Anti-Monopoly

The battle for ensuring the Biden administration avoids being riddled with corporate capture has been going on since before the inauguration. As part of the Revolving Door Project’s ongoing mission to ensure that the federal government works in the public interest and not as an extension of corporate interests, RDP has been consistently involved in scrutinizing executive regulatory bodies. RDP’s work includes investigating nominees and appointees to important positions that enforce the nation’s antitrust laws and researching the capacity of those offices to fulfill their mandates. As progressive and grassroots groups push for White House officials free of ties to powerful industries such as Big Tech, Big Ag, Big Oil, and more, the pushback against monopolists is gaining momentum. With his administration, President Biden has the opportunity to use executive branch power to rein in monopolies by directing his officials to pursue anti-monopoly policy across all economic sectors. At RDP, we use our expertise and influence to contribute to the anti-monopoly movement.

Revolving Door Project tracks  the former antitrust enforcers who use the “revolving door” to switch between public service jobs and corporate gigs. Within antitrust regulators at both the leadership and staff level, there is a long history of these revolvers leveraging their federal experience to get new jobs at consulting companies and corporate BigLaw firms, just to turn around and use it to protect monopolists against the public interest they were once sworn to serve. Yet as we explained in Washington Monthly in 2020, most calls for change don’t include closing the revolving door between ostensibly “career staff” at the agencies and corporate entities. Perhaps the omission is tied to how respected officials and academics frequently and lucratively deploy their expertise at economic consulting firms that sell testimony to the government and merging parties alike. One high-profile example we have shone a light on is Fiona Scott Morton, a Yale professor, former ATR chief economist, and consultant for Apple and Amazon. While her clear conflict of interest shocked onlookers, the many former government officials working for BigLaw and economic consulting firms suggest the problem is much larger than just one professor. On the whole, our research details how conflicts of interests at the FTC and ATR are a systemic obstacle to real anti-monopoly action.

To hold the sway of revolvers in check, the Revolving Door Project also provides public pushback against officials who kowtow to corporations’ interests. For instance, RDP has done substantial work criticizing Attorney General Merrick Garland’s interference in the operations of the DOJ Antitrust Division, including pushing Big Tech-aligned lawyers such as Renata Hesse and Susan Davies to lead the Antitrust Division. Even after Jonathan Kanter was successfully appointed, Garland failed to provide Kanter with sufficient resources to enact an aggressive antitrust enforcement agenda. Meanwhile, Andrea Beaty and Eleanor Eagan discovered that  Susan Davies  had actually been running the Office of Legal Policy  on an interim basis without that ever being disclosed to the public. Following persistent questioning, the DOJ finally publicly listed Davies on their website. 

RDP also strives to contribute to the public discourse by publishing work that critically analyzes whether antitrust regulators have sufficient resources and staff to implement Biden’s priorities and by recognizing the importance of a “whole-of-government” approach to anti-monopoly efforts. As a critical part of our work promoting the importance of a whole-of-government approach to antitrust policy, RDP has analyzed the capacity of regulators to carry out the entirety of their mandates. We have done such analyses for the FTC and ATR, as well as an update on how President Biden’s spending proposals compare to recent histories of stagnant capacity.

The House Judiciary Subcommittee on Antitrust’s explosive 2020 hearing with the CEOs of Facebook, Apple, Google and (for the first time) Amazon was an incredible example of Congress holding modern-day robber barons accountable. As the Revolving Door Project’s Eleanor Eagan wrote in the American Prospect, the hearing could be replicated for many other actors, like private equity, which similarly drive economic concentration. Nonetheless, in this context, the hearing drew out the antitrust enforcement agencies’ complicity in our current concentrated economy. As our Max Moran wrote in The New Republic, “throughout the hearing, the figures who really came off looking inept were the federal antitrust enforcement agencies—the Federal Trade Commission (FTC) and the Department of Justice (DOJ) antitrust division.”

This ineptitude might not surprise those of us who pay attention to who actually runs the agencies. As the Revolving Door Project continues to investigate, there is a crisis of incentives at the FTC and the Department of Justice Antitrust Division (ATR), driven by the well-trodden path between government service and corporate boardrooms. We found that career-level officials leave the FTC for private law firms with alarming regularity, and the economists that advise the government on merger cases receive similar opportunities at economic consulting firms. Some officials just skip the middleman and become in-house economists or counsel at large corporations like Facebook and Amazon (in fact, as our Andrea Beaty wrote in Talking Points Memo, Big Tech poached many such officials in the run-up to the antitrust subcommittee hearing). That means former government officials end up working for firms on the other side of the courtroom from the antitrust enforcement agencies. They bring their insider knowledge of government tactics and strengths and weaknesses to their private employers and clients, who often try to avoid government oversight altogether.

Revolving Door Project researches how corporate capture and conflicts of interest influence merger enforcement outcomes. The rampant use of consent agreements during the Obama and Trump administration, which require the merging parties to divest specific assets, ultimately still allowed consolidation across entire industries. Such agreements are often riddled with conflicts of interest, such as a 2020 pharmaceutical mega-merger in which the merging companies were represented by former FTC officials in front of the FTC itself. 

Some merger cases show their full effect well after the fact — take for example, the FTC-approved Covidien-Newport acquisition that forestalled the country’s planned stockpile of ventilators, a decision that had deadly consequences during the coronavirus pandemic. As Andrea Beaty wrote in the American Prospect in 2020, all five commissioners and the Bureau of Competition head at the time of the decision went on to work at private law firms after leaving the FTC. On the other side of the aisle, pharma giant Covidien’s counsel included a former FTC lawyer who also helped get approval for Google’s acquisition of DoubleClick. And these are the respected experts, the high-profile appointees — the antitrust experts that a future Biden administration might rely on to enact ostensibly progressive reforms.

In other words, there is no viable path to enduring and effective antitrust enforcement without reform to both the rules and norms around who enforces the law on behalf of the public. Reining in unfair competition by corporate America shouldn’t be a stint to turbocharge a private sector career but rather a long term calling — a calling which should be accorded appropriate prestige and compensation.

The FTC and ATR are not the only agencies that can work to dismantle monopoly power. Agencies like the Department of Agriculture, Department of Defense, Federal Communications Commission and more also have cross-cutting responsibilities that can effectively reduce economic concentration. As RDP’s Hannah Story Brown detailed, the Federal Maritime Commission is a woefully understaffed and underfunded entity, despite its outsized power in antitrust regulation. The FMC was caught flat-footed during the ongoing supply chain crise, and is permeated by a culture of permissiveness, with its commissioners actively and publicly defending ocean carriers against the Biden administration’s crackdown amid record profits. RDP has also covered the role of regulators in propping up utility monopolies, with our Dorothy Slater writing about the role played by the Federal Energy Regulatory Commission and Biden’s nominee, Wilie Phillips’s past kowtowing to corporate interests.

The Patent and Trademark Office, which we’ve covered here, is responsible for overseeing the granting of intellectual property, which effectively endows the rights-holders with state-backed monopoly power over their registered products. This is particularly fraught in the pharmaceutical industry, including ongoing Covid medicine developments. This insidious form of serving monopolies at the expense of the public interest is something that RDP continuously covers. In particular, our TImi Iwayemi continues to advocate for open source vaccine development to aid in the global fight against Covid.

The Small Business Association, while not an antitrust regulator, plays a key role in bolstering small businesses. As our Miranda Litwak wrote for In These Times, the Small Business Association was established by Congress to provide “opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons…” And yet, business owners of color face the same disadvantages they did when the SBA was founded, and faced precarious situations due to the pandemic with little support from the SBA. Ensuring the survival of small businesses, particularly those owned by members of marginalized communities, is vital to dismantling monopoly power.

RELATED WORK

Our ongoing Industry Agenda series covers how monopolies and corporate interests seek to co-opt public policy to pad their profits.

Our BigLaw series tracks career staff and political appointees that revolve between government and corporate employers. 

Also, see our work on Government Capacity issues, which intersects with effective regulation in anti-monopoly work and beyond.

Below you will find some of the project’s writing and research on anti-monopoly policy. For a selection of quotes and interviews on the topic, please visit this page.