Anti-Monopoly

The federal government may no longer be operating under the onus of Trump-era austerity, but agencies across the federal government are still far from having the resources they need to quickly and effectively fulfill their responsibilities to the American people. For the most part, President Biden’s proposed FY 2023 budget fails to fill that gap. However, increased funding for antitrust regulation is one of the bright spots in an otherwise uninspired budget. As we have covered in the past, both the Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division (ATR) saw staffing levels stagnate and budget allocations that did not keep pace with inflation or GDP growth. 

We are a diverse coalition of advocacy organizations with a strong interest in the fair and neutral application of the law by courts. We write to express our concern about the growing problem of bias and conflicts of interest that arise from Big Tech funding the careers of the legal experts that judges draw on to understand the law and support their decisions. We ask that the Center for Judicial Ethics assist judges to avoid citing to experts and academics with obvious conflicts of interest as they adjudicate the many cases regarding the Big Tech platforms. We further ask that you encourage judges to require comprehensive disclosure by experts hired by Big Tech platforms.

The Federal Maritime Commission’s leaders have no interest in breaking up the shipping conglomerates’ price-gouging which Biden promised the nation.

The celebration of Sunshine Week earlier this month underscored the importance of the continued effort to ensure effective administration of the Freedom of Information Act (FOIA) and its central role for open democracy. Passed by Congress in 1966, FOIA allows citizens to request unpublished records and information from the federal government. Watchdog organizations have long relied on records obtained from FOIA requests to hold the government accountable to public interests. But, the system comes with a plethora of flaws that prevents adequate timeliness and transparency. Endless backlogs, increased usage of exemptions, partially redacted documents, and outright denials leave much to be desired in the administration of FOIA today.

The Department of Justice’s Antitrust Division (ATR) is, along with the Federal Trade Commission (FTC), the primary regulator of antitrust law and is responsible for ensuring markets’ competitiveness. In that capacity, it investigates corporate consolidation and allegations of collusion and anticompetitive practices that undermine the free market. ATR is also responsible for supervising mergers and acquisitions to ensure that companies cannot establish monopolies. While both ATR and the FTC share this objective, the two divide jurisdiction based on industry. ATR also investigates and prosecutes criminal antitrust violations.

We write to express our concern about your refusal to release your calendars and its implications for public trust in your department and this administration. As a public servant, the American people have a right to know who you meet with, when you meet with them, and what you discuss. In the absence of proactive disclosure, and with other routes to obtaining this information subject to extensive delays, the public is being left in the dark about who may be influencing the country’s trade and economic policy, and how. This is all the more alarming in light of your recent comments that favored Big Tech and contradicted Biden administration policy. We ask that you immediately address this grave threat to public trust by releasing your calendars, retroactively and at regular intervals moving forward. 

The Justice Department plays a key role in President Biden’s vision of promoting “the interests of American workers, businesses, and consumers” through increasing competition, a plan which stands to be one the most enduring legacies of this administration. Your commitment to promote “competition by fairly and vigorously enforcing the antitrust laws,” along with the confirmation of Jonathan Kanter to Assistant Attorney General for the Antitrust Division, are crucial steps forward in this vision.

Since the Copyright Office provides expert recommendations and advice to Congress, the executive branch, and the courts, Disney’s recent employees may soon be advising government officials about copyright policy.

In theory, nothing prevents Biden from hiring whomever Kanter personally trusts to help execute their shared agenda. So what’s causing the chaos?

One tiny federal agency with 116 full-time employees and a $28.9 million dollar budget is in charge of regulating the global marine economy, which contributes $397 billion to the US GDP annually and accounts for 80 percent of goods shipped worldwide. That’s not just an apples and oranges discrepancy—that’s like an apple versus Apple. The budget for the military’s marching bands is fifteen times greater than the Federal Maritime Commission’s budget; the Marines alone have five times more musicians than the Commission has staff.

On November 2, the Revolving Door Project led a coalition of seven organizations in a letter to Penn Law Dean Theodore Ruger. The letter calls on the law school to require its faculty to “clearly disclose any compensation or funding they receive from companies, either direct or indirect (e.g., from a foundation or organization largely funded by a corporation or corporate officer associated with a specific corporation with a stake in the work in question).”

It was never a secret that Attorney General Merrick Garland was among the key Biden administration figures opposing Jonathan Kanter’s nomination as assistant attorney general for antitrust. Ultimately, however, Garland did not get his way; the appointment went to Kanter rather than to one of the many Big Tech–allied BigLaw partners whom Garland favored. In view of Kanter’s career as a plaintiff’s lawyer, his nomination was rightly celebrated as a decisive victory by antitrust reformers and BigLaw opponents alike. But it was just one battle in a broader war for renewed anti-monopoly enforcement and a DOJ eager to build back better in every policy area.

Facebook continues to lie to the public with abandon. That is one of the main takeaways from the Facebook whistleblower’s testimony last week. Even now, having been called out, Facebook is frantically working to obscure and underplay its own dishonesty. 

We write to you as a broad coalition of organizations committed to holding corporations that engage in anti-competitive behavior accountable. For far too long, Washington has sat by as technology industry giants have accumulated monopoly power at the expense of consumers and competitors alike. The nomination of Jonathan Kanter to serve as Assistant Attorney General for the Department of Justice Antitrust Division is a strong step toward turning President Joe Biden’s vision of an open economy into reality.