President Biden’s announcement to nominate long-time Big Tech adversary Jonathan Kanter to lead the Department of Justice Antitrust Division follows on the heels of Biden’s recent Executive Order on “Promoting Competition in the American Economy,” which outlined the administration’s policy plans on antitrust enforcement. If confirmed, Kanter would join fellow Big Tech opponents and progressive luminaries Lina Khan and Tim Wu. But Kanter’s ambitious antitrust approach presents a very real consequence for consumers and the market: his ability to hold up mergers.
Last year, during a Senate hearing, Kanter said of antitrust laws, “We have laws. Those laws are in place. Let’s enforce them. Let’s enforce them regularly with vigor, with passion, creativity, and meaning.”
Kanter has a history of litigating lawsuits against Big Tech companies, including representing complainants against Google for anticompetitive behavior. As deputy attorney general, Kanter would have the ability to file lawsuits against mergers at will. This power falls neatly in line with the Biden administration’s wishes to begin providing “greater scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by ‘free’ products, and the effect on user privacy.”
However, Kanter might go further. In 2018, he pushed the idea that legislators should “vigorously explore new questions in antitrust to ensure the U.S. antitrust law remains relevant to the realities of today’s economy and society.” This suggests Kanter may be interested in not just more vigorous enforcement of today’s antitrust laws, but in expanding existing boundaries in antitrust enforcement. But the process of creating new antitrust law can be long and politically challenging. It is easier to cut corners by applying existing laws where they are not applicable. It is one thing to advocate for the expansion of antitrust law and another to say the law says something it doesn’t. The latter causes a significant amount of harm to businesses and consumers.
Changes to law, including antitrust law, should be made by a democratically elected Congress, not outsourced to unelected federal lawyers and bureaucrats.