Antitrust momentum will continue to grow and strengthen FTC/DOJ campaigns

‘Nearly all key decisions that reshaped antitrust policy were made by regulators and judges with relatively little democratic accountability,’ conclude Filippo Lancieri, Eric A Posner, and Luigi Zingales in a study of the Chicago School’s takeover of antitrust.27 Sidestepping public debate was crucial to the project’s success. Big business and its allies knew that they could not win an open debate in Congress to gut the statutes, hence their clandestine approach, which included issuing new merger guidelines in 1982 that effectively rewrote the law.28 This covert strategy was made easier by two developments. One was that, after decades of effective enforcement, Americans had stopped paying attention to monopoly and turned to other issues.29 The second was that, by the 1980s, the Democratic Party had abandoned its commitment to small business, which had been a key part of the party’s coalition since the New Deal.30 This left a crucial constituency without a political home from which to organize a defence of America’s anti-monopoly policies.

Monopoly has now returned as a live issue, and small businesses and workers have taken centre stage. Since 2019, Congressional committees have held numerous hearings on monopoly power featuring testimony from, among others, a grocer, poultry farmer, wholesaler, pharmacist, singer–songwriter, concert promoter, app developer, warehouse worker, and delivery driver.31 After one electrifying hearing in 2020, when the House Judiciary Committee compelled Jeff Bezos, then CEO of Amazon, to respond to statements from small businesses that had been bullied by Amazon,32 a business owner in Michigan emailed me to say that the hearing brought tears to his eyes. ‘It was so long awaited to just feel even a little bit like the playing field would become even,’ he wrote.

Many of these stakeholders have a new understanding of antitrust and the potential of the agencies to rectify the market power problems they face. Lina Khan has furthered this sense of expectation and accountability by encouraging the public to lay claim to the FTC, to see it as a watchdog for ‘consumers, workers, and honest businesses’.33 In one of her most important moves, she opened commission meetings to the public and included time for comments, a sharp break from past practice when votes were taken behind closed doors and regular people were never heard from.34 Similarly, Kanter has championed the idea that the agencies should use ‘the language of the people’ and vowed that the forthcoming merger guidelines would do so. Dispensing with technical language, he has said, will ensure that Americans can engage in ‘critical discourse about how their economy is structured’.35

This genie is not going back in the bottle. Strengthened antitrust has become part of the policy agenda of business groups, labour unions, consumer organizations, and more. With roots in both blue and red America, these stakeholders are one reason that efforts to discredit Khan by big business interests have thus far failed to gain much traction.36 Members of Congress are hearing from grocers, pharmacists, and others in their districts who give her rave reviews. Looking ahead, this democratization of antitrust will likely help sustain the path of reform. And it could even begin to rebuild Americans’ lagging faith in government by demonstrating an approach to policymaking that’s responsive to people, rather than dominant corporations.