Two Conferences in 2023 and the Future of the Antimonopoly Movement
The Open Markets Institute (OMI) and the American Economic Liberties Project (AELP), two of the leading progressive antimonopoly think tanks in the United States, each held widely attended conferences in February and May of this year. I believe both conferences indicate that we are experiencing a watershed moment for the entire antimonopoly movement. In this post, I want to explain the significance of both conferences and what they mean for the future of the antimonopoly movement, and the challenges that must be confronted if the movement is going to continue to grow.
Origins of a Movement
2010 was a very rough year for progressives. While the public was still enduring the sluggish recovery from the calamitous 2008 financial crisis, that summer, the Supreme Court decided one of its most consequential and arguably worst decisions ever, Citizens United v. FEC. The high court’s decision transformed the First Amendment into a nearly impenetrable legal shield by preventing state and federal laws from setting limits on political spending from corporations. In other words, the Court equated money to speech, and thus political expenditures became completely protected by the U.S. Constitution. Corporations are now effectively free to use unlimited funds to shape our elections and political discourse. The decision ushered in a wave of dark money into our elections and epitomized the Supreme Court’s multi-century embellishment of corporations as the prime vehicles for Wall Street financiers and corporate oligarchs, like the Koch Brothers, to control the economy and transform our political system into an oligarchy.
Later in November, in large part due to his exceptionally lackluster legislative response to the 2008 financial crisis, President Obama suffered the most significant political defeat of his administration when Republicans won back control of the House of Representatives. The situation would ultimately break the practically once-in-a-generation opportunity after the 2008 elections to leverage the largest legislative majority since the 1970s to enact much-needed economic and democratic reforms. The resulting power shift in the House (and eventually the Senate in 2014) would stymie the rest of Obama’s time in office and arguably lead to Donald Trump’s future presidency. Progressives were not just at their lowest point, the antimonopoly movement was nearly non-existent.
At the same time, markets continued to consolidate across the economy, in particular the technology sector. Tech giants like Google and Facebook were exponentially growing, becoming embedded into every aspect of our daily routine and becoming mystified by the media as connectors of our new modern digital world. This description is best encapsulated with the 2010 film The Social Network, which showcases a dramatized version of the origins of the social media conglomerate Facebook (now called Meta). Throughout the rest of the decade, the tech giants continued to tighten their stranglehold over the internet without any real criticism, in particular by sucking out advertising from journalism outlets, their prime revenue stream, and by acquiring companies with near-universal approval.
Antitrust enforcement itself was also coming to some stark realities. Although President Obama promised to make antitrust enforcement a critical aspect of his administration, he failed and, in many aspects, moved antitrust further to the ideological right. For example, in 2010, Obama’s Department of Justice released an updated version of the merger guidelines, which detail how the agency will enforce Section 7 of the Clayton Act. The 2010 Guidelines further entrenched conservative ideology and weakened merger enforcement. In describing the 2010 merger guidelines, two lawyers noted that “The clearest winners in the 2010 Guidelines are merger economists, whose centrality to merger advocacy, already obvious, has been resoundingly confirmed.” Only late into his second term did President Obama showcase some semblance of interest, with officials within his administration publishing critical reports detailing the consequences of concentrated markets and Obama signing an executive order.
Obama’s administration, for all its promise, was business-as-usual for antitrust enforcement. Rather than invigorating it as a source of democratic control over our economy, antitrust remained mostly a technocratic enterprise dominated by members of the defense bar, reactionary judges, and conservative/Chicago School economists. Professor Daniel Crane best encapsulated the state of antitrust thinking at the time with the following passage from a 2008 article:
[Antitrust law] has become increasingly separated from popular politics, insulated from direct democratic pressures, delegated to industrial policy specialists, and compartmentalized as a regulatory discipline. Presidents no longer pay attention, the major political parties’ platforms no longer mention it, and the public does not follow it.
Another article by Harry First and Spencer Webber Waller from 2013 makes a similar observation. They stated:
“[Antitrust enforcement is now] unaccountable and [consists of] nontransparent technocratic institutions far removed from democratic (or national) control.”
But oddly, 2010 was also a watershed year for the progressive and antimonopoly movement. In my opinion, two events, in particular, were essential to the modern movement. In December 2009, Barry C. Lynn, now the current executive director of the Open Markets Institute, published Cornered: The New Monopoly Capitalism and the Economics of Destruction. His book is widely considered a seminal text and, for many (including myself), sparked interest in antimonopoly and antitrust law for many advocates. Among other things, Lynn spent 2010 spent marketing the book and long with people like Albert (Bert) Foer, Matt Stoller, Phillip Longman, Lina Khan (then a budding journalist), Stacy Mitchell, and Sandeep Vaheesan introduced many politicians, political insiders, and the public to the idea that the American economy was an illusion of opportunity - where nearly every industry was in the hands of few dominant corporations and that antitrust law was the primary political tool to solve the problem as well as revitalize our local communicates, promote economic democracy, and enhance worker power.
Second, in December 2010, Bernie Sanders, a then relatively unknown U.S. Senator from Vermont, gave a nearly 9-hour Senate floor filibuster speech against concentrated corporate power, oligarchy, and greed. Besides thrusting Sanders into the national limelight and solidifying his future role as a leader of progressive politics, his speech - particularly against the backdrop of the Occupy Wall Street protests taking place around the U.S. at the time - made attacks on concentrated corporate power much more visible and viable as a political position and a narrative worth espousing to obtain political recognition and identity.
2010 is when progressive politics hit their lowest low, but it was also a time of exceptional neurological fertility where many were willing to accept new ideas for how to fight back. Concentrated corporate power became the target, and a real movement was born.
The Growing Antimonopoly Movement
Today, it is clear we are a long way from the near-hopeless days of 2010 and what were then attempts by advocates to create some semblance of pushback against the ever-encroaching success of the political right. A resounding number of organizations have now made antimonopoly and fighting back against concentrated corporate power a core or at least ancillary focus of their overall mission.1 The energy and interest to tackle concentrated corporate power from lawmakers, journalists, advocates, scholars, and ordinary members of the public are unparalleled in recent memory. Marshall Kosloff, current Media Fellow at the Hudson Institute and co-host of The Realignment podcast, aptly described the antimonopoly movement as one of the “center[s] of political realignment” in the United States.
A recent poll from YouGov is quite revealing in this regard. According to a recent survey, “Two-thirds of Americans (66%) support the Federal Trade Commission conducting antitrust probes — such as investigations into price-fixing, monopolizing actions, and predatory pricing — into major companies, including 77% of Democrats, 62% of Republicans, and 56% of Independents.”
Both chambers of Congress continue to show exceptional interest in antimonopoly and have held (and continue to hold) hearings directly addressing issues related to concentrated corporate power and antitrust. Just over the last couple of years, several high-profile CEOs (including the CEOs of Google, Apple, Kroger, and Ticketmaster) have had to appear before Congress and try to convince the public that their control of markets is just and the result of fair conduct. Meanwhile, the more they speak, the clearer it becomes that their control of markets is directly the result of failed antitrust enforcement and the implementation of unfair market practices.
Some other noteworthy congressional hearings include Right to Repair: Legislative and Budgetary Solutions to Unfair Restrictions on Repair or Rebuilding America’s Economic Leadership and Combating Corporate Profiteering. Powerful legislation continues to get proposed. State lawmakers are even charging ahead with antimonopoly proposals of their own. For example, New York State Senator Michael Gianaris proposed the 21st Century Antitrust Act, which would be the first state antitrust law amendment intended to significantly strengthen enforcement. Just this month, Minnesota banned non-compete agreements for workers, liberating them from a coercive contract that lowers their wages and restricts their future employment opportunities. Perhaps most importantly, there is an ever-increasing recognition from advocates and scholars that our economy is not just some natural free market force, but rather a direct construction of public policy. This is best represented by the growth of various Law and Political Economy groups in law schools working to educate the next generation of scholars, advocates, lawmakers, and government officials.
Further embodying this sea change in perspective are two separate day-long conferences hosted in 2023 by the Open Markets Institute and the American Economic Liberties Project. Hundreds of guests attended both conferences, and it was clear there was a deep sense of passion, energy, and hope that antimonopoly is capable of taming corporate power and ameliorating numerous social, political, and economic issues that currently plague our society. The conferences featured leading scholars, advocates, journalists, politicians, and agency officials - including Professor Sabeel Rahman, Professor Tim Wu, Director of the Consumer Financial Protection Bureau Rohit Chopra, Senator Elizabeth Warren, Assistant Attorney General Jonathan Kanter, FTC Chair Lina Khan, and others - to vigorously orate a mission of using antimonopoly law to ensure corporations serve the public interest and to take back control of the economy from the Wall Street financiers and other modern-day corporate robber barons that seek to hoard ever more wealth, opportunity, and power for themselves.
The conferences also prominently featured many of the previously discarded and ignored social aspects of antitrust - including economic and racial justice, labor power and workers, local community development and control, and small businesses. In one segment from the conference hosted by the Open Markets Institute, Rashad Robinson, the current President of Color of Change, detailed how concentrated corporate power is an inseparable plague afflicting people of color in the United States. In a cogent and deeply moving statement, he elaborated that:
Black people have a different relationship to monopoly. In general, what some may see as the good old days of antitrust, were the most monopolistic imaginable for black people. Every industry was a monopoly, a racial monopoly, as was the political system, the legal system, and every other system if monopoly is the concentration of power and decision-making in the hands of a few colluding, people who manipulate the market to their benefit, then there is no better example than the owners, guardians and beneficiaries of structural racism….Monopolies in this country have always used their power to steal from Black people, first and foremost, as laborers, consumers, family and inspire homeowners in every role in every aspect of life. That's one reason monopolies are so dangerous, and it requires a very deep and sustained commitment in order to defeat that level of racial injustice. It requires moving from an academic discussion focused on abstract principles to specific actions, targeting specific fixes that ensure that we can get very specific results in terms of racial justice.
The elevated energy emitted from the audience was persistent during both conferences. It was not just awe-inspiring, but it also made me realize what a privilege it is to be working in this area and fighting for real change.
The Open Markets conference can be watched here. The American Economic Liberties Project conference can be watched here.
Conference Conclusions
Having attended both conferences, there are some intertwined conclusions that can be taken away from them.
Despite some notable missteps, President Biden has gotten the message.
Advocates are exerting real pressure on lawmakers and agency officials.
The foundations for even bolder action have been laid.
Biden’s Failures Need to be Called Out
Since President Biden is already more than halfway through his term, it is clear that he could have acted with much more diligence and extorted more pressure from his bully pulpit. For example, President Biden failed to vigorously advocate and support Gigi Sohn to be a commissioner on the Federal Communications Commission (FCC), which regulates all wired and wireless communications in the United States. Sohn faced vigorous and disgusting attacks on her character. President Biden mostly sat ideally by leaving her nomination to languish in a near-defenseless state. Meanwhile, the FCC, a critical federal agency capable of implementing policies like net neutrality or prohibiting landlords from restricting which internet service providers renters can use, sits deadlocked and unable to use the full range of its congressionally delegated authority. The American Prospect even provided President Biden with a list of 277 “Day One” actions he could unilaterally implement, many of which he has still failed to implement.
Another notable misstep was Biden’s Surface Transportation Board, the agency responsible for regulating the railroads, despite a comprehensive executive order requiring agencies to use the full range of their statutory powers to promote competition, approving the largest rail merger in decades.
In one of the largest airline acquisitions in recent memory, the Department of Transportation (DOT) has refused to use its own independent enforcement authority to block the merger of JetBlue and Spirit Airlines. Instead, while the DOT has denied a request by both airlines to currently operate as a single carrier, the DOT has also decided to wait for the investigation being conducted by the Department of Justice (DOJ) to conclude before using its own authority. Such a decision not only puts more of the onus on the DOJ to litigate the issue, but by taking a wait-and-see approach, the DOT loses the opportunity to test a rarely used administrative power under a favorable administration. In all likelihood, due to the slow nature of antitrust litigation, the DOJ efforts will not conclude until the end of Biden’s first term. This means that should the Democrats lose the White House in 2024, the DOT will likely not have another opportunity to use its robust enforcement powers.
Although President Biden has appointed a noteworthy number of judges to the federal judiciary, many of them lack an understanding of progressive antitrust that is necessary to improve the underlying jurisprudence. In some cases, President Biden’s judicial nominees have values that are quite contrary to the antimonopoly movement and progressive politics more generally. In an era where Congressional stagnation in ineptitude is the stand, packing the courts with the most favorable judges possible should be automatic and at the forefront of a President’s agenda. It is simply not enough that the judges President Biden is appointing are diverse and have general liberal character traits. In a recent article, New York Time journalist Binyamin Appelbaum aptly stated:
Mr. Biden needs to pay attention to economic justice, too. It is a mistake to assume that judges with progressive outlooks on social issues will necessarily favor constraints on corporate power. Some of the most celebrated liberal justices of recent decades, including Thurgood Marshall, Ruth Bader Ginsburg and Stephen Breyer, played key roles in gutting the nation’s antitrust laws. If the Biden administration is serious about checking the power of corporations, it needs to nominate jurists who are intellectually committed to that goal.
The White House has even failed at some of the most basic tasks, which include energetically marketing its policy successes. This is somewhat understandable as marketing successes, particularly when it comes to antimonopoly, is a muscle that has substantially atrophied over the last 50 years but also stems from a somewhat small pile of significant (or more accurately, long-lasting) victories that are capable of outlasting Biden’s term when he inevitably leaves office. Nevertheless, President Biden has clearly signaled his interest in antimonopoly, and there have been several notable accomplishments that are worth praising.
There are Notable Accomplishments Worth Praising and Building on
To start, President Biden has given multiple indications that he wants more antitrust action. In July 2021, President Biden signed a critical executive order on “promoting competition.” While the executive order lacks the essential philosophical sharpness necessary to effectuate the kind of antitrust policy advocates are requesting, the order did jumpstart a whole-of-government approach to implementing progressive antitrust policy. President Biden has also done some critical work to market antitrust policy to the public. In his 2023 State of the Union, Biden called for Congress to "Pass bipartisan legislation to strengthen antitrust enforcement and prevent big online platforms from giving their own products an unfair advantage." This is the first time any U.S. President has mentioned antitrust enforcement since 1979 when Jimmy Carter was in office.
Biden has also appointed several individuals that wave the progressive antimonopoly banner to critical agencies. Some of his appointments include: Lina Khan to the Federal Trade Commission, Jonathan Kanter to the Department of Justice, Rohit Chopra to the Consumer Financial Protection Bureau, Tim Wu to his competition council. Critically, President Biden has also appointed Alvaro Bedoya and reappointed Rebecca Slaughter to the Federal Trade Commission. Both commissioners have been antimonopoly champions on the Federal Trade Commission and have clearly established both their intellectual prowess and commitment to the goals of the antimonopoly movement.
The Federal Trade Commission has proposed a rule to ban non-competes throughout the economy, which will not only liberate workers from their employer and grant them the ability to seek and obtain new employment, but also return potentially $300 billion in wages. The Consumer Financial Protection Bureau has proposed a rule to ban junk fees from financial companies. In 2022, President Biden signed the Ocean Shipping Reform Act, which significantly enhanced the Federal Maritime Commission’s regulatory powers over Ocean Carriers and was also the first law re-regulating an industry since the 1990s and can provide the opportunity to impose much-needed regulation over a highly concentrated industry.
As I explained in a previous publication, under President Biden, the DOJ has engaged in a vigorous campaign of antitrust enforcement to promote labor rights. Specifically, the DOJ has drafted amicus briefs, filed criminal lawsuits, and engaged in enforcement targeting monopolies, such as initiating the single most important monopolization lawsuit in 20 years against Google. The lawsuit against Google is exceptionally important as it not only seeks to break up the company’s digital advertising model, but if the lawsuit is successful, one consequence would be unleashing billions back into journalism outlets, writers, and other internet entities.
What is clear is that these actions, and others, not only have significant potential to restructure the economy but that it is evident the Biden Administration has taken a decisive and long overdue first step toward invigorating antitrust enforcement, which is a much more aggressive approach that breaks away from a restrictive interpretation that has dominated the ideological landscape since the 1970s. Clearly a new ideological and political foundation has been laid. It is now up to the antimonopoly movement to take action to ensure even bolder actions are taken.
The Challenges Ahead
President Biden’s administration is only the start of embedding antimonopoly into our long-term national discourse and public policy. However, there are many challenges ahead that must be directly confronted if the antimonopoly movement is going to continue to grow and advance its policy prescriptions.
First, there is the ever-present and increasing threat of dominant corporations ramping up lobbying spending in efforts to not only crush the budding movement but thwart any hope for much-needed legislative reform. The evidence is staggering at how far corporations are willing to go. In 2022 alone, big tech companies like Apple, Google, Amazon, and Microsoft spent $70 million on lobbying. Given recent growth trends of the antimonopoly movement and increased scrutiny of their business model from all sides of the political spectrum, lobbying dollars are likely to rise significantly in the coming years.
Second, given the current moment, there is a severe shortage of advocates, lawyers, and specialists. A long-lasting movement requires not only millions of ordinary people to join it but also necessitates specialists like lawyers that are able to understand the details to properly wield power to effectuate the goals of the movement and craft precisely written legislation. New talent is also necessary to fill critical positions in government, run for office, or even train the next generation of advocates. Law schools, for example, are failing to hire new faculty specializing in antitrust. In 2022, law schools hired only one professor that specializes in antitrust. Such a circumstance will continue to stifle an already choked supply of new advocates and specialists necessary to continue to advance the antimonopoly movement.
Third, baseless or exceptionally distorted media articles will continue to sow doubt into the public’s mindset and use flagrant exaggerations to undermine current actions by making them seem lawless, reactionary, or uninformed. For example, since June 2021, the Wall Street Journal has published 63 articles seeking to enervate the FTC’s antitrust agenda.
Arguments attacking the new antitrust agenda of the Biden Administration and others relating to “big government” or the threats to your economic liberties because of new regulations are always expected from conservatives. Corporations have peddled these arguments for decades and are not only false but knowingly ignore the fact that government power can distribute wealth and power to ensure prosperity for everyone rather than the Wall Street financiers and CEOs. It is, therefore, essential that advocates and scholars continue to produce accurate scholarship to combat these types of attacks.
Fourth, with the antimonopoly movement gaining ever-increasing momentum, it is vital that advocates set proper expectations. Antimonopoly can solve a lot of problems currently plaguing our society. But is antimonopoly a silver bullet for everything? Certainly not. Problems such as racial justice, climate change, lackluster labor protections, and other issues undermining our democracy are linked with problems associated with concentrated corporate power, but antimonopoly is not sufficient to answer all of the issues embedded within those problems. While antimonopoly advocates should, of course, incorporate members of social and climate justice movements into their fold as well as become members and advocates of those movements, they are also going to have to come to terms with setting clear and realistic expectations and understand that our fight is complimentary, not a substitute to those other advocacy efforts.
Fifth, perhaps most importantly, advocates need to keep exerting as much pressure as possible. Whether that is continuing to publish rigorous scholarship, spreading the message, or holding lawmakers and the President accountable for their decisions. Advocates must keep fighting in order to keep advancing our agenda.
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The antimonopoly movement is nowhere near the victories it seeks. But it is clear that the movement is quickly growing, and real political and legislative victories are afoot. The conferences hosted by OMI and AELP embody the fact that the antimonopoly movement is likely unstoppable and will keep on fighting for change no matter what.
Thanks for reading.
To name a few: the Open Markets Institute, the American Economic Liberties Project, the Roosevelt Institute, the Institute for Local Self-Reliance, and Liberation in a Generation.