“Political influence should not be a relevant factor in determining whether to initiate or bring antitrust enforcement actions,” Kanter said in response to questioning from Sen. Mike Lee (R-Utah). “The kinds of values are around protecting competition, and competition can yield a wide range of benefits, including protecting the free flow of information.”
Kanter is among a wave of personnel choices who signal the Biden administration’s eagerness to regulate the tech industry, amid criticism that the companies have flourished for years seemingly without guardrails. His nomination signals how the Democrats’ relationship with the tech industry has deteriorated over the past decade, a stark shift from the Obama administration, which largely took a hands-off approach to regulating tech companies.
During the nomination hearing, Kanter pointed to a number of industries where antitrust enforcement could be appropriate, from health care to agriculture. He also affirmed that he has an eye on Big Tech.
“I’ve been a strong proponent of vigorous antitrust enforcement in the technology area, among others,” he said.
Kanter is a known adversary of tech giants including Google and Apple. He has represented their rivals big and small, including Microsoft, NewsCorp and Yelp. His law firm, Kanter Law Group, describes itself as “an antitrust advocacy boutique.” And he is under consideration for a key role at the Justice Department as the agency has brought a historic competition case against Google and is scrutinizing Apple for potential anticompetitive conduct.
Senators did not ask Kanter if his previous work for Google and Apple rivals would interfere with his ability to work on Justice Department probes involving the tech giants. Lina Khan, the chair of the Federal Trade Commission, has received petitions from Amazon and Facebook to recuse herself from investigations into the companies given her previous work.
Lawmakers are considering his nomination amid mounting bipartisan support for greater antitrust enforcement and legislation that would bolster the ability of federal enforcers, including the Justice Department’s antitrust division, to rein in large tech platforms.
“That requires leadership, experienced leadership, at the antitrust division. That requires legal skill, as well as, and I think this cannot be forgotten, the courage to take on some of the most powerful companies the world has ever seen,” said Sen. Amy Klobuchar (D-Minn.), the chair of the Senate Judiciary antitrust subcommittee, in her introduction of Kanter.
Sen. Thom Tillis (R-N.C.) said he intended to support Kanter’s nomination, signaling that his appointment will have some bipartisan backing. And Sen. Charles E. Grassley (R-Iowa) made some positive remarks.
“Mr. Kanter has been a forceful critic of big tech companies. So have I,” Grassley said. “The market size and power of companies like Facebook and Google enable them to exert substantial control over how Americans get and share information.”
Lawmakers did not directly question Kanter on how he would work with Khan, who is known for her inventive academic writing about how to regulate tech giants including Amazon. (Amazon founder Jeff Bezos owns The Washington Post.) The FTC is also tasked with competition oversight, and under the Trump administration the agencies made an agreement to divvy up work probing large tech companies. The FTC has an active antitrust case against Facebook.
Khan’s nomination process indicated there is broad bipartisan support in Congress for enforcers who signal greater regulation of the tech industry. Twenty-one Republicans joined 46 Democrats and two independents in backing Khan’s nomination.
The Biden administration has made competition policy a key priority, releasing a sweeping executive order this summer that aims to rein in competition across the economy, challenging the business practices of large firms in tech, health care, agriculture and manufacturing. Biden also tapped Tim Wu, who has called for greater antitrust enforcement of tech giants, to serve on the National Economic Council as a special assistant to the president for technology and competition policy.
“We live in a time when the president and we in the White House feel a very acute, popular demand that more be done to control corporate power and profit-taking,” Wu said at an antitrust conference in New York last week.
Kanter has strong support among liberal Democrats who have called for the break-up of major tech giants. In the months leading up to his nomination, prominent tech critics carried coffee mugs with the text “Wu & Khan & Kanter” to reflect support for tougher antitrust enforcement.
Cristiano Lima contributed to this report.