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On antitrust and big tech, Biden must return to his centrist roots

On antitrust and big tech, Biden must return to his centrist roots
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The President of the United States has limited powers to intervene in the raging debates over antitrust and Big Tech. Perhaps most important among those powers are his nominations to lead the antitrust agencies — the Federal Trade Commission and the Justice Department’s Antitrust Division. President BidenJoe BidenDefense lawyers for alleged Capitol rioters to get tours of U.S. Capitol Sasse to introduce legislation giving new hires signing bonuses after negative jobs report Three questions about Biden's conservation goals MORE has already exercised one of those options in nominating Lina Khan to be a commissioner of the Federal Trade Commission and has made a similar decision in appointing Columbia law professor Tim Wu to serve as antitrust czar on the National Economic Council. 

Khan and Wu are smart, accomplished thinkers on antitrust and had every right to be selected. Yet, both come from the neo-Brandeisian school of antitrust that is controversial even within the Democratic Party. Unless Biden wants to tie the fortunes of his administration’s antitrust policy to neo-Brandeisianism, he should consider appointees with a different philosophical orientation for other key appointments, including the FTC chair and assistant attorney general for Antitrust. 

Antitrust stands at a generational moment, with everything from whether to bring additional cases against Big Tech, to potential legislative reforms, to the foundational objectives of antitrust up for grabs. To put things generally, there are three broad camps with respect to antitrust.

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The first camp — let’s call them pro-business conservatives — believes that current antitrust policies and doctrines are about right and that a dramatic shift in antitrust direction would threaten economic efficiency, consumer welfare, innovation, economic freedom, and American interests in the world. A second camp — let’s call them reformist centrists — agree with the first camp that antitrust should focus on consumer welfare and economic efficiency, but believe that antitrust enforcement and judicial doctrines have become far too permissive of monopolies and dominant firms. The reformists want to reinvigorate antitrust enforcement by making it easier for the government and private plaintiffs to bring suits. Finally, the neo-Brandeisian camp also wants to significantly reinvigorate antitrust enforcement, but sees the undivided pursuit of consumer welfare and economic efficiency as the root of the problem.  Following the philosophy of former U.S. Supreme Court Justice Louis BrandeisThe Curse of Bigness — the neo-Brandeisians wish to deploy antitrust to challenge corporate dominance whether or not it clearly threatens consumer interests.

What’s interesting about these three camps is that they don’t neatly follow partisan lines. A number of voices on the political right — although not styling themselves as neo-Brandeisians — have argued for using antitrust law much more vigorously to accomplish social and political objectives like breaking the stranglehold of Big Tech on social and political speech. By contrast, some on the political left see allies in Big Tech and are concerned that an overly aggressive antitrust policy could alienate voters who rely heavily on Big Tech products. I have heard concerns it will create power vacuums to be filled by companies less sympathetic to liberal points of view.

Given all of these political complexities, Biden would be wise not to associate his administration solely with the neo-Brandeisian position. Clearly, he is not going to nominate pro-business conservatives (elections have consequences!) but he should consider including reformist centrists in his antitrust slate.  Two important reasons support this conclusion.

The first reason is principled. Although there appears to be a broad consensus that antitrust needs a course correction, it would be premature to conclude that there is a similar consensus that it requires a wholesale re-thinking. While the neo-Brandeisians have clearly earned a seat at the table, so have at least the reformist centrists. 

The second reason is pragmatic. It’s far from clear whether the neo-Brandeisian position will achieve broad political support, and it would be politically risky to tie the administration too closely to that camp’s fortunes. During the New Deal, President Roosevelt pragmatically made the decision to spread people with a wide set of views about antitrust, competition and big business throughout his administration and called on different ones of them to lead as political winds shifted and facts on the ground evolved. If Biden ties himself to neo-Brandeisianism, he will not have that option.

Big decisions on antitrust remain ahead. The White House would do well to fill out its slate of appointments in a manner that gives it some flexibility as to how to meet them.

Daniel A. Crane is the Frederick Paul Furth, Sr. professor of Law at the University of Michigan.