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Biden’s nominees show embrace of progressive views of Big Tech

Several outspoken critics of Big Tech named to prominent antitrust positions

Antitrust attorney Jonathan Kanter testifies before the Senate Judiciary Committee last week. If confirmed, he would be the latest Big Tech critic in the Biden administration.
Antitrust attorney Jonathan Kanter testifies before the Senate Judiciary Committee last week. If confirmed, he would be the latest Big Tech critic in the Biden administration. (Win McNamee/Getty Images)

When Joe Biden sought the Democratic nomination for president by appealing to centrist voters who felt rivals such as Sens. Bernie Sanders and Elizabeth Warren were too progressive, one of the lines he declined to cross was endorsing the federal government busting up technology giants like Facebook, Google and Amazon.

At a time when many Democratic lawmakers and progressive advocates were ramping up a populist antitrust campaign against a group of companies they said had grown too powerful with too little oversight, Biden was holding his cards close. Breakups were “premature,” he said, but “something we should take a really hard look at.”

The resulting assumption among antitrust observers was that Biden, if he made it to the White House, might pay lip service to the Big Tech critics to his left while maintaining a largely moderate policy posture toward the industry.

[Whistleblower testifies as lawmakers take aim at Facebook again]

But nearly nine months into his administration, Biden has surprised just about everyone, hiring or nominating a trifecta of strident Big Tech critics for top federal antitrust positions — each with a reputation for being a thorn in Silicon Valley’s side.

First, he named Columbia University law professor Tim Wu, an outspoken advocate of breaking up Facebook, as a special adviser on technology and competition policy. Then he picked Lina Khan, author of a Yale Law Journal playbook for breaking up Amazon, for a seat on the Federal Trade Commission — and named her chairwoman after the Senate confirmed her.

Then, in July, he nominated lawyer Jonathan Kanter, who has represented smaller technology companies in lawsuits against Google and Apple, to be assistant attorney general in charge of the Justice Department’s Antitrust Division. Last week, Kanter sailed through questioning by the Senate Judiciary Committee, winning praise from Democrats and Republicans alike.

[Antitrust hawks say Facebook case highlights need for new laws]

At the FTC, Khan already has expanded a lawsuit brought by the Trump administration against Facebook. If Kanter is confirmed to be assistant attorney general, he will inherit an antitrust suit against Google. Wu was behind an executive order signed by Biden over the summer that directs various federal agencies to ensure competition in the economic sectors they regulate.

‘Circumvent Congress’

The progressive swing was something no one saw coming, and it has sent shock waves through Silicon Valley, leading industry groups aligned with tech giants to scramble to persuade lawmakers to vote against Kanter, the last piece of Biden’s antitrust puzzle.

“I think a lot of people across the country saw candidate Biden as a centrist moderate,” said Carl Szabo, vice president of NetChoice, a coalition with members including Facebook, Google and Amazon. “And it turns out that he is definitely interested in advancing left-wing and progressive politics at all levels of the government, including at the antitrust level.”

A flyer circulated by NetChoice in Congress last week urged senators to oppose Kanter’s nomination, accusing the Biden administration of trying to “con” Republicans into supporting “a progressive advocate, NOT an impartial enforcer” who would “use antitrust enforcement to circumvent Congress” to advance progressive policies.

Equally caught off guard were antitrust observers on both sides of the debate — those who believe increased regulation would ensure competition and protect consumers, and others who say breakups and overregulation hurt innovation and U.S. global competitiveness.

After Donald Trump’s victory in the 2016 presidential election, “there was a genuine reflection on the approach to economic policy among the Democratic establishment and a realization that there was a critical field of policy that they never paid attention to,” said Sarah Miller, executive director of the American Economic Liberties Project, which favors stricter regulations.

“They needed to turn the page for their agenda to succeed,” Miller said. “And that, even to my surprise, is what they have done.”

Geoffrey Manne, president of the International Center for Law and Economics, which advocates limited antitrust regulation of digital platforms, said that when Biden hired Wu to work in the White House, it was an olive branch to progressive Democrats.

“It sort of seemed not like a super important position that would give him a chance to flex his policy muscles, but didn’t seem like it would necessarily indicate anything about the administration’s agenda,” he said. “Now, with Lina as FTC chairwoman and Jonathan at DOJ, it is surprising, and it doesn’t seem to match the campaign rhetoric.”

Beyond Biden

Whether Biden favors breaking up the technology companies is immaterial, Manne said.

“We’re not talking about Biden anymore,” he said. “We’re talking about Kanter and Tim Wu and Lina Khan. Who cares what Biden personally thinks? He set things in motion that he obviously doesn’t mind happening. And I think those guys are very serious about it.”

Still, Biden supporters say his actions in the White House align with his nominations. Charlotte Slaiman, the director of competition policy at Public Knowledge, a nonpartisan consumer rights organization, said a July executive order indicated Biden’s support for “a whole-of-government [effort] to regulating competition policy.”

Biden signed an executive order on July 9 saying his administration would enforce antitrust laws “to combat the excessive concentration of industry.” The order said antitrust enforcement would be used to meet challenges posed by new industries and technologies, including the rise of the dominant internet platforms.

“He is not just focused on the antitrust enforcement agencies but also sector-specific agencies, and how they should be prioritizing competition as well,” Slaiman said. “I expect that we’ll continue to see follow-through on that order from other parts of the executive branch.”

And although Biden may not have mentioned Wu, Khan or Kanter during the election, Slaiman said, the themes of his campaign aligned with their visions for regulating a more fair economy.

“It’s consistent with his campaign. That was really about the little guy and making the economy work for regular people,” she said. “He came in saying that he wanted to build a bridge with the more progressive side of the party, and it’s clear that he’s doing that.”

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