Anyone who works in government has a favorite metaphor for major policy change. Some talk about glaciers being redirected; I prefer the image of turning a battleship. The point is that it isn’t easy and may not happen at all, but if it does, the effects are lasting and hard to undo.
As Joe Biden reaches the end of his presidency, there is one area where he undeniably turned the battleship: American antitrust law and policy, also known as anti-monopoly. Having spent two years working on the project within the White House, I concede some bias. But whatever else may be remembered or forgotten about the past four years, Biden’s antitrust achievements mark a decisive moment in the history of the American anti-monopoly movement, and by extension, the nature of American capitalism.
Once a major part of American economic and political life (the 1912 presidential election centered on it), by the 21st century, antitrust law had shrunk to a shadow of its former self: a cautious regime, rarely enforced. Coming into office four years ago, Biden saw many reasons to undertake a major reboot. The main reason was the simplest: The problems that antitrust laws were originally intended to remedy—economic imbalance, lasting market power, growing divides between rich and poor—were glaringly obvious.
The warning signs were in fact already flashing by the mid-2010s, when Barack Obama’s Council of Economic Advisers began documenting the twin problems of economic concentration and rising inequality. At the street level, Americans were (and remain) unhappy about things such as rising drug costs, the price of essential services, and other symptoms of an economy in which so many industries—hospitals, cable providers, airlines—had consolidated, in much of the country, into just a few firms. The surprise success of the 2016 Trump campaign was, in part, a manifestation of the public’s anger at the unfairness of the modern economy.
These are all issues that the antitrust laws were enacted to address. The goal of antitrust has never been to replace capitalism but to save it from itself—to promote the kind of free-market economy that serves as a decentralized and balanced engine of wealth creation.
In early 2021, Biden agreed with White House staff that bold reforms were needed to complete that turn in policy begun during the later Obama administration. The president wanted to define it as a pivot away from the 1980s and Ronald Reagan, whose administration, under the influence of the legal scholar and judge Robert Bork, entrenched an approach to antitrust that largely involved ignoring the laws as written in favor of promoting a pro-corporate version of “efficiency.” As Biden put it, “Forty years ago, we chose the wrong path, in my view, following the misguided philosophy of people like Robert Bork, and pulled back on enforcing laws to promote competition.” The experiment, Biden said, had run its course, and he announced, through executive order, a return to the older antitrust model championed by the Roosevelts—Presidents Theodore and Franklin D., both of whom saw antitrust as key to balancing economic power.
The first step of this plan was appointing officials—Jonathan Kanter at the Department of Justice and Lina Khan at the Federal Trade Commission—who were deeply committed to the antitrust revival and to enforcing the laws as intended by Congress. Those appointments resurrected the tradition of the “trustbuster”—government enforcers who are genuine adversaries of monopoly. For Kanter and Khan, earning the enmity of the Chamber of Commerce has been a badge of honor.
Khan and Kanter rebooted the Rooseveltian tradition of bringing “big” cases (a rarity since the Clinton administration’s case against Microsoft’s monopoly). Big cases have structural ambitions: They seek to shake up an industry, whether by attacking a monopoly or blocking a merger that threatens to create one. To the surprise of many detractors, Kanter and Khan brought and won a string of these cases, including a major monopoly suit against Google (originally filed by the Trump administration) and successful challenges to major mergers by airlines (the first such legal victory ever), pharmaceutical companies, grocery giants, and publishing houses.
As in baseball, swinging for the fences risks big losses, and many critics predicted that the campaign would be rejected wholesale by courts. Kanter and Khan decided to take the chance, based on the theory that an agency unwilling to risk any losses earns a place in the “chickenshit club.” By the end, they had taken both big losses and big wins—but, when added up, there were more of the latter. In all but a few cases, the courts, even in conservative districts, have tended to accept the approach of enforcing the law as written. In merger cases, the agencies won more than 30 challenges (including many mergers that were abandoned when challenged, without going to trial), and the anti-monopoly ruling against Google is the most significant such victory in decades.
Meanwhile, back at the White House, we sought to push the antitrust revival forward by enlisting more parts of the government in the effort, borrowing from similar ideas undertaken by FDR and Obama. We set up something new: a competition council inside the White House, chaired by the president, designed to push agencies to do what they could to fight imbalances in the economy.
The first real test for our White House–driven effort was hearing aids. The president in 2021 tasked the Department of Health and Human Services with writing a rule that would allow hearing devices to be sold over the counter to treat mild to moderate hearing loss. At the time, despite years of pressure and even congressional action, hearing aids remained available by prescription only, reducing available options and allowing manufacturers to keep prices artificially high. This naturally slowed uptake among the millions of Americans with compromised hearing. Today, thanks to the administration’s efforts, there’s a healthy market for over-the-counter hearing aids. The comparative ease of market entry was illustrated most recently by Apple’s decision to include a hearing-aid function in its new AirPods Pro.
A second White House effort centered on “junk fees,” those annoying additions that make prices unclear, interfere with competitive markets, and infuriate nearly everyone. The Consumer Financial Protection Bureau, headed by Rohit Chopra, took the lead with a rule cracking down on junky banking and credit-card fees, which are expected to save Americans billions of dollars in random charges.
Four years of organized action, involving the sustained labor of a lot of people, have put antitrust and competition policy on a different course. That new course is, I would submit, more broadly in line with what Americans believe in: an economy in which monopoly is prevented or fought, not tolerated or encouraged. It has upset those who preferred the more laissez-faire approach of the previous 40 years, yet there is strong reason to doubt that a more monopolized economy has been good for our nation.
Will the Trump administration reverse all that was done, dismissing the ongoing cases and returning things to the way they once were? No doubt many people, including some of Trump’s wealthier supporters, would relish a nullification of the law and a merger bonanza. But a party centered on economic grievance and the working class runs serious political risks if it promotes the monopolization of the economy at the expense of its voting base.
Antitrust law has never been partisan. Republican presidents, including Theodore Roosevelt, Richard Nixon, and Trump himself, commenced many of its biggest cases; it was the Reagan administration, despite its broader anti-enforcement shift, that ultimately broke up AT&T. Many outsiders seem to wrongly assume that incoming President Trump will be personally involved in assessing every merger. The fact is that the turn toward a tougher antitrust regime better reflects where the public is: No broad constituency wants more monopolies or higher prices for life’s necessities.
As politicians and historians know, but as many can forget, there is a fundamental difference between political and policy cycles. The politics of our moment are divided and subject to frequent reversals of fortune. But policy is a longer game, and since the Great Recession, there has been an undeniable shift toward questioning the wisdom of laissez-faire capitalism, globalization, and other neoliberal tenets from the 1980s and ’90s. However divided our politics may be, there is consensus that the economy should be fairer and its returns shared by more people. That is why the rehabilitation of antitrust will likely be a lasting legacy of the Biden administration.
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