A Prominent Corporate Attorney Is Now Prepared to Take on Corporate America.
How Jonathan Kanter, the Biden administration's antitrust head, evolved into a progressive opponent of Big Tech.
Jonathan Kanter is an improbable populist economist.
He has spent the most of his career in prominent legal firms, where he has represented large corporations. And it's been profitable labor. He earned more than $20 million in four years as a partner at Paul, Weiss, Rifkind, Wharton & Garrison before leaving to form his own firm in 2020. He worked for companies such as Microsoft and News Corporation.
Mr. Kanter, 48, is now one of the most visible leaders in the progressive movement's growing campaign to rein in large businesses. President Biden selected him in July to be the Justice Department's top antitrust enforcement official, a move applauded by the left.
Mr. Kanter's ability to reconcile his past of working for large corporations with his progressive posture now is expected to come up during his Senate Judiciary Committee nomination hearing on Wednesday. Additionally, there are concerns regarding the extent to which his prior work clashes with Justice Department investigations and prosecutions.
He has been an anti-Google legal warrior for years while representing Microsoft and other corporations. However, if confirmed, he will inherit the department's lawsuit against Google, which was filed last October and accuses the business of illegally abusing its market position to maintain its monopoly in internet search and search advertising.
"Google is the most consequential case the Justice Department will handle during his term," William Kovacic, a George Washington University professor, said. "Will he be tainted?"
Mr. Kanter, who declined to be interviewed for this piece, has stated that his work with Microsoft and Yelp, among others, has taught him about the risks of economic power, as exemplified by the advent of Big Tech. Additionally, it has pushed him to advocate more severe antitrust action in order to rein in that influence.
Progressives have repeatedly pressured the Biden administration to appoint individuals with no prior business links. "We urge you to refrain from nominating or hiring corporate executives, lobbyists, or prominent corporate consultants for high office," many consumer groups and antitrust campaigners, including MoveOn and Demand Justice, wrote in a November letter.
However, they have made no objections to Mr. Kanter. His views align with those of other progressives, like Lina Khan, the newly appointed chair of the Federal Trade Commission, and Massachusetts Senator Elizabeth Warren, a vocal supporter of Mr. Kanter. He counseled Ms. Warren during her unsuccessful presidential campaign last year.
Ms. Warren lauded Mr. Kanter's nomination as "tremendous news for workers and consumers," noting that he has been a "pioneer in the struggle to rein in consolidated corporate power."
Among his other supporters is Tim Wu, the White House's top counselor to the president on competition policy, who has advocated for the breakup of large technological businesses. When Mr. Kanter was nominated, fans adorned coffee mugs with "Wu & Khan & Kanter," a play on the name of a legal practice.
Numerous progressives feel that antitrust enforcement should be completely rethought. They feel that the long-established standard for determining whether a company's market power was detrimental — consumer welfare as measured by product pricing — is excessively restrictive and out of sync with the current digital economy.
Rather than that, they argue that antitrust law should be expanded to encompass the impact of corporate activity on workers, small firms, and even the flow of news and information on how public debate is shaped. They aim to make it considerably more difficult for large corporations to acquire smaller ones that could become competitors in the future. Additionally, they argue that dismantling Big Tech companies should be considered.
Progressives regard themselves as champions of new thought rather than economic technologists. “It begins with a movement,” Mr. Kanter stated at a 2017 Center for American Progress conference. "And it is just what is required."
Converting courts to the progressive cause appears to be a formidable task. For years, antitrust decisions have tended to favor business defendants. However, progressives argue that this is partially because suits testing their theories about the behavior of digital markets and the necessity for more robust antitrust enforcement have not been brought.
Mr. Kanter's legal knowledge and skill, they assert, will be strengths in that effort.
He is widely regarded as an accomplished attorney, and his candidacy has garnered bipartisan support. Nine former antitrust division leaders of the Justice Department wrote to the Senate Judiciary Committee encouraging the Senate to approve Mr. Kanter. Joel Klein, who held the position during the Clinton administration, and Christine Varney, who held the position during the Obama administration, are among them. However, Republicans joined the endorsement, including former Reagan administration official Charles F. Rule and Trump administration official Makan Delrahim.
Mr. Rule stated in an interview, "I disagree with him." "However, he possesses the ideology they seek, and he ranks among the generation's greatest antitrust lawyers."
In 2020, Mr. Kanter resigned from Paul, Weiss. His growing relationships to corporations that filed competitive complaints against Big Tech companies exacerbated the firm's conflicts of interest. While Google is not a client of Paul, Weiss, Apple is.
If he joins the Justice Department, legal experts say, the issue of conflicts would likely be one of appearances rather than requiring Mr. Kanter to disqualify himself from the Google case. They argue that the conflict does not disqualify Mr. Kanter because the Justice Department's function is that of a prosecutor and Mr. Kanter is not switching sides but rather acting as a Google adversary on behalf of the government.
However, it is possible that Google will raise this issue during the course of the lawsuit's trial. Similarly, legal experts regard Amazon's request that Ms. Khan, a vocal critic of the e-commerce behemoth, recuse herself from F.T.C. investigations of the firm as a public relations maneuver for the time being — and maybe an issue to bring in court later.
Mr. Kanter would most likely be required to recuse himself, they assert, if the Justice Department conducted an investigation into accusations against Microsoft, which he represented as a corporate defense lawyer.
Microsoft, which was the subject of a federal antitrust lawsuit in the 1990s, has thus far dodged the scrutiny lavished on its Big Tech rivals. However, Slack Technologies filed a complaint with the European Commission last year alleging that Microsoft illegally linked its collaboration software, Microsoft Teams, to its dominating Office productivity program in an attempt to squash upstart rival Slack.
"I believe Kanter's prior expertise will be a plus, not a liability," said Charlotte Slaiman, competition policy director at consumer advocacy group Public Knowledge.
Mr. Kanter began examining Google at Microsoft's request in 2007, during the Federal Trade Commission's assessment of Google's proposed acquisition of DoubleClick, an advertising technology business. Microsoft and Mr. Kanter contended that Google would gain a formidable instrument through the acquisition of DoubleClick to leverage its strong position in search and search advertising into online display advertising — and that the transaction should be prohibited.
Both the Federal Trade Commission and the European Commission approved Google's $3.1 billion acquisition of DoubleClick.
Later in his career, while still representing Microsoft, Mr. Kanter persuaded the Federal Trade Commission to bring an antitrust lawsuit against Google. The F.T.C. decided against it in 2013.
Both of these were setbacks for Mr. Kanter, and he concluded that antitrust was not keeping pace with economic trends.
Mr. Kanter stated in 2018 Senate testimony, "Policymakers should vigorously investigate emerging antitrust issues to ensure that US antitrust legislation stays relevant to the reality of today's economy and society."
Mr. Kanter spoke out more frequently in 2017, not only in congressional testimony and before left-leaning groups, but also at the conservative Federalist Society.
Former colleagues frequently disagree with Mr. Kanter's positions, but they respect him. Mr. Rule, a former Reagan administration official, worked with Mr. Kanter at three legal firms for over two decades. "While I disagree with his worldview, I believe his convictions are real," Mr. Rule, a partner at Paul, Weiss, said.