government, not only because of differences of opinion with the new regime, but because Big Tech firms are throwing money at them. Enticing new talent will require money, and a bill that recently passed the Senate which would increase merger fees to fund enforcement agencies will help. Expect a much younger and less experienced crop of more aggressive lawyers at both agencies.
Biden in some sense tipped this move with his sweeping July executive order, which directed the Department of Justice to pursue a litany of competition-enhancing antitrust measures, everything from consideration of unwinding past mergers to a patent policy reform to expanding competition in air transportation. Of course, it would have been untenable to issue an executive order so broad without someone to enact it, and leaving that task to the acting chief of the Antitrust Division, Richard Powers, would have been irresponsible at best. Issuing that order before handing over the reins to a decorated ideological opponent of that order would have made even less sense.
It’s a win, too, for House progressives, who vocally advocated for Kanter’s appointment in the press. Two of his most outspoken supporters have been New York freshmen Jamaal Bowman and Mondaire Jones, both of whom went out on a limb to stump for an appointment that more senior members held quiet on.
While many priorities of the Biden agenda remain unsettled, and the fate of his infrastructure package grows murkier by the day, the president has continued to chart an ambitious and even transformational course with regard to antitrust. And while he’s shown less courage in taking on the pharmaceutical companies, or health insurers, or oil majors in the context of policy, he’s shown a continued willingness to use nonlegislative power to tangle with the largest forces in our economy. That may prove to be one of the defining achievements of his tenure as president.
