President Joe Biden is elating progressive Democrats by filling two key positions with critics of the tech industry — a pair of legal scholars that Republicans have long derided as the founders of a “hipster antitrust” movement.
But some opponents of the big tech companies are prepared to be disappointed by Biden’s next moves, when he chooses the most powerful players in his antitrust orbit.
Biden’s expected decision to nominate Lina Khan for the Federal Trade Commission and his hiring of Tim Wu for a White House economic post leave some of his administration’s most crucial tech and antitrust posts still unfilled — including the assistant attorney general who would lead the Justice Department’s enforcement actions against companies like Google. The president also has yet to fill a second FTC slot and decide who will head the agency, which for now is split between supporters and opponents of stepped-up antitrust action.
“Who is going to be chair … that’s going to influence a lot of what the FTC is able to do,” said Stacy Mitchell, an Amazon critic and co-director of the Institute for Local Self-Reliance, a nonprofit advocacy group that promotes small business.
POLITICO first reported Tuesday that Biden plans to nominate Khan for the first FTC slot, and had earlier reported that Wu is joining the White House National Economic Council. The two Columbia University scholars have made their names with critiques of the big tech companies, and Khan served as an aide during a 16-month House Judiciary antitrust probe that recommended tougher scrutiny of companies like Amazon, Apple, Google and Facebook.
But Khan will be just one vote on the five-person commission, and Wu will have less direct power at the White House than he would have had in another post, such as FTC chair. So selecting them for these jobs could end up neutralizing their impact, one Republican antitrust lawyer said Tuesday.
If you oppose dramatic changes to antitrust law, “that’s exactly where you want them,” said the lawyer, who supports stronger action against the tech platforms. The person asked not to be named to speak candidly.
Still, the news that Biden was tapping Wu and Khan drew immediate praise from Democrats on Capitol Hill, where the party’s affections for Silicon Valley have taken a sharp decline since the era when Biden was Barack Obama’s vice president.
Wu’s appointment is proof that “this administration is serious about promoting competition,” said Sen. Amy Klobuchar (D-Minn.), who helms the Senate Judiciary antitrust panel. And choosing Khan for the FTC is “a major victory for locally-owned businesses, workers, and everyone who has been negatively affected by the dominance of Big Tech,” said Rep. David Cicilline (D-R.I.), who chairs the House Judiciary antitrust panel and is Khan’s former boss.
Some Republicans immediately counterattacked. Sen. Mike Lee of Utah, the top GOP member on the Senate antitrust panel, called Khan’s potential nomination “deeply concerning,” citing her “lack of experience” and views he characterized as “wildly out of step.”
“Nominating Ms. Khan would signal that President Biden intends to put ideology and politics ahead of competent antitrust enforcement,” Lee said.
Meanwhile, some antitrust advocates welcomed the news but were keeping their enthusiasm in check.
Both Mitchell and Jeff Chester, executive director of the digital rights nonprofit Center for Digital Democracy, acknowledged that Biden’s team probably let the news about Khan and Wu get out first to appease progressives.
Chester, who has advocated for the FTC to take stronger positions on digital privacy since the 1990s, said he was thrilled with the pick nonetheless. He said it demonstrates that the FTC will be moving away from what he called the agency’s “don’t ask, don’t tell” stance on the digital marketplace.
If confirmed, Khan would join acting FTC Chair Rebecca Kelly Slaughter as the commission’s two Democrats, alongside two Republicans who dissented last year in the agency’s decision to file an antitrust suit against Facebook. That leaves Biden with a third Democratic seat to fill, likely to be the commission’s swing vote in future legal action against tech.
“The third person might be more conservative but I think Lina is going to help set a path,” said Chester. “Is she superwoman? I don’t think so. … It’s a very good day if you care about privacy, consumer rights and competitive markets.”
The Obama administration responded to the 2008 financial crash by putting “a Band-Aid on things” instead of addressing the power of financial markets and wealth inequalities, said Mitchell, echoing the view of many progressives. The pandemic has again raised those same deep structural problems with the U.S. economy, this time with the big tech players instead of big banks, she said.
“There’s widespread recognition that the Obama administration ignored monopoly power and the deep structural problems in our economy to our peril,” Mitchell said. “What we’ve been seeing from the Biden administration is they get that: They cannot repeat the Obama playbook. That would be a disaster for the country and democracy.”
“There’s a momentum building on this and nominating Lina Khan only fuels that momentum,” she added.
The White House is expected to nominate Khan to fill the spot left open when President Donald Trump’s FTC chair, Republican Joseph Simons, stepped down in January. That will leave the agency split 2-2 once Democratic Commissioner Rohit Chopra is confirmed to head the Consumer Financial Protection Bureau. The White House intends to move forward with Khan’s nomination by itself, deferring the question of who should chair the agency and replace Chopra, two people with knowledge of the plans said.
People under consideration for the other FTC seat include Alvaro Bedoya, the head of the Center on Privacy & Technology at Georgetown Law and a former staffer for former Sen. Al Franken (D-Minn.), and Michael Kades, a former Klobuchar aide who heads competition policy at the left-leaning think tank Washington Center for Equitable Growth. The Capitol Forum reported last week that D.C. Attorney General Karl Racine is also under consideration for FTC chair. All three are viewed as likely to be aggressive on tech.
Another key post for Biden to fill is the role of assistant attorney general for antitrust, who would most likely play a key role in cases such as the major suit that Trump’s Justice Department filed against Google in October. People under consideration for that job include Jonathan Sallet, a former Obama-era antitrust enforcer now working for Colorado’s attorney general on a multistate antitrust suit against Google; Jonathan Kanter, a lawyer who has represented dozens of Google critics; and Terrell McSweeny, a former FTC commissioner and longtime Biden aide viewed as more centrist on tech issues.
While Khan, 32, would be the youngest ever FTC commissioner, Rick Rule, President Ronald Reagan’s assistant attorney general for antitrust, was only 31 when he took over the job and dramatically changed the Justice Department’s approach to a more conservative direction. Former FTC Commissioner Josh Wright and current Commissioner Noah Phillips, both Republicans, were also in their 30s when they joined the agency.
“If you think they’ve been doing it wrong for 40 years, decades of experience are a hindrance to doing it differently,” an individual who previously worked with Khan said.