Experts Hope Kanter Fills DOJ Antitrust Void -- This Year
The Senate should move quickly to confirm Jonathan Kanter as DOJ Antitrust Division chief so he can fill leadership gaps at the department, antitrust attorneys said in interviews. Some expect Kanter to get a 2021 vote, given support from the Senate Judiciary Committee last week (see 2110280044).
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The office of Senate Majority Leader Chuck Schumer, D-N.Y., didn’t offer a timeline for his confirmation vote Monday, an aide noting “he only came out of committee on Thursday.” Reached after the committee vote, Sen. John Cornyn, R-Texas, the lone no vote, told us he has the same concerns about Kanter that he does about the FTC under Chair Lina Khan: Politics could be driving antitrust policy. “I’m concerned that he basically wants to change the law,” said Cornyn. “Instead of a consumer benefit standard, he wants to use it for a more vague [standard]. I fear more political, ideological slant.”
“I’m no big fan of Big Tech and the way they’ve handled themselves, but this is much bigger than that,” said Cornyn. “I’m very concerned about him, but it looks like he’s probably got enough support to get confirmed.”
Sen. Josh Hawley, R-Mo., said he’s willing to give Kanter “a shot he won’t disappoint me.” Kanter wouldn’t have been his choice to lead the division, but Hawley said the nominee understands “the problems of hyper-concentration in industry ... especially right now in tech.”
President Donald Trump’s Antitrust Division Chief Makan Delrahim got his committee vote June 8, 2017, and was confirmed Sept. 27. Khan advanced through committee May 12 (see 2105120063) and was confirmed June 14 (see 2106150001).
Kanter reported $20.3 million in income from Paul Weiss for the previous 12 months, according to financial disclosure filings from July. His clients included Microsoft, Charter Communications, Uber, Spotify, Qualcomm, Roku, Match, the News Media Alliance, News Corp., Mapbox and General Motors.
Odds are “very good” Kanter will be confirmed before the holidays, said Kelley Drye’s Bill MacLeod, a former FTC Consumer Protection Bureau director. He cited the committee vote and bipartisan support from nine past Antitrust Division chiefs, including Delrahim: The Senate majority “will not want to see the confirmation slide into next year.” MacLeod expects Kanter's enforcement policies would be consistent with what “we have seen” from the White House and the FTC.
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., told us evidence suggests there should be an FTC investigation of Facebook due to the latest revelations from whistleblowers (see 2110050062). “I continue to have concerns as to whether or not a federal regulatory agency such as [the FTC] has the manpower and resources to match wits with these social media giants,” said Durbin. There has been no update on when FTC nominee Alvaro Bedoya could get a hearing, Senate Commerce Committee Chair Maria Cantwell, D-Wash., told us last week.
There’s a “leadership void" at DOJ Antitrust, "particularly with regards to merger reviews," emailed Ausra Deluard from Dentons. “There are no deputy AGs and the leadership void is evidenced in delayed processing times at the DOJ that delay transaction closings.” She raised concerns about the Biden administration’s “intention to revise merger review policy without guidance to the business community.” The division is “sorely in need of permanent leadership,” said Allen & Overy’s Noah Brumfield. “I believe there’s bipartisan consensus around filling the position before year-end.”
Expect a “tag team” from Kanter and Khan with more “targeted, proactive” antitrust policies, said Constellation Research CEO Ray Wang. “Most people in the tech industry would hope that they not make it political, that they look at it from an economic perspective.”