By: Tom Hebert
President Joe Biden has nominated antitrust attorney Jonathan Kanter to lead the Department of Justice’s Antitrust Division. Kanter, who has slammed the long-held consumer welfare standard as “judicial activism,” is the wrong choice to lead the Antitrust Division.
A chorus of leading Democrats immediately praised Kanter’s nomination. Sen. Elizabeth Warren (D-Mass.) tweeted that Kanter has been a leader in “[strengthening] competition in our markets.” Left-wing academic Zephyr Teachout said that Kanter is an “extraordinary choice.” Reps. Jerry Nadler (D-N.Y.) and David Cicilline (D-R.I.), leaders in the House effort to weaponize antitrust law, also praised his nomination.
From day one, the Biden Administration and the Democrat Party have not dealt in good faith on antitrust policy, especially with nominations. Lina Khan was confirmed last month in a 69-28 vote, with 21 Republican Senators voting in favor of her confirmation.
Khan’s confirmation was an unprecedented bait-and-switch operation. Biden nominated Khan to serve as an FTC commissioner, not as chair, and withheld that information throughout the entire nomination process. Hours after the confirmation vote, Biden elevated Khan to FTC Chair, blindsiding Republicans.
Given this lack of transparency and good faith, no Republican should vote to hand the Biden administration another antitrust victory.
The DOJ Antitrust Division shares antitrust enforcement authority with the FTC, and Kanter has called Khan a leader of a “new golden age of antitrust enforcement.” This is troubling given that Khan has worked aggressively to shed all bipartisan limits on the FTC’s antitrust authority with barely a month on the job.
Additionally, Kanter is a longtime opponent of the consumer welfare standard that has undergirded antitrust law for over four decades. Under the standard, antitrust cases are generally only brought against companies that are harming consumers through tangible effects like high prices, reduced product quality, or lack of choice. Antitrust enforcers must also consider whether there is a procompetitive justification for the business conduct in question, and whether the conduct results in countervailing benefits to consumers and competition.
The consumer welfare standard protects the competitive process, not individual competitors in a marketplace from being beaten by rival firms. This neutral application of antitrust law fosters the robust competition that delivers better prices and better choices for all Americans.
Kanter would abandon the consumer welfare standard, which developed through decades of common law and expert consensus, in favor of a European-style antitrust approach that ignores harm to consumers and focuses on harm to inefficient competitors. Kanter has slammed the consumer welfare standard as “judicial activism” and “central planning,” and argued that courts should not consider economic efficiency when ruling on antitrust cases.
Antitrust law before the consumer welfare standard was an incoherent mess, and all manner of routine business conduct was considered presumptively unlawful. Enforcers attacked companies purely for their size while ignoring benefits they delivered to American shoppers. Philosopher-king judges handed down incoherent rulings designed to punish political enemies or reward political allies. Famously, Supreme Court Justice Potter Stewart remarked that the only consistency he could find in antitrust law was that “the government always wins.”
The left wants to destroy the consumer welfare standard precisely because it is a bulwark against judicial activism. Without the standard in place, antitrust law would revert back to the broken tradition of the mid-20th century. Companies afraid of abusive antitrust litigation would pull their punches with competing with rivals, robbing us of the robust competition that delivers the best choices and lowest prices for all Americans. Government bureaucrats would win, American shoppers would lose.
If confirmed, Kanter would work hand-in-glove with Lina Khan to attack the consumer welfare standard and turn the clock back decades on antitrust law. For these reasons, no Republican should vote to confirm Kanter.