Politico Playbook broke the news this morning that President Joe Biden will nominate Columbia University legal scholar Lina Khan to the Federal Trade Commission. On the heels of last week’s news that Columbia University law professor Tim Wu will join the National Economic Council as a special assistant to the President for technology and competition policy, advocates for antitrust action against technology companies are encouraged.
“Lina Khan going to the FTC and Tim Wu going to the White House are two extraordinary, powerful choices by Biden,” tweeted Fordham law professor Zephyr Teachout, author of the book Break’em Up: Recovering Our Freedom fro Big Ag, Big Tech and Big Money. “It gives hope that the last 40 years of consumer welfarism in antitrust could be on its last legs, and that we can start enforcing existing laws with vigor.”
“The open question is whether Lina Khan is nominated for Chair or a normal slot,” tweeted the American Economic Liberties Project’s Matt Stoller. “Khan would be right for FTC Chair and that would signal a massive shift.”
The route from Khan’s “command post” at the end of library stacks on antitrust law at Southern Methodist University has been swift. In 2017, then a law student, Khan published a paper, Amazon’s Antitrust Paradox, in the Yale Law Journal. Arguing that “the current framework in antitrust—specifically its pegging competition to ‘consumer welfare,’ defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy,” Khan set out to change how we define harms in the context of platform economics.
That required looking at companies such as Amazon differently- not merely as companies, but as institutions with the power to challenge democracies. Khan drew on ideas advanced by Supreme Court Justice Louis Brandeis. “That was the insight of Brandeis,” Khan told The Atlantic’s Robinson Meyer in 2018. “For most people, their everyday interaction with power is not with their representative in Congress, but with their boss. And if in your day-to-day life you’re treated like a serf in your economic relationships, what does that mean for your civic capabilities—for your experience of democracy?”
Khan went on to serve as one of the chief authors of the House Judiciary Subcommittee on Antitrust Investigation of Competition in Digital Markets staff report published in 2020, which included “proposals to: (1) address anticompetitive conduct in digital markets; (2) strengthen merger and monopolization enforcement; and (3) improve the sound administration of the antitrust laws through other reforms.” Hearings in that subcommittee are ongoing.
The appointment may indeed signal that tech companies will shift to a more aggressive strategy to preserve their interests. “I really don’t think the tech companies expected Biden to be this direct and aggressive with his antitrust-related appointments,” tweeted Washington Post tech reporter Gerrit De Vynck. Indeed, lobbying firms are likely preparing for a busy and lucrative season.
“Over the past four decades, deindustrialization, the rise of the tech economy and the weakening of antitrust enforcement have sorted the country into a small number of winner-take-all cities and a much larger number of left-behind cities and towns,” writes Alec MacGillis, the author of a book on how Amazon has changed the economy of American cities. With fresh thinking at the FTC and in the White House, perhaps that trajectory is about to change.
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.