Big Business Declares War on Lina Khan

The U.S. Chamber of Commerce gets ready to go after the anti-monopoly movement and its leader at the Federal Trade Commission. But the conservative-corporate coalition is now splintering.

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Welcome to BIG, a newsletter about the politics of monopoly. If you’d like to sign up, you can do so here. Or just read on…

Today I’m writing about the nascent and increasingly important counter-attack against Lina Khan and the anti-monopolist movement. Where is coming from? What are their tactics? And can they succeed?

First, some follow-up on my last piece on shipping. I went on Rising to talk about ocean carrier consolidation. Also, the White House just endorsed a revamp of the Ocean Shipping Reform Act, explicitly citing concentration levels of the ocean carriers. So that’s good.

And now…

The Swamp Strikes at Lina Khan

Since the Senate confirmed Lina Khan to be one of two key antitrust enforcers in June, the network of corporatist operatives in D.C. and Wall Street have been quietly trying to undermine her. This week, the campaign came into the open. The U.S. Chamber of Commerce just announced in the Wall Street Journal that it will be engaged in open conflict with the Federal Trade Commission, and more broadly with anti-monopolists across government.

“It feels to the business community that the FTC has gone to war against us, and we have to go to war back,” said Chamber President and CEO Suzanne Clark. The plan from the Chamber is endless harassment of the agency. They are filing Freedom of Information Act requests for the correspondence of Khan and her staff, writing warning letters about the commission’s actions, and threatening to sue the FTC at every step (even on things that went through on a bipartisan vote). The Chamber is also sending letters to every agency in government, in organized pushback against the Biden executive order on competition. The goal is to frighten lawyers at these agencies, to make it too painful to try and govern.

Meanwhile, Google, which is probably funding the Chamber’s campaign against the Biden anti-monopoly agenda, demanded that new Assistant Attorney General Jonathan Kanter recuse himself from any involvement in the antitrust suit against them, and advocacy groups funded by dominant firms are echoing the attack on Khan. The Chamber’s public declaration of war is, in fact, pro forma; everyone knows that big tech funds the Chamber, and that big tech has been running a nonstop campaign against assertive antitrust enforcement. The only difference is now it’s public that they are doing it.

Attacks on public servants who stand up to power tend to start with process critiques, as well as allegations that someone is radical or dangerous. Jim Cramer on CNBC, for instance, has been regularly going after Khan as anti-business and unfairly hostile to big, as has conservative outlet Breitbart (which is rumored to have extensive ties to Facebook).

Antitrust defense lawyers are spreading false rumors, like the FTC is asking about corporate social responsibility policies in merger reviews, which is something that Senator Mike Lee - who seems to personally despise Khan - has picked up in hearings. Meanwhile, internal foes of Khan at the FTC are saying that she’s a bad manager, and that there’s a staff exodus. Stories with headlines like “Lina Khan Sees Turbulent Start as Head of Federal Trade Commission” emerge regularly.

The goal of all of these little process stories and rumors - true or not - is to spread doubt, so that when that official makes a mistake, there’s a pre-existing narrative about why that mistake happened. The real objection here is that Khan, and anti-monopolists like Jonathan Kanter, who was just confirmed as the Department of Justice Antitrust Division chief, are actually intent on wielding power.

Such pushback against Khan and anti-monopolists was inevitable, because the anti-monopoly movement is an existential threat to the power of Wall Street and dominant firms. The FTC is one of the key agencies in government designed to take on corporate misconduct and consolidation, and neutering the commission in the early 1980s was a key step in building a corporatized American order. The old guard desperately wants to keep the FTC out of the hands of the anti-monopolists, because they know how powerful it can be.

And Khan is a nightmare for them. Prior to her appointment, Khan’s academic work - in particular her analysis of Amazon - led to a wholesale rethinking of the problem of corporate power in both parties and across commerce. Scholars, labor leaders, and businesspeople are musing on the problem of concentration in everything from shipping to to meatpacking to oil and gas.

Now we’re starting to see what Khan looks like as an administrator, and as it turns out, she is a very serious and competent regulator. She’s already had one notable success in amplifying the work of the ‘right to repair’ movement. Apple, in response to FTC pressure, just announced that it will make it easier for consumers to repair their own phones and MacBooks. This follows Microsoft’s similar move, and we can expect to see changes across the economy as firms gradually stop locking customers out of their own equipment. That’s a big deal.

That said, the real challenge in the antitrust world is the historic merger wave. According to Bloomberg, “Companies have announced $2.8 trillion of deals so far in 2021, an unprecedented number that puts this year on track to be the most active ever.” (These are a result of cheap credit from the Fed and the CARES Act passed in 2020.) This wave creates a special problem for the FTC. While European competition enforcers can simply block a deal until it’s been investigated, in the U.S. deals automatically go through unless the FTC brings a challenge in court with a deeply researched complaint. With thousands of deals going through, the experience of being at the FTC today is like playing tennis against a machine that shoots tennis balls at you unrelentingly.

In the midst of this merger boom, Khan has been pursuing every possible trick to address the problem. She has demanded merging firms get prior approval before pursuing new mergers, ended the process of quickly clearing mergers, and withdrawn loose merger guidelines. The FTC is now sending letters to firms telling them that the commission may undo mergers in the future, thus creating an incentive for firms to delay deals. These moves are not enough to stop the historic wave, but they have slowed it slightly, and generated concern among dealmakers. “This is significant and could have collateral consequences on the M&A deal space, particularly for private equity firms and their exit plans for a carve-out business or assets,” said Erica Weisgerber, partner at Debevoise & Plimpton LLP.

In response to this newfound skepticism of mergers, the antitrust bar, which openly encourages firms to pursue illegal mergers, is now suggesting a collective strategy to overwhelm both the DOJ and FTC. Here’s Paul Weiss partner Scott Barshay offering a plan to his fellow attorneys:

“You’ve got to be prepared to go the distance, and you’ve got to be prepared to go for a much longer period of time than we would have told them before. And you got to have all that ready up front, and if you have that, the dirty little secret that I think Lina Khan is still trying to figure out is: They can’t sue everybody.”

Basically, the antitrust bar is trying to put out the call to organize a mass crime spree.

Christine Wilson: You Can’t Sit With Us!

But there’s more than just strategic opposition from firms that want to merge. Khan’s meteoric ascent has generated personal bitterness among the old guard, among the scholars and politicians who have made it their life’s work to orient antitrust around ‘consumer welfare,’ or rule by a narrow clique of pro-monopoly economists.

This group includes Herb Hovenkamp and Google consultant Carl Shapiro, two center-left scholars who have had an iron-grip on antitrust thinking for decades, and see the emergence of what they perceive as virtuous monopolies like Google as a validation of their work. They reacted angrily to Khan’s withdrawal of the merger guidelines they had largely shaped.

At the FTC, two minority Republican Commissioners, libertarians Noah Phillips and Christine Wilson, have pursued a corporatist agenda no matter who is in charge. Under the Trump administration, Wilson and Phillips opposed Trump’s antitrust suit against Facebook, and tried to block Trump’s goal of making things in America. Khan both refiled the Trump Facebook case and implemented a strong policy against Made in America fraud, which again drew opposition from Phillips and Wilson.

The debate is now moving beyond policy disagreements to something more personal. “It is only with the arrival of Chair Khan that decades of tradition has been throw out the window,” Wilson told Congressman Jim Jordan in September (just after her cat adorably interrupted her Zoom testimony). Wilson is a veteran of the FTC, and at the American Bar Association a few weeks ago, she gave an angry speech about the new anti-monopolists Khan represents:

They’ve declared that everything I witnessed was a failure – a 40- year failed experiment. The Clinton administration, with Anne Bingaman, Joel Klein, Doug Melamed, and Bob Pitofsky – all failures. The Obama administration, with Christine Varney, Bill Baer, Jon Leibowitz, and Edith Ramirez, failures all. My mentor Jim Rill, who rewrote the merger guidelines and sparked the creation of the International Competition Network, is a failure in their eyes. I disagree. It is the new path that is likely to fail.

Wilson pined wistfully for the days that mergers went through without controversy. “I watched the friendship of Democrat Robert Pitofsky and Republican Timothy J. Muris,” she said, contrasting that with the ostensibly brutal and partisan approach of Khan.

Wilson has even alleged active malfeasance, publicly claiming that Khan was hiding requests for documents about merging parties.

Wilson asserted she had to get such documents from those attempting to merge, oblivious to what such a chummy relationship to potential defendants implied. As it turns out, Wilson’s implication was deceptive, she just hadn’t had her email responded to in a few days. A Democratic commissioner, Rohit Chopra, noted that he was routinely denied second requests by the Trump FTC Chair, and all of it got ironed out. But Wilson’s goal is to attach the word ‘controversial’ to Khan’s name in the press and at the commission.

Jim Jordan and Other Friends of Eric

Wilson is not important in and of herself, but she is supported by a political coalition in Congress that very much does matter. It spans both parties, and I’ve given it the name “Friends of Eric,” after Google ex-CEO Eric Schmidt, who is a prime actor behind the scenes in terms of supporting concentrated corporate power.

The Friends of Eric coalition was on full display during the hearing on the big tech antitrust bills. California Democrats like Zoe Lofgren and Republican Judiciary Committee Chair Jim Jordan - a traditional libertarian widely respected by conservatives - worked together to try and undermine stronger antitrust legislation.

Jordan is a savvy politician, and his goal is to hold together the corporate and social conservative coalition that has animated Republican politics since the 1980s. Yet this is increasingly difficult in a Republican Party that is deeply angry with dominant firms like Google, Facebook and Amazon. Last year, Tucker Carlson, in an otherwise friendly interview, grilled Jordan on taking donations from Google, and asked why there has been no policy action. There’s increasing pressure on Republican leaders to do something about big tech. Jordan’s dilemma became clear back in March, when he asked Noah Phillips what to do about big tech censorship of conservatives.

Jordan asked, “If we're not going to use antitrust to deal with censorship and you are reluctant to talk about Section 230, what's the answer?”

Phillips responded, "I'm afraid I don't have a good answer."

Jordan, like Phillips, is a libertarian, and he does not believe in using government power to structure markets. But Republicans are increasingly demanding he do just that. The easiest thing to do when your ideology breaks down like this is partisan distraction, and that’s what he’s doing.

Over the past five months, Jordan has run a successful campaign in the Republican House against Khan, framing her as a left-wing authoritarian, interested not in reducing the power of dominant firms but in weaponizing that monopoly power to pursue left-wing goals on social issues. She is, according to Jordan, “radical and partisan,” and has “abandoned long-standing bipartisan practices and made it clear she will use the FTC to advance President Biden’s agenda in the name of economic ‘inequality’ and socialism.”

Jordan’s real fight is not with Khan, but with the populist faction in the GOP that does actually want to do something about big tech. His battle during the antitrust hearings was less with Democrats than with fellow Republican Ken Buck and Matt Gaetz, both of whom actually wanted to pass stronger antitrust laws. But since she is a Democrat in the Biden administration, she is easy for Jordan to turn into a villain. So he has turned her into an issue in a fight over which faction of conservatives governs when the Republicans next take power.

And that gets to the real worry of the corporatist faction, the increasingly influential populist faction on the right. Because at the same time as the pro-monopoly Republican establishment gears up to go after Khan, they are being hollowed out from within their own ranks.

The Conservative Critique of Big Tech

Two weeks ago, roughly at the same time as Wilson’s speech, conservative Republican Senator Tom Cotton joined Democrat Amy Klobuchar in cosponsoring a bill opposing big tech mergers, a bill that Jordan opposed in the House Antitrust Subcommittee. “Tech giants have abused their power, harmed consumers, and censored speech,” Cotton said. “These monopolies should have to prove why buying out their competition won’t make those problems even worse.”

Cotton and Jordan are both important validators in the conservative movement. Members of Congress can’t study every problem, and they usually rely on ideologically sympathetic leaders on abstruse issues like antitrust. Jordan was counting on being such a leader and making monopoly a partisan dispute, which would immediately cause conservatives to oppose antitrust reform. But Cotton is an equally powerful conservative, so to have someone like Cotton come out squarely on the opposite side of Jordan over big tech means that the Republican Party will be fractured.

And Cotton’s not alone. His approach to big tech mirrors that of multiple Senators on the right, including Chuck Grassley, Josh Hawley, Marsha Blackburn, John Kennedy, Lindsay Graham and John Thune. Grassley is working on a non-discrimination bill with Klobuchar. Thune, who is a key Republican Senate leader, has mused on the need to break up Facebook. Some of the most important opinion-leaders on the right, such as Carlson, often blast big tech (leading to a weird moment when left-winger Ilhan Omar and Carlson - who despise one another - agreed on the need to break up dominant firms.) To be clear, the conservative case against dominant tech firms isn’t the same as the liberal case. Both groups, however, share a skepticism of concentrated power, which is why the antitrust bills in the House Judiciary went through with votes from both parties, and why Khan and Kanter got Republican votes for their confirmations.

Behind these changes on the right are a fracturing of the corporate coalition itself. Epic Games and Apple/Google are fighting over the app store, as are Roku, Match Group, and Tile. Visa and Amazon are tussling, and small and medium sized businesses are freaking out about dominant market power across the economy in everything from pharmacies to shipping. A bill to strengthen antitrust against ocean carriers, for instance, has dozens of large trade associations in support, and the cattle ranchers are now at war with meatpackers.

Indeed, in tandem with the corporate civil war, conservative philosophical shifts are expanding beyond big tech; House Republicans last week hosted an important forum showing malfeasances among dominant chain stores like CVS, with conservative members angrily noting that vertical integration harms local pharmacies.

The fight over the nature of corporate power is even penetrating heart of the conservative legal movement. Conservative Senator Josh Hawley has been targeting the decades old coalition between social conservatives and corporatists, which has been so solid since the early 1980s that it doesn’t even seem like it can be pulled apart. But that’s what’s happening. Hawley’s influence directly led Clarence Thomas to muse skeptically about Google’s monopoly power. And a week ago, the Federalist Society, which dominates conservative legal thinking, had at their national convention a debate in which the topic was “RESOLVED: Concentrated corporate power is a greater threat to individual freedom than government power.”

Ashley Keller, the lawyer hired by the conservative Texas Attorney General to take on Google, argued in the affirmative, going after the Chamber of Commerce in particular. “Defenders of freedom must face reality,” he said. “The Chamber of Commerce is not our friend. The C-suite grandees who finance it are not our friends either. They were erstwhile allies of convenience — and they are now the enemies of a freedom-loving people.”

Keller called for more aggressive actions on antitrust, and for reexamining the consumer welfare standard that is the bedrock for anti-monopoly policy. And this was on the main stage of the most important conservative event for conservative judges to consider debates on core legal questions.

Most liberals have a hard time imagining or believing that these debates are done in good faith or are meaningful, but that is because conservatives oppose concentrated corporate power for different reasons. To social conservatives, the belief is that dominant firms are attacking their social hierarchy - the church, the community, the family - the way that government used to, and may even be fusing with the government to do so.

Regardless, what matters here is that there’s a shift happening in the conservative world, the beginnings of an unpredictable transition.

Does Any of This Matter?

Earlier this month, the Democrats got blasted in an off-year election in Virginia, and the polling looks terrible for them in upcoming midterms. That means that in 2022, it’s likely that the Republicans will win the majority in both the House and the Senate.

Republicans agree that they hate Biden, but in terms of substantive content, there will be a battle over the agenda, especially when it comes to corporate power. One likely possibility is that Jim Jordan and Kevin McCarthy will block any changes to antitrust law, and will try to torture Khan with oversight and subpoenas. In this scenario, the U.S. Chamber and big tech will be in the pole position, with a bevy of legal assaults on the FTC and Department of Justice Antitrust enforcers given support by Republicans. Christine Wilson would be riding high, expecting to be the next FTC Chair come 2025.

Indeed, that would be exactly what would happen if this were the 1990s or early 2000s, and the conservative corporate coalition were solid and coherent. But it’s not. The Republican Party is changing rapidly, as is the politics of the business world itself. And that makes the politics here much less predictable than one would expect. Jordan, Lee, Phillips and Wilson are only able to act aggressively against Khan because Republican voters don’t know that they are being supportive of big tech in the process.

I’m not entirely sure it’s possible to overcome the partisan divide when it comes to market power, but Khan did get 16 Republican Senate votes in her confirmation, and Antitrust Assistant Attorney General Jonathan Kanter just got a similar number. So we’ll see.

In the meantime, Khan will continue to wield the authority of the FTC to shrink the power of dominant firms. And the Chamber will sue at every step.


Thanks for reading.

And please send me tips on weird monopolies, stories I’ve missed, or comments by clicking on the title of this newsletter. And if you liked this issue of BIG, you can sign up here for more issues, a newsletter on how to restore fair commerce, innovation and democracy. And consider becoming a paying subscriber to support this work, or if you are a paying subscriber, giving a gift subscription to a friend, colleague, or family member.

cheers,

Matt Stoller

P.S. I got this note from a subscriber on how Salesforce is using its market power to force users to install spyware on corporate users. I hate this kind of nonsense.

Very exciting to see a little progress in US lawmaking thanks in part to your work.  I look forward to being able to simply file antitrust "bugs" with a regulator and getting them fixed in weeks or less.  Today's bug:

Summary: Salesforce makes it inconvenient to log in, unless you switch to the Salesforce Authenticator app.

You may be familiar with 2FA or MFA: (two or) multi-factor authentication.  In order to log in to a service securely, you provide your username, your password, and something else, like a USB security fob, or the code from a text message, or from an app on your phone.  There's a Google Authenticator app; there are similar apps from other companies.  They are interoperable because the way the keys work (TOTP, technically) is standard, so you can use, for example, Authy to hold your Google keys and your Facebook keys.

Most services ask for your key intermittently, such as when you log in from a new computer.  Salesforce (and its subsidiary, Heroku), require MFA every login, i.e., every day.  Heroku is one of the main ways people manage Amazon Web Services, and AWS is the dominant player in online hosting (aka cloud services).  Salesforce's login policy for MFA is:

How frequently must users provide a verification method when logging in directly to Salesforce products?

If you’re using Salesforce's MFA functionality, users must respond to an MFA challenge each time they log in to a Salesforce product. This applies to all logins, including those due to inactivity and expired sessions. The frequency of MFA challenges can’t be modified.

But:

To reduce friction for users, we recommend using Salesforce Authenticator. The app can automate the extra authentication step when a user works from a trusted place, like the office or home

and

Automated verification works best when Salesforce Authenticator always has access to your precise location and is allowed to run in the background.

A happy subscriber,

J

Salesforce tends to escape scrutiny over antitrust, though the Department of Justice did investigate its takeover of Slack earlier this year. I wrote about that merger in December of 2020, noting that Salesforce is a classic roll-up in the software industry. In this case, the product at issue, Heroku was developed by an independent firm that was bought by Salesforce in 2010. Now Salesforce is leveraging its market power by tying its security product to Heroku, and ensuring it can track everything about its users in the process. Wheeee!