In past Tech Policy Press articles and podcast discussions, we’ve discussed a range of issues that arise from the sheer scale of major tech firms, including Amazon, Facebook and Google. We’ve discussed the harms to workers, perverse incentives and anti-competitive behaviors that result from their exploitation of platform economics and network effects at scale.
We’ve also discussed how new thinking on competition and antitrust law is being applied, including most notably at the U.S. Federal Trade Commission under Chair Lina Khan, who is known as an innovative thinker on competition and antitrust law, in no small part due to her work exploring how the rise of the dominant digital platforms revealed shortcomings in the status quo.
In today’s episode of the podcast, we’re going to hear directly from Chair Khan, who was appointed in June 2021, as well as FTC Commissioner Rebecca Kelly Slaughter, who was appointed to a Democratic seat on the Commission in 2018. This isn’t a typical episode- what you’ll hear is audio of a special event hosted on Tuesday, July 19 by the Economic Security Project (ESP) and the Law and Political Economy Project (LPE). These organizations brought together scholars, advocates, and government officials to discuss how new thinking and research seeks to reframe dominant economic paradigms, and why it is so important to redefine and challenge monopolies.
The event, Resourcing a New Paradigm: The Future of Antimonopoly Research, was introduced by Becky Chao, Director of Antimonopoly at the Economic Security Project, and it is her voice you’ll hear first. After remarks from Chair Khan and Commissioner Slaughter, you’ll hear a panel discussion moderated by the Open Markets Institute’s Legal Director, Sandeep Vaheesan. The full complement of speakers includes:
- Lina Khan, Chair, Federal Trade Commission
- Rebecca Kelly Slaughter, Commissioner, Federal Trade Commission
- Elettra Bietti, Joint Postdoctoral Fellow, NYU School of Law and the Digital Life Initiative at Cornell Tech in New York
- Brian Callaci, Chief Economist, Open Markets Institute
- Seeta Peña Gangadharan, Associate Professor in the Department of Media and Communications, London School of Economics and Political Science
- Lenore Palladino, University of Massachusetts Amherst Assistant Professor of Economics and Public Policy
- Becky Chao, Director of Antimonopoly, Economic Security Project
- Amy Kapczynski, Professor of Law and Faculty Director, Global Health Justice Partnership
- Sandeep Vaheesan, Legal Director, Open Markets Institute
By the end of this 90 minutes, you will be up to date on the key ideas, challenges and opportunities ahead for the intellectual project to redefine antimonopoly thinking and law to pursue not just economic, but also social and racial justice.
What follows is a lightly edited transcript.
All right, welcome, and thank you so much for joining us for today’s event resourcing a new paradigm, the future of antimonopoly research co-hosted by Economic Security Project and the Law and Political Economy Project. I’m Becky Chao. I’m the Director of Antimonopoly here at the Economic Security Project. We’re an ideas advocacy organization that advocates for economic justice.
We entered into the monopoly movement out of a belief that the fight to counter concentrated power is critical to advancing the broader world view of how and for whom the economy should work. You’ll hear a little bit more about the law and political economy project when Amy introduces Commissioner Slaughter. This event builds off the investments in academic scholarship that we made at the beginning of this year to support anti-monopoly research. There’s no better time for anti-monopoly scholarship.
The moment we’re in demands deep critical inquiry into the structure of the economy, who it works for, who it’s stacked against and who writes the rules, as well as creative, innovative insights and solutions to build a more equitable democratic, resilient and sustainable economy. Antimonopoly research which gets at the heart of how we structure markets is core to this interdisciplinary project.
At today’s event you’ll hear about how we’re defining the contours of the antimonopoly field and explore the broader transformative goals embedded in it. You’ll learn how antimonopoly fits into a broader vision of a post neo liberal multi racial democracy and what antimonopoly entails, beyond just antitrust and competition policy. Antimonopoly grapples with the central theme of power and raises important questions about the democratic values worth prioritizing in a fair and competitive economy. All our speakers joining us today are leading this work.
And I’m so excited that we’re joined by two esteemed Members of the Federal Trade Commission today, along with some of our academic grantees. Our incredible panel is moderated by the brilliant Sandeep Vaheesan, legal director of the Open Markets Institute.
So without further ado, I have the distinct pleasure of introducing Chair of the Federal Trade Commission Lina Khan to deliver opening remarks. Chair Khan was sworn in on June 15, 2021. Prior to becoming head of the FTC, Chair Khan was an Associate Professor of Law at Columbia Law School. She also previously served as counsel to the US House Judiciary Committee Subcommittee on Antitrust, Commercial and Administrative Law, legal advisor to FTC Commissioner Rohit Chopra, and legal director at the Open Markets Institute.
Chair Khan’s scholarship on antitrust and competition policy has been published in the Columbia Law Review, Harvard Law Review, University of Chicago Law Review and Yale Law Journal. She is a graduate of Williams College and Yale Law School. Chair Khan, thank you so much for joining us today.
Thanks so much, Becky. Good afternoon everybody, so great to be here with you all. Thanks so much for inviting me. It’s such an honor to be here with so many scholars and thinkers whose work I so respect and have learned so much from.
And it’s especially great to be here as the opener for Commissioner Slaughter, who has just been such a terrific partner at the FTC. I so admire the Economic Security Project and the support and leadership that they’ve provided in helping drive forward the antimonopoly movement.
And I was actually a student in Amy Kapczynski’s first law and political economy seminar my 3L year. It’s just been so incredible to see that initial nascent effort to kind of give language and framing to this orientation, to see that evolve into this incredible community and network of scholars and practitioners and policy thinkers who are providing such important intellectual leadership at such a pivotal time.
I think LPE’s clarity of vision in recentering the role of law in shaping markets and economic outcomes and denaturalising what can so often be described as the product of metaphysical forces, rather than concrete legal regimes and specific policy decisions is so, so essential. So thank you so much, both to ESP and LPE for the spaces that you’ve built for these interventions and engagements.
I know it reflects an enormous amount of work by people like Becky and Corinne and Raul and Luke. I’m sure I’m forgetting many, many people but I’m just very grateful for the spaces that you built for this types of engagement. I think the moment that we’re in is a real testament to the power of research and scholarship, in particular, to lead not just to a paradigm shift in thought, but also in practice.
I think we see this in a host of ways. Right now, there are a whole set of antimonopoly policy initiatives underway in Congress and the administration, and at the state and local level. I think, all things considered, we are still fairly early in the implementation and execution phase, but I think the antimonopoly research and scholarship that communities like LPE and ESP have produced and cultivated has laid out a very, very solid foundation.
Being in my current role on the enforcement and policy side of the ledger, I think its even more apparent to me now just how essential the work that you all are doing really is. I think there are a few categories of scholarship that really jumped out, in particular as having played this role to lay out this foundation and chart out a path forward.
So I thought it would just at a high level share what, from my perspective, has really helped do that. So one is scholarship and work that has really helped expose how particular problems have been enabled or overlooked by existing legal regimes. So I’m thinking here of, for example, work by Brian Callaci on how the greater legal tolerance or vertical restraints facilitated the rise of franchising and use the franchising to centralize power and control, while shedding risk and liability.
I know Seeta Gangadharan’s work mapping out how existing policy frameworks have neglected to capture or fully address the harms of digital surveillance has also done this. I think this type of work can be enormously useful, both in surfacing the legal contingency of certain arrangements or problems.
While also signaling a path forward through redressing these blind spots and legal frameworks. I think there’s a second category that has also been enormously useful and that’s really the kind of paradigm shifting work that has really forced us to reckon with what a body of law really stands for.
So I’m thinking here, for example, of Sanjukta Paul’s work re-conceiving antitrust law as a mechanism for allocating coordination rights, which I think is a really fantastic example of an intervention that can really redefine how we look at a body of law and surface its possibilities.
This type of work, in particular, I think can be especially useful in forcing policymakers to really reckon with an alternative set of values that should or could be motivating how we construe a set of laws or policies.
And third, I would point to you know scholarship that is effectively mining existing authorities and statutes for an expanded alternative set of tools and levers. So i’m thinking, for example here of Sandeep Vaheesan’s work on unfair methods of competition rule making or Luke Herrine’s work excavating the FTC’s unfairness authority to reassess its reach and scope.
And this type of work, I particularly put in the bucket of an enforcer’s dream, scholarship that is very concretely mapping out how our existing tools can be put to new or better uses.
Needless to say, this is just really scratching the surface of the types of research and scholarship that have already been so fruitful. As we look to translate the antimonopoly movement in the context of scholarship and research into practice.
I’ll just close by noting two areas in particular that I think are especially critical for the FTC and that continue to invite greater scholarly engagements. First is, what do we really mean by “unfair methods of competition?” This is in some ways is a question that goes to the heart of the FTC is existence, reason for being.
I take very seriously that the text of the FTC statute uses this term “unfair methods of competition.” But I think there are really still basic questions to be engaging regarding how we distinguish fair from unfair methods of competition, questions that are rarely frontally engaged among anti trust practitioners, but that are really critical for us as we chart a path forward. And second is, you know how do we really think about the full scope and reach of our unfairness authority.
So our unfair and deceptive acts or practices authority is another key pillar of the FTC mission and mandate and our unfairness authority has been codified into this three pronged statutory tests. But even within those parameters, I think there’s a whole set of unanswered questions that are really worth, and invite deeper probing in terms of what we mean by substantial injury, what it really means to engage in the certain types of balancing inquiries that that framework invites us to do.
Those are just two examples of kind of within-the-FTC inquiries that we’re deeply engaged in that I think will be really critical for us going forward, where I think engagement by communities like LPE and ESP will be really critical.
So i’ll just close there, by again thanking you all so much for inviting me and for creating the space and the momentum for the types of discussion. I think the moment that we’re in really couldn’t have been achieved without the work that you all have done, and so thank you for everything you’ve already done and continue to do to make this all possible.
Terrific. Thanks so much for that characteristically both incisive and generous set of remarks, Chair Khan, and also for your leadership and your path breaking thinking in this area. It’s lovely to be surpassed by your former students.
So I wanted to take a moment to say a few words about the Law and Political Economy project, and also to welcome you before introducing Commissioner slaughter.
I am just so delighted and frankly a little bit amazed that we could get this all-star panel together, because these are really the people that I think of as shaping the new approaches, both to antimonopoly thinking. And action and so to have them take a few moments away from their writing and their advocacy and enforcement obligations and to talk to us about what’s coming and what is missing in forthcoming scholarly approaches to anti trust is just wonderful so thanks again also to the ESP staff and the LPE staff that made this possible and becky for fostering that vision that put this all together.
So i’ll say just a few words about the Law and political economy project for those of you that aren’t familiar with it. I’m a faculty director of that project. And we are very glad to collaborate here with ESP because we see antimonopoly as one of the most vibrant areas for what we call LPE, law and political economy thinking.
And as you’ll hear, the antimonopoly framework itself is capacious, broader than antitrust, and importantly spans what I think of as the political economy, thinking about the politics of the construction of our economy.
So the law and political economy project started several years ago. It brings together a network of scholars, practitioners, and students who are working to develop innovative intellectual pedagogical and political interventions to shape the study of political economy and law. And our work broadly is rooted in the insight that politics and the economy cannot be separated and then both are constructed in essential respects by law.
The project emerged from the conviction that developments over the last several decades in legal scholarship and policy really helped to facilitate the rising inequality and precarity, the political alienation, the entrenchment of racial hierarchies and other kinds of intersectionality exploitation, also ecological and social catastrophe really that looms on our horizon, and we’re hoping and working to reverse those trends, by supporting scholarly work that maps where we’ve gone wrong and that develops ideas and proposals to democratize our political economy and build a more just and equal and sustainable future.
And if you’re interested in our work in other areas, have a look at our website and our blog on law and political economy project lpeproject.org. So just having laid out that very broad brush of what we’re trying to accomplish in law and political economy.
I think you already begin to see the obvious connections with today’s conversation. Antitrust law and antimonopoly thinking are really critical to, one, begin to sort of map and understand how various kinds of law, not just antitrust, but also, as will hear a little bit about today, Corporate law, intellectual property law, law of franchising, law of government data–all of that. How has law been constructed to help concentrate corporate and private power and contribute to monopoly power, but also to disable certain kinds of, or make more difficult, certain kinds of democratic governance of our economy. so i’m very excited to hear the panel that comes, and I also have the distinct honor of introducing Commissioner Rebecca Kelly slaughter.
Commissioner Slaughter was sworn in as an FTC Commissioner on May 2, 2018; is a graduate of our fine law school, Yale law school and came to the Commission already with more than a decade of experience in competition, privacy and consumer protection law, including while serving as chief counsel to Senator Charles Schumer of New York. Commissioner slaughter has been really at the forefront of thinking in this area, including about how equity and concerns about inclusion can be connected to antitrust law. I hope you might hear a little bit about that today.
I think will also touch on some of the ways that the Commission and the Biden administration are working to address monopoly power and how our thinking and data might need to be developed to do this work best. So with that, let me turn it over to Commissioner slaughter with great thanks.
Rebecca Kelly Slaughter:
Thank you so much amy for that kind introduction and thank you for all of the work you and LPE are doing, I think it is so important, I really want to echo chair Khan’s words of admiration and thanks for the research that is being done. It is so important, we do pay attention to it, it does help change the direction of our work. And just deeply profoundly grateful for it and so incredibly honored to get to be here with you today.
As Professor Kapczynski suggested, I do want to talk a little bit about the intersection of equity and the concept of anti-racist antitrust.
But before I delve into that I want to thank not only everyone involved in this project, but everyone in the antimonopoly advocacy Community for so effectively raising public awareness about why monopoly power, antitrust law and competition policy matters so much to Americans in their everyday lives. A lot of our conversation, and a lot of the terms we use can feel very academic or political or abstract, but we all know that lack of competition is not an abstract concept, it is very real for real people. When we’re shopping for food or picking up prescriptions from the pharmacy, pricing out mobile phone plans or trying to seek better pay and benefits from potential new employers.
The research of today’s panelists highlights the important questions about how market power plays into digital infrastructure, the health and safety of workers, racial-surveillance capitalism and even the electric vehicle industry.
Because market power and market concentration seep into so much of our economy and daily life, it really is important to understand antimonopoly work as interdisciplinary. Just as the antitrust agencies, FTC and DOJ, have statutory tools to help prevent and fight monopoly power and anti competitive market structure and conduct.
So, too, do other government agencies. As we know from President Biden’s executive order on competition, of which we mark the one year anniversary last week. There are numerous ways other agencies can help contribute to the antimonopoly agenda and promote more competitive and fair markets for consumers and workers. President Biden has also advanced a cross-agency approach to promoting racial equity and I want to focus today and the intersection of this work with the antimonopoly missions.
President Biden issued two executive orders on this topic last year, the first was the executive order on advancing racial equity and support for underserved communities through the federal government.cThis order, like the competition executive order, calls for a whole of government approach to advancing racial equity.
As the President said entrenched disparities in our laws and public policies and in our public and private institutions and have often denied that equal opportunity to individuals and communities. Our nation deserves an ambitious whole of government equity agenda that matches the scale of opportunities and challenges we face.
Alongside that, the President issued another executive order on improving government diversity, equity, inclusion and accessibility in the federal workforce. This order was focused on strengthening the federal government’s ability to recruit, hire, develop, promote, and retain our nation’s talent and remove barriers equal opportunity. We all know the adage: personnel is policy. We need diverse staff and an inclusive culture to ensure a diverse inclusive enforcement of the law.
With these executive orders as a backdrop, I’m going to talk about the intersection of competition and equity and what we’re doing at the FTC today to apply an equity focus lens to our antitrust enforcement and competition policy agenda. First, I’m going to talk about why, why do we need to consider racial equity and how can we respond to critics of an anti-racist, antitrust agenda. Next, I’ll discuss what is happening at the FTC today and how we’re working to carry out the vision of the president’s executive orders. And finally I’ll discuss how research and data are critical to help inform and support the FTC work to address structural inequity in markets and to not unwittingly reinforce existing structural inequities. Clarity about the effect of competition enforcement on equity is necessary not just from a moral perspective, but to ensure that our substantive work is being carried out effectively and consistently with our statutory.
We know that systemic inequality is widespread in our economy, a growing body of research, and I encourage more research on this topic, shows that market power abuses disproportionately impact black and brown communities, rural communities, and other historically disadvantaged communities.
For instance, covenants not to compete in employment contracts, non competes, are pervasive and have been shown to have an outsized negative effect on the wages of women, older workers and minorities. Moreover, for decades, the lack of access to capital has been a barrier to entry for black and other minority owned businesses. Liquidity constraints are compounded by pervasive predatory lending practices and minority communities.
This results in limited economic opportunity which is problematic on its face, but it also fuels monopoly power by limiting market entry by minority entrepreneurs and the potential product quality and innovation benefits they offer. These are just a few examples of documented disparate impacts of racial inequity and markets. continued scholarship will help uncover more.
I think many in the audience today probably agree with what I’m saying, but I want to pause for a minute to talk about how I respond to the pushback from some quarters that considerations of social problems like racism have no role and antitrust enforcement.This perspective stems from the noble sounding idea that antitrust enforcement should be value neutral, a just-the-facts approach to law enforcement. I reject the idea that we ever could, even if we wanted to, be value neutral on our enforcement.
Our decisions about what cases to bring reflect underlying values, our choice is only whether to acknowledge that fact. The concept of validating neutral antitrust enforcement is at best aspirational, like the myth that race blindness will eliminate racial discrimination. Antitrust necessarily addresses fundamental economic and market structures. In the United States, economic and market structures are historically and presently inequitable.
So when we make decisions about whether and where to enforce the law or how to deploy our enforcement resources, we are making decisions that will influence those economic structures, our decisions can either reinforce existing structural and equities or work towards breaking them down. I would prefer we chose the latter. Even if we could be value-neutral, I don’t believe we should be. In general, we accept that law enforcement is inherently laden with value judgements.
In the criminal context, for example, we’re comfortable with prosecutors explicitly setting out values-based priorities such as a focus on white collar violent crime prioritization is effective civil law enforcement, as with other enforcers the FTC is funded by a small, way too small portion, of the finite supply of taxpayer dollars.
As a result, we must prioritize our work. We do this based on value judgments all the time. The FTC bureau of consumer protection has long been comfortable focusing its unfortunate resources on problems faced by people by underserved communities, a fact that I’m very proud of. Through research and experience we’ve learned that fraud, as well as certain other business practices have a disproportionate effect on communities of color compared with white communities.
The FTC Every Community initiative, created in 2014, has served to modernize and expand the agency’s work and to develop the strategic plan for addressing disparities and other issues affecting communities of color. In 2021 we launched a public website that makes it easier for low income populations and legal services organizations to report fraud and secure redress for consumers.
Since 2016 we brought more than 25 actions, where we could identify that conduct either specifically targeted or disproportionately affected communities of color. Recently, the Bureau of consumer protection has focused on predatory lending, as well as discrimination in auto financing, two areas that we know, particularly harm black communities. These are not value neutral enforcement decisions.
Similarly, we should not be value neutral in discharging our competition policy. To address racial equity in antitrust is not to invent new law or abdicate the agency’s existing obligations. As I noted earlier, data shows the paucity of minority owned businesses’ limited growth over the last two decades. A growing mountain of data also makes clear that certain business practices, including a variety of covenants not to compete, have had a disparate impact on racial and other minorities.
At the same time, we have observed disparate harm of new technologies on racial minorities such as the use of AI powered employment screenings that only provide the veneer of objectivity. Playing whack a mole to address new harms to consumers is neither efficient or effective.
Instead, we need to think strategically about using antitrust law and competition policy as a tool for combating structural racism, in a system built on a social construct that favors incumbents. We need to be asking how we can use our enforcement tools to ensure that markets are competitive and empower historically underrepresented and economically disadvantaged consumers rather than incumbents.
To protect consumers and effectively promote competition with lasting impact, we need to address the underlying problems in the system. We need to be actively anti-racist So how can we do that, in practice? a start has been the FTC’s equity action plan which we put together under Chair Khan’s leadership. An internal cross agency team worked with stakeholders throughout the FTC to create this plan, in response to the president’s executive executive order. It addresses not only our competition and consumer protection or but also the agency’s procurement and contracting and internal diversity equity and inclusion issues.
On the competition side, attorneys, economists, and others work together to identify barriers to equitable outcomes in antitrust enforcement and concrete actions we can take to address these barriers. First the Agency is changing the way we select cases for investigation and enforcement.
Traditionally, the agency has selected competition cases based on the significance of potential harm, the strength of evidence of harm, and the impact of the potential revenue. The Bureau of competition has considered the impact on specific communities and individual cases, particularly those where the relevant products are used by target groups, for example, seniors or special needs children. However, it’s not systematically collected and considers this type of disparate information in case selection or done so with a focus on demographics.
Given the need to better understand the effects of anti competitive conduct and acquisitions on vulnerable communities, the change is necessary. The Bureau competition is now collecting more granular data in its antitrust investigations specifically focused on the demographics of affected communities. By doing this, we can understand where and how communities of color may be disproportionally armed by proposed mergers or by anticompetitive conduct.
One specific issue we are looking at are restrictive covenants not to compete. In addition, our merger analyses now regularly seek and examine data related to non-competes in deals. I’d like to highlight a few specific actions, the Commission is already taken with a racial equity aspect.
One of the FTC’s focus areas has long been the healthcare industry and we know that healthcare is replete with racial inequity.Nowhere is this clearer than with insulin, where the high prices have harmed so many, and where the burden has been particularly acute in black and brown communities.
At multiple open Commission meetings we heard from insulin patients and their family members about the crippling high cost of insulin. A heightened burden for patients with high deductible insurance plans or no insurance at all.
Last month, the Commission took two steps in response to the horrifying problem of high insulin prices, first we issued the policy statement. “The Federal Trade Commission on rebates and fees in exchange for excluding lower cost drug products,” it is a mouthful. The title and the many words in the title are not where you should get stuck, you should focus on the fact that in that statement we committed to deploy the full panoply of the FTC statutory tools, both consumer protection and competition-related, to tackle high pharmaceutical prices, including the price of insulin.
The Commission also unanimously voted to authorize a 6b inquiry of contracting practices of PBMs, an entrenched intermediary in the US pharmaceutical market who wield immense power. They influence which prescription drugs patients can access and how much they pay, as well as the profits and losses that pharmacies accrue from dispensing prescriptions. PBMs themselves may not be well known, their aggregate impact felt by the roughly 8 million Americans and their family and friends who rely on insulin to control diabetes.
As we learn from public testimony and at least some cases both the insured and uninsured have had to pay more and more for insulin. Apparent distortions in insulin markets have led to the patients rationing insulin and resulting fatalities. And since diabetes, like other health problems disproportionately affects lower income communities and communities of color, problems in insulin markets further exacerbate disparities in health equity. Disentangling the root causes of patient harm in a complex web that is our health care market is not easy. But as enforcers we have an obligation to stay abreast of the evolving ecosystem and thoroughly investigate the underlying contractual relationship, business practices, and data.
This includes empirically assessing and addressing limitations and our understanding of this information. It also means that as the evidence is more compelling as it has for market power’s disparate racial impact, that we employ the full range of tools and our enforcement Toolkit to remedy the harms faced by patients.
Our 6B inquiry and policy statement were in no small part products of Community engagement. Testimony of real patients impacted by insulin prices at public fora helped move the needle, input of the people that we ultimately serve, their stories, data and core concerns, are critical to helping the FTC address alleged abuses of market power. And I want to take a moment to particularly thank and applaud Chair Khan for starting the practice of making the FTC more accessible to this public input and giving us the opportunity to have public comments at open meetings.
I know she cares very much about democratizing the processes of the Agency and demystifying them, and I think these have been important steps. And I think the insulin work is where you can see how they pay out and pay off in practice. Health care provider and hospital mergers or another area where we can deploy racial equity lens where the rising cost of health care can have a disproportionate effect on communities of color.
The FTC is challenge numerous hospital murders in the past few years, that would have increased the cost of health care. Including one case in Rhode island where chair Khan and I, we filed the challenge to the merger, but Chair Khan and I also issued a concurring statement to say that we would have included a count to challenge the merger for harm to the nursing Labor market, and that is a really important point about workers.
Another initiative that the FTC is focused on, as part of its equity plan, is competition for workers Labor. Monopoly is a better known concern in antitrust, but monopsony the exercise of market power by a buyer of an input can be just as noxious. Labor monopsony, in particular, is where there are only a few employers in a given market.
Such a market structure enables a limited number of employers to wield outsized market power by depressing workers wages below the level that would have otherwise prevailed in a competitive market, with more employment options. Studies have shown that Labor monopsonies are pervasive across the country. Specifically, the metrics in the DOJ and FTC horizontal merger guidelines show that the average Labor market is highly concentrated.
This high concentration of employer power, especially amongst low wage workers, especially black and brown workers, the Commission is committed to probing the effects that mergers and other business practices have on competition for workers Labor. As we prioritize conduct that harms workers, we should focus on those Labor markets that employ large numbers of workers of color.
Just today, hours ago we announced a memorandum of understanding with the NLRB to ensure that we’re sharing relevant data with the Labor focused arm of the Federal Government, about key issues such as Labor market concentration, one-sided contract terms and Labor developments in the gig economy.
In addition to the substance of cases we pursue and the data and information we collect, we must focus on diversity equity and inclusion within the profession and specifically within the FTC. That means actively working to improve diversity and recruitment, hiring, promotion, and leadership.
We must be intentional about the professional development and advancement of all underrepresented people. These efforts are not only critical to creating a diverse and inclusive workplace for our staff, they will also help us in our substantive work.
People from diverse backgrounds bring different perspectives to the table and improve our work. Commitment to diversity equity and inclusion is an obligation, I believe, for the entire competition community to take on.
We need to continue holding thoughtful and open discussions about how antitrust law and competition policy can make our nation and economy more equitable and just. So that’s just some of what the FTC has been doing, but where do we go from here? First we need to keep fine tuning our case selection strategy. How can we proactively identify competition issues that have a disproportionate impact on vulnerable communities?
Research and fact finding about markets where potentially anti competitive conduct or mergers have occurred or are occurring will greatly aid FTC. I greatly applaud those who are already conducting this research and gathering data, and encourage more so that law enforcers and policymakers can learn and deploy our resources accordingly.
Further research may be useful in markets that are critical for basic life: food, grocery stores, healthcare, prescription drugs, and work. Research about the intersection of civil rights law and antitrust law would also be relevant.
The Deputy Director of the Bureau of Competition, John Newman, recently wrote an article about antitrust law and racial inequity that discussed the 1981 case where antitrust laws were used to stop a conspiracy to reduce competition, in part for racist threats and intimidation. Vietnamese fishermen in Galveston, Texas alleged that a group of fishermen, including members of the KKK, had conspired to force the plaintiffs class of Vietnamese fisherman to curtail their commercial fishing business, with the goal of eliminating or reducing competition.
In this case, antitrust law was used to stop overtly racist action against minority business owners. I’m curious whether there may be similar ways to deploy antitrust law on today’s markets. Another issue that intrigued me is one that was first surfaced to me by Leslie Overton, a former Deputy Assistant Attorney General in the antitrust division. Which is how we incorporate anti racist thinking when we’re thinking about remedies for a merger and divestitures and specifically whether and how we can consider making sure that minority owned businesses have the opportunity to be divestiture buyers and that we aren’t inadvertently screening against, or employing conscious or unconscious biases in our screening for divestiture buyers, that might discriminate against businesses that are otherwise well poised to replace lost competition.
So, for example, duration in a particular industry, may be a proxy that does not reflect the capability of a firm. But may serve to exclude well qualified black and other minority owned businesses. Additional research and thinking about this topic could help more diverse business owners learn about, participate, and be successful in the divestiture process.
I don’t claim to have all the answers as to how to thoroughly implement an Anti racist agenda in our competition or our agencies’ initiatives are intended to be a meaningful start, but much more is needed. I look forward to continuing learning, thinking, and discussing with you. Ultimately, we need to work collectively to improve and evolve in our ongoing efforts to tackle systemic racism.
So thank you to all of you researchers who are already working on this and I hope more are inspired to take up this opportunity to meaningfully contribute to the antimonopoly movement, thank you very much.
Thank you for those excellent remarks Commissioner Slaughter. Thank you to Becky, Corinne, Raul, and Amy for organizing this event, inviting me to moderate. I’m truly delighted to facilitate today’s discussion among four scholars who are doing cutting edge anti-monopoly work. Their scholarship exemplifies the breadth of antimonopoly, as much more than just antitrust law breaking up large corporations, as we will soon learn and discover.
I will introduce the panelists and quickly turn it over to them for opening remarks. Elettra Bietti is a joint postdoctoral fellow at NYU School of Law, the Digital Life Initiative at Cornell Tech in New York. She recently defended a dissertation at Harvard Law School in platform regulation and political theory which was affiliated to the Berkman Klein Center for Internet and Society at Harvard University and to the Information Society at Yale Law School.
The second panelist is Brian Callaci, he is chief economist at Open Markets Institute, he has published writing on economics and policy and scholarly and popular outlets, including Harvard Business Review, Enterprise & Society, and Boston review, he has previously worked at data & society at the Strategic Organizing Center and Workers United.
Seeta Pena Gangadharan is an Associate Professor in the Department of Media and Communications at the London School of Economics and Political Science where she studies technology governance and justice, grounded in democratic theories of media and critical studies of technology and policy. Her work addresses inclusion and marginalization, she currently leads our data bodies which examines the impact of data collection and data driven technologies and members of marginalized communities in the United States.
Last, but certainly not least, Lenore Palladino is an assistant Professor of Economics and public policy at UMass Amherst, Research Associate at the UMass Amherst Political Economy Research Institute and a fellow at the Roosevelt institute. Lenore’s work centers on economic democracy ending shareholder primacy in the relationship between corporate governance and labor market. She frequently works with policymakers and media and organizers in corporate and financial policy and is the author of the forthcoming book “good company economic policies for innovative enterprises.”
So each of our four panelists is going to speak for about five minutes on a range of topics, including what is antimonopoly, what is its connection to the big issues today. What issues they find most interesting and how do they get into the field, what are they currently working on. so to kick things off i’ll turn over to Elettra.
Thank you so much Sandeep Thank you to Corinne, Raul, Amy, Economic Security Project and the LPE project for organizing this fantastic event. I am truly humbled to be among these distinguished co-panelists and will try to be brief.
So my work focuses on the regulation of digital markets and on large platform companies such as Alphabet or Meta and I hope there will be time in q&a to talk more about some current research that I’m carrying out, including a comparative project on US, European, and African antimonopoly that is being funded by the Economic Security Project.
In my five minutes, I want to focus on the notion of antimonopoly, what it means, what its potential is and what its kind of limits and downsides might be. So I’ll start with some definitions. What is antimonopoly? Bill Novak’s new book, which I highly recommend, describes late 19th century antimonopoly as, first and foremost, a question of the democratic distribution of power and authority in a supposedly self governing republic. He also suggests that antimonopoly regulation during the progressive era was primarily about the social control of business. And so, given this historical precedent, how should we try to understand the notional antimonopoly and has relevance as a concept in debates today.
And I want to answer this question somehow in the negative by looking at two potential outer boundaries that are commonly associated with the concept of antimonopoly and that, in my view, are misleading and poorly cloud or current use of the term, and the potential that we could attach to this concept. So the first fallacy, I want to discuss is that, I think we are mistaken when we say that antimonopoly is primarily about fighting big business and that it’s anti bigness.
And that’s because distributing power and authority or socially controlling business doesn’t necessarily imply the fighting, or the outlawing of concentrated or centralized productive functions in an economy, Instead of antimonopoly could mean regulating and publicizing concentrated private power.
You can think of the power of Google and online advertising markets, which could remain somewhat centralized but can be made more transparent, more accountable fairer towards advertisers and publishers and more responsive to societal needs.
Antimonopoly could also mean designing centralized ways of overseeing distributed systems such as blockchain ecosystems or social media networks and so as to address threats and societal questions like environmental sustainability or free speech concerns.
And so, unlike commonly held beliefs, antimonopoly isn’t just about fighting bigness, but can also be a way of thinking about both centralized and decentralized structures of production as alternatives on a spectrum that can be weighed against each other In specific industry context, rather than as something that is either virtuous or evil in the abstract.
And the second fallacy I want to debunk is a tendency to think of antimonopoly as a list of disciplines of doctrines of fields of law such as antitrust, public utility regulation, corporate chartering, public provision cooperatives, of course, all these things are included in the concept of antimonopoly. But, as Commissioner Slaughter pointed out two minutes ago, markets are shaped by factors that go far beyond the traditional kind of toolbox of antimonopoly, so they include things like predatory lending, consumer protection, civil rights law, Labor law and even the infrastructural form of Ai systems.
And so the social control of business could require pooling from any number of legal, technical and social approaches to disciplining productive systems that go beyond a finite list of fields of law. So I’m a technologist scholar and In tech literature Lawrence Lessig and Joel Ridenberg really pointed out that regulation could mean a number of things that go beyond law.
Regulation can stem from material artifacts; the aphorism code is laws is quite famous. But regulation can also be the shaping of behavior in a business through social organizing and social norms. And so I think that seeing antimonopoly as a finite list of pre-existing areas of legal doctrine limits the possibilities we have for experimentation with how to socially control business and production. This is, I think, particularly problematic in new and emerging markets such as digital markets which raise new questions on the relation between law and technical artifacts, but also in informal economies that have features that are very, very different from the features of the US economy. And this includes economies in the global South but also all over the world.
=And so I hope to persuade you that and probably can and should be construed in a capacious way. It is not just an apparatus for fighting bigness, it is not just a finite list of legal approaches, but it is a dynamic umbrella of approaches that span across law and beyond, for making markets, infrastructures and emerging industries more responsive to the needs of society. Thank you.
Wonderful, thanks so much for the stimulating remarks, Elettra. Next up is Brian.
Thanks ESP and LPE for inviting me to do this with this group, this is really exciting. So I guess let’s start off by saying you know the original antimonopoly movement, you know, was a response to the rise of large corporations in the last quarter of the 19th century, and this was a new thing.
People understood that these new entities that were actually created by new laws, new general incorporation laws, could generate material prosperity that was unprecedented in human history. But, also, that the people who control these corporations, who are now fabulously wealthy and powerful might want to abuse that newfound vast wealth and power to do stuff like you know extort farmers, gouge customers, shoot their workers if they went on strike, and you know and even corrupt, you know democracy itself.
So, look, I’m an economist, we tend to assume that what corporations do is maximize profits and all that stuff I just mentioned, the bad stuff but also the good stuff corporations do is all profit maximizing.
You can make money by doing the bad things, so we need rules and guidelines to channel competition in the right direction. So we want the innovation, we want the investment, high wages, low prices; we don’t want the adulterer products extorting suppliers discriminating or engaging and predation against communities of color, poisoning the water, Union busting all that other kind of stuff that is a way that, without guidelines, corporations can increase their profits. So sort of following up on what Elettra was saying, I think there’s a lot of wisdom that we economists at least have forgotten.
Lawyers are a little more in tune with this in the tradition of American institutionalist economics, these were the Economist who crafted the progressive and new deal era economic reforms and, unlike their contemporaries over in Great Britain or Austria, that were called the neoclassical economists.
American institutions were thought in terms of abstract — sorry neoclassical style in terms abstract models are good American institutionalists are fundamentally pragmatic, in line with the American pragmatic philosophical tradition, and they are highly attuned to concrete law and policy. And law and policy are what actually create corporations, are what creates institutionalist markets, they set the rules of competition.
So John Morris Clark, one of these institutionalists economists, I’ll claim him for the institution list some of the most common neoclassical, but he said that the problem of economic regulation was how are we, meaning the public, to as Elettra said, socially control these corporations. One of his comments was “either we control business or business controls us.”
And because competition is one of the most effective and cheapest ways to control and discipline powerful corporations. Antitrust was sort of the first antimonopoly tool and it’s sort of the first line of Defense we have but it can’t be the only one, because it’s not enough. Clark also developed what he called the theory of the second best and that means is, if you don’t have all the conditions in place for a perfectly competitive market, which is the economists blackboard model where everything works out great for everybody just restoring one of those conditions can actually make things worse.
So antimonopoly can’t just focus on correcting distortions to sort of nudge economies back to this ideal of a blackboard perfect competition model we actually have to have ongoing active policies to structure and regulate our markets and businesses to make sure they’re fulfilling all those socially beneficial functions that we want them to do.
So just to take an example, labor markets are inherently uncompetitive, in the sense that the wage bargain is not between equals. Employers have wage setting power over workers, this is one of those things that, I think it’s kind of obvious if you’ve ever had a job but we economists are just catching up on that particular issue. So the solution to imperfectly competitive Labor markets isn’t to go out in the labor market and look for distortions, take them away, one by one.
But that’s what you know, some of the conventional antitrust has actually done that. Targeting horizontal agreements among independent contractors that were trying to raise their wages or there is a current sort of obsession with occupational licensing as a distortion of the Labor market and neither of these two things are at all even close to being responsible for the problems of wage depression, of wages just not keeping up a product productivity, of wages being suppressed.
So the actual solution to labor market power is actually stuff like active policies, boosting worker power. Things like minimum wages, which the fair Labor standards act, in 1938 classified as an unfair method of competition, using antitrust style language giving businesses an unfair advantage if they were exploiting their workers. Collective bargaining, banning employer restraints on labor mobility like no-poach and non compete agreements. So I think you know, antimonopoly encompasses the full range of policies to reining corporate power and focus competition in the right direction.
You know, after all, these are publicly charter corporations and our public markets, and they should serve us rather than necessarily always private businesses, thank you.
Sandeep Vaheesan: Thanks so much Brian. Shout out to institutionalists, they’re always welcome and appreciate it. Over to you, Seeta.
Seeta Peña Gangadharan:
Thank you, thank you so much, very grateful to LPE and ESP to Commissioner Slaughter, and Chair Khan for remarks and to my collaborators, as well as the Community members past, present and future that we learn with.
My work lies at the intersection of technological governance and social racial and economic justice and for the past seven years I’ve been involved with our data bodies. Which is a participatory research project that develops discourse or narrative and a practice around contesting technologies and the institutions and people who develop and manage them.
Our original work which we kind of refer to as ODB classic ran from 2015 to 2020 and it focused on surveillance in the broadest range possible within the most marginalized neighborhoods of Charlotte Detroit and Los Angeles, and our newest work is focused on workplace surveillance tech power and Community power.
If it’s not obvious I come to the issue of antimonopoly from the vantage of surveillance and marginalization. I will say, frankly, that antimonopoly isn’t the first word to roll off the tongue. I’ll also add that my first foray into policy advocacy was on the issue of media concentration at a time where the through line between marginality free expression and media plurality or media diversity was arguably very palpable.
And that contrasts with the communities and conversations that I’ve been involved with where the connection between surveillance control and tech power or monopoly power is complex, rather than a no brainer. So we’ve kind of moved, at least in the spaces that I move in. It’s a different kind of engagement with these ideas of antimonopoly and I get and I very much respect that many important organizers historian scholars policymakers have demonstrated the connections, for example, between anti slavery anti racism, antimonopoly.
But antimonopoly really feels like a limiting term to me, partly because it does not affirmatively define the world that we want to live in, a world that is without extractive exploitative industries. and as well antimonopoly also doesn’t quite capture the way in which markets, especially the tech market, seems to be blown apart by the very notion of collective or consumer welfare.
I’ll also add that, for me, partly because where I sit in academia in these very high level conversations about tech and tech governance. I think it’s really a great opportunity to puzzle through the changes that we’ve seen and how the tech sector does its business. It’s not only about data extraction it’s also about how the tech sector invests and makes money from money. And, and the experience on the ground that communities are feeling, both in terms of Labor but also access to goods and services.
So when I think about antimonopoly research, which I am again sort of at the margins of or intersecting with, I would hypothesize that people’s experiences experience systemic hardships is extremely difficult to articulate, let alone report to, in part because the political opportunities to do anything about this, feel very much out of reach, so this is something that I feel we need to confront and and really pick apart.
The work that we do as a team and with our collaborators is, as I mentioned before, participatory in order to open up conversations that haven’t been opened, before or if they’re already opened are not adequately listened to.
And to generate knowledge in ways that grow conversations, not just in the higher echelons but, at the ground level so the person or the people who have often the most to gain from research are the most neglected.
And the least connected. They lack the means to collectivize their grievances and to reach the spaces, where key decisions about how companies behave get made. Not to mention, even if they did get to the spaces of decision making, there is a perception that these spaces are highly dysfunctional and to the point that it’s not clear whether the conventional levers for change are even appropriate for the problems at hand.
So I think essentially what I’m trying to say is I’m hoping that partly in this conversation, and in future conversations we’re able to really affirmatively identify what is the thing that we’re working towards so it’s not a negative thing anti, but actually for. And that we’re thinking in imaginative ways about the ways that we participate in these debates and impact them as well, thank you.
So much that that was a very cogent critique and, importantly, raised the limits of antimonopoly as a concept, and I think rightly raise a question: have we jumped the gun in calling the antimonopoly movement, the movement. So over to you Lenore.
Great, always good to be with such a great group, and thanks so much for having me. Let me first say how much I appreciate the work that Economic Security Project is doing that LPE is doing, all the organizers who put this event together. I’ll just give my support, as a sort of yes and for all the previous comments it’s really great and sort of gratifying to be with people who are thinking radically about corporate power so I’m going to actually maybe pick up a little bit on what Seeta was just saying.
In terms of when I you know thought about how I want to answer the question, what does antimonopoly work mean to me and why is it important work that i’m doing. I want to flip the question a little bit. Actually, I think that doing work to reduce corporate power is important, because what we actually need is a productive and democratic economy that supports real innovation to meet our needs and not elite extraction, full stop right.
Our economy is structured by histories of oppression in terms of race, gender colonialism, the current climate collapse that we’re all watching happen in front of our eyes. And so antimonopoly work needs to grapple with this and keep pushing us towards structuring the economy that we want, not just what we don’t want, not just focusing on what we don’t want. I just think we need to do this with absolute urgency, given the reality of authoritarianism and the fires that were all watching online today.
So let me get a little bit more specific and talk about two of the you know, two of the many, but two key issues that I’ll add in, that I think we need to really pay attention to when we’re doing anti monopolies scholarship and research.
So First, we need to really just shake off any lingering.commitments to the economic conception of perfect competition and Brian spoke about this as well, but there’s this idea that still persists in our analysis of market power and the harms that it creates that, if only we had an economy where there were an infinite number of small businesses households with no power dynamics of any kind prices would become a kind of passive language, by which we would produce and consume and everything would work out right.
It’s an incorrect and problematic framework for so many reasons that you know we don’t have time to go into, but I think for our purposes for talking about corporate power and market power work it’s really important that we’re absolutely clear that taking on market power is not about moving us towards some world in which workers are paid a wage that is equivalent to their marginal product or that businesses would if they’re sufficient antitrust regulation simply charge a price equivalent to some marginal costs.
This is not how the economy works now it’s actually not how the economy has ever worked the theory itself is based on flawed assumptions and setting perfect competition as our baseline that we seek to meet when doing work to combat market power will lead us down, I think, a dangerous path. so that’s sort of point one. Two, and this is where I’ve been spending a lot of my time, you know, building on, what are we actually focusing on when we focus on market power and corporate power?
I think we need to return to you know this older institutionalist understanding of the corporation as a social institution that not only is granted public permission to operate by the government, and therefore we have the rights to create the rules within which it operates, but also from an economic standpoint requires strategic and organizational capacities, along with financial commitments to innovate, over time. So to me, this involves breaking definitively with the shareholder primacy view of the corporation.
Which is this idea that shareholders are the most important group of any large business because they, in theory, contribute the financial resources used for production.
This is, in short, a totally incorrect framework for what corporations are and how they produce, because value creators in businesses or workers because shareholders today mainly trade shares with each other, meaning the financial assets that they’re trading never actually interact with the firm at all. And so, and stay within financial institutions enriching a small wealthy white elite.
So this idea of corporations existing to maximize shareholder value is also one that sometimes I do see really creep into antimonopoly work. Work that I think has the right commitments and sort of intention around analyzing how dominant corporations are operating in specific product markets, but it is, I think, a really dangerous assumption to be there even implicitly.
So we need to refocus on what it actually means to have productive, economic institutions both businesses and markets and think about the types of rules and frameworks, we need to actually meet the goals of the economy that we want to see.
And I’ll just close by mentioning one other, more specific point that I think jumps off the question of what are we working on, what are we interested in?
I’m really interested right now in work that focuses on specific sectors, your specific goods and services sectors and thinking about the right balance that we might strike for the type of social control of business for the type of structuring of a given good or service they want to see. So we have choices, even though right now, our politics feels very hard, but we do have choices in a democracy.
Between de-commodifying certain goods goods and services, enabling production of goods and services in large private entities with appropriate social controls and creating and nurturing complex ecosystems of small businesses and different types of entities.
I think the balancing act that we want to strike between these different forms of production is actually industry specific so it’s very different in healthcare or for me in the case of one sector I am researching right now, electric vehicles and the new grid necessary for the electrification of transportation. It’s very different than it would be in retail or as many of the other speakers have focused on in the world of big data or in finance.
I think this sectoral approach which explicitly takes into account public production, as well as other standard approaches to industrial policy, as well as thinking about the balance between large entities and ecosystems of small businesses is one of the most interesting places for us all to be putting our attention, right now, because there is no one cookie cutter approach that we should look for in terms of the structuring of any given sector in the economy.
I think we have a real chance to move this work forward, and we have real urgency now to not just take a 20th century view of how to structure the economy, but we have to be specific, not general in order to be most effective. So i’ll close there and look forward to the rest of the conversation thanks.
Thanks so much Lenore, I think your righteous criticism of perfect competition cannot be stated often enough, even in reform circles, I see people clinging to these deeply flawed neoclassical notions and trying to repurpose them for good ads and I think it’s a dangerous dangerous game to be playing.
So I’m going to start the discussion portion which is going to be fairly short, unfortunately with the question for all four panelists and just raise your hand if you want to answer. What’s missing from the antimonopoly conversation at present what research questions are overlapping and adjacent fields and disciplines are ripe for exploration.
I can say, maybe just one brief point to start us off, which is something that really goes well beyond anti-monopoly work in many ways, but I think that those of us who are operating inside sort of policy, research and academic spaces need to be constantly paying attention to how we are working with and supporting other types of social movements other types of organizing groups.
I think, within the you know quote unquote anti-monopoly space there’s a lot of organizations that are doing really critical work right now taking on concentrated corporate power.
We can look at everything from the union organizing happening at Amazon at Starbucks, you know all the other great uprisings we’ve seen over the last couple of years we can look at groups like the Institute for for local self reliance acre the action Center for research and the economy or for race.
And the economy and lots of others, and I think that that type of intersection is actually something that a lot of people talk about and point to but don’t actually spend time really doing. And so that’s one place, that I would encourage anyone who’s you know watching this panel and interested in thinking about how to approach this work for themselves to really think about how you might engage.
Eletta, Brian, Seeta, thoughts on this question?
I’m happy to say something. First I want to underscore how much I agree with Lenore’s emphasis on specificity and context, which I think is the key to how to kind of rethink paradigms. But I wanted to put a plug for comparative work and it’s kind of in a similar vein of comparing institutions, comparing context, comparing histories.
And the same question, the same problem and I’m looking at this from a you know tech kind of lens and looking at tech markets, but obviously that I think is true of any market and industry. The way in which institutions operate really varies across regions and so there’s no one size fits all answer.
In Europe, people tend to emphasize a State more and might need to emphasize that maybe a bit less or rethink bureaucracy in certain ways, whereas maybe in the US there’s a need for more institutions.
And then, when we move to a place like Kenya, there are all sorts of other questions that arise on how do we trust government, and why should we trust private companies that may come from Western or are controlled by Western shareholders and so, who should make decisions there, and so you know, and so I think that comparative work is really important, and empirical work comparing institutions across regions also is key.
The sector specific approach is really striking when you read the works of the institutionalist and the legal realists, you know they conducted in depth studies and specific sectors and recognize that what might work and electric power doesn’t work for the manufacturing of shoes.
And it’s just qualitatively different from what you see many mainstream economists do today, where they just draw supply and demand diagrams, and say, well, we can use this tool to explain everything that’s happening to the economy which is absurd when you think about it for more than 15 seconds. Any other thoughts on what’s missing Brian.
I would just chime in for you, if there’s any you know people looking to students looking to do research I think there’s a frontier of this area that there isn’t a lot of activity, yet.
Is the intersection of i’m an economist so for the economist and for other researchers between the stratification economics. Antimonopoly stratification economics is as developed by scholars like William verity and Derek Hamilton looks at structural inequality is tied to his membership, you know black white inequalities, Male female inequalities and that’s sort of an area that I think we’re missing a lot of antimonopoly.
Or just particularly quick, there’s a book by a scholar Marcia Chatelain called Franchise: The Golden Arches in Black America and it’s about how policy tried to create more black entrepreneurship, rather than actually fostering truly independent businesses, they sort of gave black entrepreneurs opportunities that were sort of junior partners to giant white on corporations.
And so, who appropriated most of the benefits of the McDonald’s training wasn’t the black franchisees it was the corporate owners, so I think that’s sort of an area where, what do you think frontier research I think he’s more he’s more work.
Seeta Peña Gangadharan:
As somebody that feels again slightly outside of this domain, I’m not an economist, I’m a social scientist and I’m a minority in my field, in that I approach my research with participatory methodologies and so I guess what I am constantly struck by in these conversations is the relationship between some of the new emergent thinking on whether it’s a critique or an affirmative statement of what needs to be and the gap between that discussion and an assessment of the political landscape in which decisions get made and changes get made. And I feel like I’m lacking the inspiration there, like part of what is very challenging about holding space and holding a conversation about these issues is not that people on the ground don’t have anything to say there’s a lot to be said, it’s the translation and movement of these ideas and the impact of these ideas into real political change.
I feel like in an environment that is yes, as one of the co panelists said, very challenging lots of fires out there literal and figurative right, I think that sense of political powerlessness is really important to address alongside whatever emerging discourse we have run into.
I think one irony of antimonopoly, at least as far, is that it’s been very elite lead and technocratic, which is one of the critiques of the Chicago school and.
You know, at least, thus far, the reform project seems to be operating along very similar lines rather the aim seems to be to persuade decision makers, whether it’s judges, heads of agencies, or members of Congress, and there is a major disconnect between the current and popular politics, certainly a disconnect between popular movements and what’s happening in this fairly elite and narrow space in antimonopoly.
Seeta Peña Gangadharan:
I am struck because I live outside of the US. I’m really interested in if anyone is actually doing research on what sort of populace takes on antimonopoly and how that discourse and narrative is really being taken up within those populations.
Yeah I think that’s a really rich vein for exploration, yes, the second question for the panel flows from what you just said deeper so who are scholars doing cutting edge research and his work deserves greater attention. Once again, anyone can go first. And maybe this research is yet to be.
I think it’s a tough one to answer because you don’t want to leave people out. So i’ll just say, I think I don’t know that I can sort of come up with a list of people, but I think that maybe a partial answer to that question is the more that we create spaces like this, or the more that those of us who come from different disciplines have ways to interact around the research that we’re doing around the strategic thinking we’re doing.
I think one of the challenges, at least for me in academia, is that the focus is always on presenting your own research or on putting your own ideas forward and so there’s you know, several spaces, you know that that several of you are involved in that really do allow people to come together and have sort of more generative and collaborative, you know, conversations and I think the more that we could do that, like we’re doing today, I think we would be encouraged not only we’ll be building our own capacity but also be welcoming more people in to be part of a larger conversation about what we’re what we’re trying to accomplish with our economy.
Seeta Peña Gangadharan:
I want to jump in quickly to say that I really love the work of collection of feminist scholars mostly working in Europe, with one exception in Canada, Seda Gürses, Martha Poon, Helen Pritchard, Miriam Aouragh, and Femke Snelling, amongst others, I think, are doing, really, really interesting work around thinking about compute power and computational infrastructure.
And having that conversation has been really, or them opening up that conversation about compute power has been really eye opening with respect to the conversation about platform power. And our focus on data and what I like about that work and what I like about the work that Martha Poon has done, in particular, in particular, is to really get us thinking about how, as I had mentioned earlier, money is made from money by tech companies, and the ways in which that is de-democratizing, right? So it’s even harder to have a shareholder campaign if you would want that, but as a consumer, right, that means that more choices are being forced upon you, and so i’m really interested and inspired by that work. And what it, how it kind of causes me to think about companies and company behavior in a different way and innovation, too, right, because it’s almost as if it’s an innovation in making money, it’s not necessarily an innovation in tech.
That’s a really good point about innovation. It’s one of those words that’s created as categorically good innovation is good. But the reality is there’s good innovation, bad innovation and a great deal of the innovation we’ve seen in recent times and bad innovation, companies figuring out how to skirt, evade, violate, the spirit of many laws, so I think a critical engagement on. What innovation is what competition is really necessary and essential for the antimonopoly were to go forward in a coherent sensible public minded way.
I can add a couple of things, I agree.
Please go ahead, Elettra.
It’s really hard to come up with a list of so many scholars, they’re amazing, there are some scholars that Chair Khan mentioned that, of course, do incredible work, including here. I want to mention a few Europeans or English scholars that I’ve been following over the years that I think are thinking about things that are not necessarily discussed in the US. So people like Michelle Meagher. I’m currently thinking a lot about the boundaries or intersection between regulation and antitrust and I discovered the work of Niamh Dunne, at LSE who Seeta might know very well. That’s quite useful, interesting work from Europe right now. There are people in technology and antitrust and kind of at the intersection of tech and data protection and antitrust are really interesting Orla Lynskey, Inge Graef, and Ian Brown and people doing cooperatism work as well, like Morshed Mannan that I’ve worked with for a while and I highly admire his work and think that we should think more about cooperativism as well um so.
So yeah so that’s that’s the very partial list, and I wish I could mention more scholars from the global South and that’s something that me and my co authors are working on so maybe may be able to create such a list soon.
Wonderful, I heartily second the recommendation of Morshed’s work. I think it’s really cutting edge and cooperative governance is an important part of the antimonopoly, their historic antimonopoly program that is still, I think, existing only at the margins, but I hope that will change in coming years. So now we’ll segue to the audience Q and A and I’m going to use my moderator’s prerogative. We received a number of good questions here but I’ll start with the provocative question, one that has come up in other spaces.
Is the social control of production well socialism, if so, why is the antimonopoly movement shying away from engaging with socialist Communist thought to the best of my knowledge, more broadly, does the movement take capitalism for granted.
So you know, the thing about the words, the word socialism and capitalism, I’m not sure what people mean by them. Depending on you know what traditionally coming from they take on all kinds of different meanings.
I don’t think the government should own everything and a lot of times you know sort of like a standard article, you see, in some leftist publications is nationalize this, nationalized that. Now, your employer has an army, I’m not sure that’s really from a work perspective us where you want to go on, I mean I like social control because it’s sort of, I don’t think corporations should not exist, I think that there are a bunch of different ways to govern them, I think, private capital is too much power workers, not enough.
I don’t want to own my own business, I like being an employee, that’s sort of the risk profile that I like for my life. I don’t want to go to a bunch of meetings you know, to determine, you know what’s going to be sold enough to doughnuts I just want to be able to shop around, so I think you know there and.
You know that’s not the caricature of socialism, it’s just that I think that we should be talking about the specific sort of policies and programs we want to see, rather than like these blanket terms. So that’s why I like social control, not out of any animosity and and I think there is a fair bit, I wish there was more, and I would love there to be more engagement between antimonopoly and social democrats, democratic socialism, socialists. That would be very interesting, but so far, yeah, we haven’t… that would be a rich conversation.
Seeta Peña Gangadharan:
Can I ask a question that’s actually built on that because I get this term social control production, but you know it obviously has a history, etc, but just you know off the tongue it sounds formidable. Right, it does actually sort of spike kind of that connection, accurate or inaccurate, to socialism and communism. So i’m just curious if there have been any attempts to to think about what term could be applied, that would invoke a different imagination and different imaginary.
I think yeah if I can chime in on that I think that’s a great point and I think you know we didn’t really start this conversation saying this super clearly but you know we all have grown up in the water of neoliberal neoliberalism we’ve grown up in the you know the air surrounding us is this idea that markets are going to clear if only we remove obstructions and some people might think the obstruction is government, some people might think big obstruction is large dominant corporations, but in either case there’s this idea that we’re going for some kind of market supremacy or market clearing.
This goes to what Brian said about, “Well, okay, what do we mean by capitalism, you know, are we talking about neo liberal capitalism are we talking about state capitalism?” You know I…: that’s a whole other, I would need a couple drinks, I think, to really get into that level of political theorizing. That’s not what I do most of the day, but I think in terms of you know, see this point when we’re talking about you know social control of business, I think you know Steven Vogel has a phrase market craft, market crafting, which is supposed to evoke the idea of state crafting I think that there’s been a bunch of debates recently online where. You know, people are talking about productivism, you know how to be supply side progressives. I really think we need better language.
I don’t know what the better language is. I’m happy to be, you know, a democratic socialist in my politics. I agree with Brian, I’m not someone who thinks that the government should produce everything, but I do think the government should produce more things that it does now, but I think that this question of how to build an antimonopoly or you know, a movement for economic democracy.
To have social movements, people need to be able to see each other and recognize each other as part of the same social movement, that’s really fundamental to how we see social change happening In the world. I think part of what you know I like to talk about economic democracy because it’s sort of ringing some bells for me, but I do think we need more clarity about the type of economy that we’re trying to envision and create so that we can create the social movement, where people all feel part of the same effort ut I don’t know what to call it.
So my two cents on this. I’m currently working on this question of interest and regulation, what is the relationship between these two and kind of theories that focus on efficiency or obstruction precisely and kind of perfect competition and how bad they are maybe trying to bridge divides between these areas. And so I tend to think about the question of antimonopoly as divided into two groups of problems, one is a descriptive problem can we remap doctrines of law in ways that make better sense of the issues I think, or rather than give regulators more possibilities on how to act in markets…
Notwithstanding or no matter their normative values, whether they’re socialists, whether they’re not socialist right it doesn’t matter, we still need a framework that allows regulators to better address questions that emerged in a rising market.
Then there is a separate question that is okay. So what are the norms that should guide the regulation and markets or the regulation of production?
And I think that’s a separate question and can be answered in various ways and I think people in the antimonopoly movement might hold very different views on how exactly when needs to regulate these productive systems. And even within say the label socialism, and I think there are visions that are very much about a plan socialist economy, and then the revisions that are much more cooperatives based. There are much more about bottom up worker owned enterprises and kind of small units of production, and that can be a socialist economy as well, right? Do we want to call those things the same? I don’t know. and which one is better? I mean I’m not going to discuss that here. But but, but I think that’s how I would divide the two.
I just, I would echo when on economic democracy, I think it doesn’t have some of the historical baggage some of the other terms do. Maybe unfortunate negative associations that are held in the United States, and I think it also importantly recognizes the need for institutional diversity, you know we do want state ownership and certain thing, you know… infrastructures, for example, it makes a lot of sense for the Federal Government to own and operate the power grid, but in other cases, we might want much smaller economic units owned and controlled by workers only control by communities, maybe some type of joint governance agreement arrangements.
I personally like economic democracy but i’m only the moderator so i’m not going to talk too much. There are a number of interesting questions in the Q and A so. This is really in Lenore’s wheelhouse so I can’t help but ask it. What role could federal corporate chartering play in structuring and enforcing more democratic enforcing a more democratic and sustainable economy for the common good day.
Great point, it could be a necessary but also completely insufficient tool to make sure that we actually have the potential ability to regulate large corporations and regulate corporate governance. So I’ll just say something that even many people working I think in antimonopoly or antitrust spaces seem to not know is something that several of you mentioned at the outset, but is deserving of much further research and investigation by anyone interested.
The early establishment of the FTC was a social reform movement that went hand in hand with movements for federal triggering of large corporations and really the process by which we got the FTC and did not get federal chartering of large corporations was the type of political maneuvering that we are quite familiar with today watching the demise of build back better they were political compromises that happened that enabled states to continue to be the chartering, have chartering authority over corporations, which has led to the situation today.
For example, the fight happening right now over whether or not Elon musk is going to be forced to buy Twitter is happening in Delaware, a state with 800,000 people, rather than happening in a federal government space. So there’s a lot of… you know, history here that the, you know, why we have state triggering and corporations and not federal triggering is completely not an accident but completely historically politically contingent not intentional, not because state chartering is somehow better.
And so you know there’s been several efforts over the last couple of years principally by Senator Elizabeth Warren to bring forward legislation and the accountable capitalism capitalism act, they would actually ensure that federal corporations are, or that large corporations are federally licensed for charter we could get into lots of details there, but I think this is absolutely necessary, and also, of course, will be completely insufficient to then, you know, make the kinds of changes we want to see but it’s really an important enabling step.
Any other thoughts on federal chartering of corporations. The promise, the perils.
Seeta Peña Gangadharan:
I don’t know a whole lot about it, but I’m just kind of imagining having this conversation with communities that we work with and I’m wondering how I’m going to be telling this story. It sounds like a tough sell to be honest, because it feels like we will see the rise of many intermediaries that will gain the process.
Unfortunately, I think that contributes to widening the sense of political cynicism over the types of solutions that are being sought and not necessarily trickling down to benefits at the Community level.
We do have one good example of federal chartering so since the National Bank act of 1863 many banks, especially the biggest banks have been nationally chartered and the general assessment is that the regulatory system worked reasonably well up with some obvious imperfections and exclusionary defects for about 40 years in the 30s in the 70s, but on the whole of 150 years or 160 year history of federal chartering of banks, has not been particularly successful, or you know modeling, necessarily, want to tout in support of federal chartering or forums.
So turning to other questions in the Q&A, there’s one specific from Brian but obviously open to the entire panel. Brian contended that the first antimonopoly movement was the antitrust movement, what about the pre civil war land reform movement, it was a genuine mass movement and gave us the homestead act of the land grant colleges.
I guess you can always find antecedents, I guess further history, that’s a good example. I like many of these, so I think more than the Sherman Antitrust Act that’s you know problematic because the homestead Act and the and the land grant colleges were effective on land from from you know sovereign nations.
I don’t think I could see it as a conversation of monopoly. Just like the first Labor legislation we ever passed was the Chinese exclusion act, I’m not sure that it’s antecedent but it’s not one, I think we want to emulate or or or repeat, I guess, I would say.
Other panelists thoughts on your pre civil war? Here’s an interesting question that just came in. It seems like unions are another issue where researchers at first to define the world which antimonopoly seeks to build. How do you think the Labor movement and large unions connect to the antimonopoly movement? Brian? Audience members should know that Brian has written many great articles on this exact questions that you should read them.
So i’ll say this, I think a lot of the progressive anti trust is I don’t think they chose the name but it’s been called Neo-Brandeis and Louis Brandeis was not a perfect friend of Labor but he did understand the Labor movement. He actually brokered what’s called the protocol of peace, which was the first, collective bargaining agreement and the garment industry of New York City. And his sort of vision for markets that they will be co-governed by strong unions.
So his way of dealing with concentrated corporate power was not just breaking up corporate power but also bringing workers to the table to have sort of a co-governance of both the internal management of the corporation, but also co governance of the market. So I just flag two things I think are happening today that are very much of the brand nicely in spirit.
In California there’s a movement for fast food workers to get sectoral councils, which would include both small business franchisees and the corporation’s McDonald’s and representative workers to set minimum standards for the industry that is a very sort of aggrandizing idea. And the other one, unfortunately didn’t pass the session legislature, but in New York City nail salon workers have been pushing for a sectoral regulation that will govern not just the wages, but also the prices.
One way that can raise wages is to allow all the nail salons to merge into one nail salon, they can raise prices to consumers and then they can pay wages. Another way is to allow all the small shops to continue to be small, but have a way so that they don’t have to compete, by fighting against each other to run sweatshops. They can all agree, this is the minimum price we’re going to charge, this is the minimum wage.
I don’t have a comprehensive “here’s the plan,” Labor unions could do that themselves, but those are just a couple of examples, not to mention all of the Amazon, you know organizing and work like that that’s going on.
Any other thoughts on the connection between labor and anti-monopoly?
Seeta Peña Gangadharan:
I will just jump in to say, stay tuned right. I mean I think what the research that we’re doing with our data bodies isn’t explicitly about movements, but we’re trying to make these connections and conversations happen. So yeah, stay tuned.
Great thanks so much for stimulating discussion everyone. I’ve learned a lot and it’s been very provocative and interesting. We’ve already gone nine minutes over so i’ll turn it over to becky to wrap up this great event.
Thanks so much Sandeep and thank you so much for everybody for sticking with us going over a few minutes for joining us today, thank you to our esteemed panel to our speakers for all those rich nuggets of information and, like some you’ve said many provocative questions; Chair Khan and Commissioner Slaughter at the FTC for their remarks. The Law and Political Economy project, especially Corinne, Amy and Raul and the folks behind the scenes at ESP– Cara, Michael, Christiaan, and Gabi for helping us put together a fantastic event.
If you’d like to follow our grantees’ work as they conductor their research, we’ve dropped their Twitter handles in the chat and we can reshare that again. And you can also be sure to follow us on Twitter at Economic Security Project and LPE underscore Project. The recording of this event will be available on our website soon, and I believe the audio will also be available on Tech Policy Press, their podcast, and this was probably not our last event on this topic, so please stay tuned. Thank you so much.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.