Biden Antitrust: The Paradox of the New Antitrust Populism

• Aurelien Portuese, “Biden Antitrust: The Paradox of the New Antitrust Populism,” George Mason Law Review, 2022, available via George Mason Law Review.

Introduction

The 2020 election placed antitrust at the center of the presidential campaign. The last time antitrust was central to presidential debate hacks back to 1912 leading in 1914 to the passing of two major antitrust laws—the Federal Trade Commission Act and the Clayton Act. Would Biden’s term lead to long-lasting changes? Many have speculated that “Biden antitrust”—or the antitrust record under the Biden Administration—would be torn between President Biden’s inclination to remain a moderate democrat and the Progressives’ antitrust populism. The populist approach to antitrust advocated by the “New Brandeis Movement” castigates all forms of market power and aims at deconcentrating the economy by populating the market with small and medium-sized companies irrespective of the consumer welfare standard and of innovation considerations.

Contrary to the expectation that Biden antitrust would somehow choose “a middle way” between antitrust populism and antitrust traditionalism, the first year of the Biden administration has unambiguously embraced antitrust populism. Most notably, President Biden issued in July 2021 an Executive Order on Competition which generally targets large companies irrespective of their merits. President Biden appointed to key offices the heroes of the “New Brandeis Movement,” created a White House Competition Council, sued major companies and unleashed a chilling effect on all mergers, called for new rulemaking authority, embraced European-style regulations, and supported numerous antitrust bills aimed at revamping antitrust principles. How could a radical movement from the Progressives—the “New Brandeis School”—become the Democrats’ mainstream view, be endorsed by an allegedly moderate President9, and be cheered by populist Republicans? The answer undoubtedly lies in the working of politics: Presidential candidate Senator Elizabeth Warren (D-MA) personified the radical stance of populist antitrust in 2019 and was able to leverage her political power when she finally endorsed the future president Joe Biden. Indeed, Senator Warren was directly briefed by the leaders of the Neo-Brandeis Movement when she considered launching a 2016 bid for president:

“In early 2016, one of Warren’s advisers reached out to a Yale law student named Lina Khan…In Warren, Khan and the head of Open Markets, Barry Lynn, found a high-profile figure in Washington who was willing to listen and who could draw attention to the cause. They met for dinner…They suggest several anti-monopoly tools, including breaking up some of these giant companies.”

“Setting the Democratic field’s hostile tone on tech,” Senator Warren’s populist stance on antitrust, together with Senator Bernie Sanders (I-Vt.)’s views proved to be extremely influential in the definitive approach to antitrust by the Democratic candidate. Indeed, as Senator Warren endorsed Joe Biden, the latter endorsed the former’s populist stance on antitrust, even though this amounted to go against the Obama era on antitrust when Joe Biden was Vice-President. From being the “quietest” of the Democratic candidates on antitrust, President Biden has, under the influence of Senator Warren’s and friends’ stance of populist antitrust, turned into the kind of trust-busting president that Progressives have long idealized with Theodore Roosevelt–although this venerated president among Progressives does not fit with the mystified representation of Teddy Roosevelt as a trust-buster.

In playing “monopoly games,” President Biden rolled the dice of antitrust between a radical approach and a moderate approach: The dice have spoken and Biden antitrust is nothing but the Progressives’ agenda to endorse a populist “big is bad” stance and advocating for firms to be trimmed down so that none can ever exercise market power, even if such exercise benefit consumers and promote innovation. This first year of Biden antitrust is a year of antitrust populism, not a year of antitrust stability. We can characterize more fundamentally this year with three words: assumptions, actions, and disruption.