New legislation is key to FTC overhaul and take down of Big Tech

President Joseph Biden’s Administration is undertaking the most sweeping transformation of U.S. competition policy since Ronald Reagan became President in 1981.1 In July 2021, in remarks accompanying the issuance of an Executive Order on Promoting Competition Policy in the American Economy,2 President Biden presented his rationale for far-reaching change:

[O]ver time, we’ve lost the fundamental American idea that true capitalism depends on fair and open competition. Forty years ago, we chose the wrong path, in my view, following the misguided philosophy of people like Robert Bork and pulled back on enforcing laws to promote competition. We’re now forty years into the experiment of letting giant corporations accumulate more and more power. And where—what have we gotten from it? Less growth, weakened investment, fewer small businesses. Too many Americans who feel left behind. Too many people who are poorer than their parents. I believe the experiment failed. We have to get back to an economy that grows from the bottom up and the middle out.3 President Biden committed his administration to employ a “whole of government” competition policy program that, among other measures, would apply existing antitrust tools more aggressively to control mergers and dominant firm conduct and enact new legislation to regulate Big Tech.4

President Biden’s appointments to key policy roles—Lina Khan to chair the Federal Trade Commission (FTC), Jonathan Kanter to lead the Antitrust Division of the Department of Justice (DOJ), and Tim Wu to serve as advisor for competition policy on the National Economic Council—underscored his commitment to redirect antitrust policy.5 The Biden program is a triumph for an influential community of commentators who, since the early 2000s, have advocated the transformation of U.S. competition policy.6 Sometimes called “neo-Brandeisians,” this community has promoted a “root and branch policy reconstruction” premised on restoring the egalitarian goals framework that anchored U.S. doctrine and policy in earlier times, especially from the late 1930s through the early 1970s.7 Some Biden appointees (e.g., Khan and Wu) are major architects of the transformation movement’s philosophy, 8 and others (e.g., Kanter) have embraced it with enthusiasm.9 Not only have the transformationalists gained major policy roles in the Biden Administration, they also have spurred the development of legislative proposals to regulate large information services platforms and bolster antitrust enforcement.10 The transformation movement has achieved considerable success in reshaping the policy landscape—perhaps faster than the movement’s leading figures ever imagined possible. The transformationalists have changed the policy debate and achieved power by circumventing a seemingly well-established orthodoxy and formidable institutions that entrenched the orthodoxy.11 They have inspired scholars to produce a large, new body of commentary that supports the transformation cause.12 These are extraordinary accomplishments regardless of whether President Biden and his appointees realize their vision of transformative policy change. As an exercise in effective policy advocacy, the transformation movement will command close study and inspire emulation for years to come.

Though remarkable, the accomplishments sketched above are only the first steps in a long, arduous journey. The transformationalists seek not simply to change the conversation about policy but to reshape policy itself. Their success depends heavily on their skill in overcoming a host of policy implementation challenges identified in a public administration literature developed since the early 1970s by scholars associated with Harvard University’s Kennedy School of Government.13 At a high level, good policy implementation requires mastery of what Professor Malcolm Sparrow has called “the regulatory craft”—a host of management techniques that enable agency leaders to translate broad concepts into effective programs.14 Effectiveness hinges on the ability of policy entrepreneurs to make their reforms “stick” to foster durable policy change.15 In their formative volume on the use of history by policymakers, Professors Richard Neustadt and Ernest May conclude that effective management of public institutions requires “canny judgments about feasibility—about doability—of contemplated courses of action.”16 Grand policy aspirations wither without effective implementation strategies and stand little chance of traversing the treacherous terrain “between the preferred solution and actual performance of government.”17

Little of what the transformationalists had done before ascending to power in 2021 had prepared them for the implementation tasks necessary for accomplishing sweeping, durable change. They have learned quickly that there is a world of difference between advocating for dramatic reforms and accomplishing them in practice. This Article takes stock of the reform measures to date and discusses the policy implementation obstacles that now stand between the transformationalists and the realization of a lasting redirection of competition policy. The Article develops themes addressed in an earlier, tentative treatment of the subject one year into the Biden administration.18 Several perspectives guide the Article. Many observations draw upon earlier research relating to antitrust policy implementation, including co-authored papers with Professor David Hyman,19 Professor Alison Jones,20 and Marc Winerman.21 The Article also considers experience with two previous major efforts to transform the U.S. competition policy system: the makeover of the FTC in the late 1960s and in the 1970s and the Reagan Administration’s antitrust program in the 1980s.22 Each episode involved attempts to make sweeping changes to the substance and institutional arrangements of the U.S. antitrust system.

I also address the issue of implementation as a former government official with firsthand exposure to the conditions that affect policy change. I was a staff attorney at the FTC from September 1979 through August 1983 and witnessed the tumultuous transition between the Carter and Reagan Administrations. I was the FTC’s General Counsel from 2001 through 2004, was a member of the Commission from 2006 to 2011 and chaired the agency from March 2008 to March 2009. From April 2014 through March 2022, I was a Non-Executive Director on the board of the United Kingdom’s Competition and Markets Authority (CMA). I do not speak for the CMA or the FTC, but my public sector experiences inform the discussion that follows. My time in senior leadership roles at the FTC falls within the period that President

Biden and many transformationalists depict as an era of unrelieved policy failure.23 To my mind, the suggestion that U.S. competition policy has been a wasteland since the early 1980s is manifestly wrong.24 My aim here is not to debate the performance of the U.S. competition regime, although I discuss how the transformationalists’ catastrophe narrative impedes their efforts to wield power effectively. Among other consequences, the catastrophe narrative undermines the morale of DOJ and FTC professional staff whose commitment is essential to the transformation program’s success, and it obscures how agency programs undertaken from the late 1970s through 2020 offer valuable lessons about how to carry out the transformation program.

The Article is organized as follows. It first describes the measures a presidential administration can take to carry out an enduring policy transformation. The Article then discusses obstacles that stand in the path of dramatic reforms. The Article concludes with observations about the prospects of success for the Biden administration’s transformation program.

I. MEANS OF COMPETITION POLICY TRANSFORMATION

A presidential administration and its appointees can use varied approaches to achieve a lasting regulatory policy transformation.25 Each of the main devices are sketched below. Statutory Framework. Perhaps the most important way to accomplish an enduring regulatory policy transformation is to enact legislation that embeds sweeping changes into the law. This is a major aim of legislative proposals to establish a new regulatory framework for Big Tech and to change the standards governing the analysis of mergers and dominant firm behavior.26