The Senate voted 68-29 on Tuesday to confirm Jonathan Kanter as Assistant Attorney General of the Department of Justice’s Antitrust Division.
Progressives cheered President Joe Biden’s decision to nominate Kanter, completing the trifecta of antitrust reformers whose names are printed on coffee mugs. Lina Khan, the Federal Trade Commission Chair, and Tim Wu, the National Economic Council advisor are the others.
As the DOJ’s new antitrust chief, Kanter will inherit a lawsuit against Google filed during the Trump administration. But it’s unclear if Kanter will recuse himself from the case, given his past work for Google rivals, including Yelp and Microsoft.
Kanter informed lawmakers that he would consult with ethics officers at the DOJ regarding recusal if confirmed. He would still be able to appoint deputies to support his antitrust approach.
Kanter has the support of senators from both sides of the aisle. They have argued that too many tech companies hold an excessive amount of power. Kanter’s confirmation was supported by several Republican senators, including Sens. Chuck Grassley (R-Iowa) and Mike Lee (R-Utah), were the ranking members of the Judiciary Committee’s antitrust subcommittee and its Judiciary Committee, respectively.
His nomination had previously advanced out of the Judiciary Committee in a voice vote.
Sen. John Cornyn , R.Texas was the only member on the Senate Judiciary Committee to request to be marked as voting against Kanter’s advancement to the floor. Cornyn stated that while he shares some of Kanter’s concerns about the tech industry and supports legislation to curb its influence, the DOJ’s Antitrust Division covers more than just Big Tech. “
Cornyn stated that he is troubled by Kanter’s criticisms of the consumer welfare rule, the prevailing judicial framework that has governed antitrust rulings for decades. He is also hesitant about the “broad” standard Kanter advocates. Antitrust practitioners and scholars who are reform-minded argue that the standard, which looks at whether prices go down or up for consumers, is too narrow to evaluate modern market realities such as those created by digital platforms. Cornyn stated that Kanter’s willingness to use antitrust enforcement to strengthen labor rights is inappropriate for this statute.
“I share Mr. Kanter’s goal of making sure that markets do work for the American people, but I don’t support undercutting important antitrust legal principles in the service of short-term political goals,” Cornyn said.
Sen. Amy Klobuchar ,, chair of the antitrust committee, responded to Cornyn, pointing out the support Kanter received from Trump’s antitrust chief Makan Delahim. Delrahim was one of the nine former DOJ antitrust chiefs who signed a letter to Judiciary Committee leaders encouraging Kanter’s swift confirmation.
“Overall, he is where this committee is in terms of how we’ve talked about this,” Klobuchar said of Kanter. “This is a moment when we can unite in support of a nominee, just like I did for Makan Delrahim when Donald Trump nominated them because I understood that we had to move forward even though he may not have been my first choice for Antitrust. “
Once Kanter gets started at the Antitrust Division, businesses and their lawyers will be watching closely for policy signals and indications of how he’ll steer the organization in line with, or differently, from Khan’s FTC. While Khan and Kanter were both considered progressive favorites before their nominations, Kanter’s experience has placed him in close proximity of the type of lawyers who will bring competition and merger concerns before the agency. Kanter worked at the law firm Paul, Weiss, Rifkind, Wharton & Garrison before he left to start his own practice. Khan, the youngest person sworn in to lead the commission at age 32, came from a teaching job at Columbia Law School after helping to write a report for the House Judiciary subcommittee on antitrust on competition in digital markets.
Khan already has implemented many policies on the competition side that have left lawyers scratching their heads. For example, under her leadership, the FTC has begun asking broader questions about the potential impacts that transactions could have, like on labor markets. Although some antitrust experts say such questions don’t directly relate to evaluating harms to competition, the FTC has indicated that it wants to expand its view of the impact of competition.
Kanter indicated that he may not take the same approach. Lee, antitrust subcommittee member ranking, asked Kanter if he would ask antitrust subjects about their ESG (environmental social and governance) policies when evaluating competitive harm. Kanter stated that he doesn’t see any situation where ESG policies are not related to competitive issues being relevant to antitrust enforcement.
The Antitrust Division is jointly supervised by the FTC in civil antitrust cases and merger review. Clearance is a process that allows agencies to divide their work. Clearance is often based on the agency’s experience in a particular industry. For example, hospital mergers often fall to the FTC. Some industries, such as tech, are more complicated because each agency has extensive experience in these matters.
Clearance has been a point of contention between agency heads as recently as during the Trump administration between then-FTC Chair Joe Simons and then-Antitrust Division chief Delrahim. The two ended up splitting ownership of tech antitrust investigations, with the FTC taking the lead on Facebook and Amazon and the DOJ taking Apple and Google, as multiple outlets reported in 2019.
Kanter stated in written responses to the record that he would “enforce the efficient and proper divisions of responsibility between DOJ and FTC, and avoid unnecessary duplication.” He also referred to his past work as an FTC lawyer and said, “I am hopeful that I will enhance collaboration between these agencies. “