Filling out Joe Biden’s administration was expected to be a contentious process. Every big job would spark a battle between the progressive and centrist camps vying for control of the Democratic Party. It hasn’t turned out that way: For the most part, Biden has managed to navigate intraparty tensions by finding broadly acceptable candidates, such as Secretary of the Treasury Janet Yellen, and to maintain party peace.
But one job looms that can’t elide the progressive-moderate split and carries enormous stakes for the future of Big Tech and American business generally: the Department of Justice’s antitrust chief. Biden’s choice for this role will signal whether his administration is going to try to limit growing corporate consolidation, especially among technology companies, or, as some critics fear, follow the more deferential path of the Obama administration.
“That pick is going to be the most important thing that Biden does on antitrust,” says Daniel Crane, a professor at the University of Michigan Law School.
The president’s appointments to the Federal Trade Commission will be significant as well. Biden plans to nominate Lina Khan, a Columbia legal scholar and proponent of muscular antitrust enforcement, to serve as a member of the FTC, Politico reported on March 9.
Even before last fall’s landmark antitrust lawsuits against Google and Facebook Inc., brought by Donald Trump’s Justice Department and the FTC respectively, the question of how aggressively to regulate U.S. corporations had emerged as a major point of contention among Democrats. The biggest fault line is the market power amassed by Amazon, Apple, Facebook, Google, and other marquee tech firms.
Until fairly recently, the size of these companies wasn’t a cause for concern in establishment legal circles, both Democrat or Republican. Since the 1970s, antitrust law has judged anticompetitive behavior mainly by its effect on consumer welfare. Popularized by the libertarian law professor Robert Bork, this approach argues that antitrust law should be concerned only with “price effect”— whether an action lowers consumer prices. By this measure, big isn’t necessarily bad: Amazon may be huge, but its efficiency produces low prices.
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