Antitrust Establishment Confused as Big Tech Foe Lina Khan Gets Overwhelming Support from Congress

The antitrust establishment is confused and upset. Good.

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One of the more remarkable appointments Joe Biden has made is that of Lina Khan to the Federal Trade Commission, which is one of two government departments tasked with enforcing antitrust laws. Khan made her bones exposing how lax antitrust law enabled Amazon’s dominance, so when he nominated her, the antitrust establishment was utterly horrified. “Putting more extremists on the commission is not the way to do better,” said University of Pennsylvania law professor Herb Hovenkamp, who is probably the most important antitrust scholar of the last generation and whose work has been essential in eroding the foundations of anti-monopoly law.

Hovenkamp, who is generally a booster of large technology firms, told the National Journal that Khan’s “radical views” make it hard to see how she could get any Republican votes, and she might even fail to be confirmed, as a Democrat or two might have doubts about her ability to do the job. Hovenkamp is not some random law professor. Supreme Court Justice Stephen Breyer once noted that advocates would rather have “two paragraphs of [Hovenkamp’s] treatise on their side than three courts of appeals or four supreme court justices.” Hovenkamp has been cited by the Supreme Court in 38 different cases, far more often than, say, Robert Bork. His thunderous anger at Khan represents a broad swath of the center-left antitrust establishment’s frustration towards the broader anti-monopoly movement.

It’s not just Hovenkamp. Fiona Scott Morton, a Yale Business School professor (adjunct at the Law school) who started a center at her university to study monopolies after working in the Obama administration’s often criticized antitrust division, also had choice words about Khan. “Having radical ideas is fun, but it’s not what the day job is going to be in terms of bringing cases and voting on cases and winning cases,” she said. "Lina Khan may advocate for breakups as a commission, but what’s the authority under which you would do that? The FTC can’t just announce that they’d like to break up some corporation.” Morton’s public lobbying against Khan is likely ideological, not a result of her consulting contracts with Amazon and Apple. But it is still shocking.

So what happened? Did Hovenkamp’s predictions that Khan would face unified Republican opposition, and perhaps Democratic opposition, pan out? No. Two days ago, Khan not only got every Democrat in the Senate Commerce Committee, but eight out of twelve Republican votes. That means she’ll probably get something on the order of 70-80 votes on the floor of the Senate.

That’s a power move for a number of reasons.

One, it means that Khan is going into the FTC with a mandate from the Senate to take on big tech. The Senators know who she is, they questioned her on what she believes, and they voted for her. Officials at the discredited commission know that when she speaks, she is commanding significant political clout.

Two, Khan’s Senate vote flips the traditional political axis. Traditionally it’s been hard to get progressives into positions of authority, which is why Hovenkamp assumed that Khan would have a rough political road. But in this case, it’s precisely Khan’s aggressive take on the need to break up big tech that drew interest from the GOP.

And three, the main critique of the anti-monopoly movement on the right is that it’s fake and cynical, a ruse to pressure big tech into better treatment of conservatives rather than to make real policy changes on concentrated power. Now that significant numbers of Republicans have voted for Khan, there is no way to dismiss tech skepticism on the right as merely superficial.

Broadly speaking, it’s not Khan or anti-monopolists who are considered fringe, its law professors like Herb Hovenkamp, holdovers from another era when supporting monopoly power made you one of the cool kids.