Antitrust Makes a Comeback

Last Friday, President Joe Biden announced a sweeping executive order aimed at ending what he called a 40-year “experiment of letting giant corporations accumulate more and more power.” Attorney and law professor Zephyr Teachout joins Ryan Grim to discuss the return of antitrust under the Biden presidency.

[Intro theme.]

Ryan Grim: Last week President Biden issued a sweeping executive order on competition, declaring that the past 40 years of antitrust policy had been a failed experiment.

President Joseph R. Biden: We are now 40 years into the experiment of letting giant corporations accumulate more and more power. I believe the experiment failed.

RG: The Federal Trade Commission, meanwhile, has taken on two of the world’s richest men, Jeff Bezos and Warren Buffett, in just the past few weeks. All of it has the business press panicking.

Newscaster: Apple in the hot seat on the Hill. Lawmakers also have their sights set on Amazon, Facebook, Google.

Newscaster: President Biden perhaps signaling a tough stance against big tech.

Newscaster: Could there be a regulatory crackdown?

Newscaster: Absolutely. I mean, that’s the biggest risk.

Newscaster: There’s a new sheriff in town, Lina Khan voted to take the reins of the FTC.

Newscaster: This is the ultimate regulator, big-tech regulator, taking over the FTC —

Newscaster: My Republican colleagues feel that she will be very aggressive and unfair.

Newscaster: I mean, everybody’s very scared of her. So —

Newscaster: They are scared of her. It’s really interesting.

Newscaster: So how did antitrust policy change so fundamentally in such a short amount of time? And is this a revolution, or is it a minor insurrection that will be put down quickly by the forces of concentrated power?

RG: We’re joined today to answer those questions by Zephyr Teachout, law professor and author of the recent book “Break ‘Em Up: Recovering Our Freedom from Big Ag, Big Tech, and Big Money.”

Zephyr, welcome to Deconstructed.

Zephyr Teachout: Thank you so much for having me on.

RG: Thank you for joining us.

And so I actually wanted to start by mentioning a few names for you.

ZT: OK!

RG: And having you give some background to people about you know who these folks are, and why they’re relevant to today’s antitrust discussion. And this is not a pop quiz, because I suspect these are all actually, if not close friends of yours, at least people that you’ve worked with for a long time.

ZT: Yes.

RG: So let’s start with Tim Wu. Who is Tim Wu?

ZT: Yeah, Tim Wu is somebody who I have been actually fairly close friends with, as well as colleagues with, for many, many years. But that’s not why he’s important. [Laughs.]

RG: [Laughs.]

ZT: Before this moment, probably best known for coining the phrase network neutrality, and being an advocate for over a decade now for the position that there are certain areas of our economy that have gotten so gobbled up, so they’re the choke point control, especially when it comes to areas of the TK internet and telecom, that a handful of corporations so control them that we need a pretty significant policy change in the way that we deal with them.

And, at this point, Tim is now an adviser at the White House, and has played a really critical role in what Joe Biden did last week.

RG: Yes. With his executive order —

ZT: Yes.

RG: — on competition, which we’ll get into soon. Yeah, his technical title, I just looked it up, he’s the special assistant to the president for technology and competition policy on the National Economic Council.

ZT: Yes.Yes.

RG: So Tim is known for net neutrality. But I think what is important, and we saw this in this really expansive executive order, is that in fact, although he’s known for tech, he has a vision of antitrust and anti-monopoly that goes beyond tech. And we are at a moment in our country where at the federal level in terms of legislation, at the federal level in terms of Joe Biden, and at the state level, there’s a massive rethinking about how we should approach corporate concentration, antitrust, and what kinds of policies and approaches we should bring to bear on what’s pretty clearly a pretty radically concentrated economy.

RG: Now, the second name I wanted to put to you is Bharat Ramamurti.

ZT: Yes. So you probably know his technical title in the White House. I’d have to go look that up as well.

RG: I will give you the answer to that one. He’s now deputy director of the National Economic Council.

ZT: OK. Yeah. So he is a longtime ally of Elizabeth Warren, a really wonderful human being as well, and has been a key driver again within the White House, and for a long time preceding that, for rethinking the excessive power of big banks and other big corporations.

RG: Third name to throw at you: Lina Khan.

ZT: Yes. So Lina is the new chairperson of the Federal Trade Commission. And Lina is best-known for two things. She’s only 32 years old, but she’s already been involved in two really historic moments: One was the publication of a law review article, rarely seen as a big political moment, but even as a law student, she published a law review article that really took direct aim at forty years of thinking about antitrust policy.

And the second thing she was known for before this really significant role that she’s playing now is for being really the key staffer for the antitrust subcommittees, extraordinary investigation into the digital marketplace, into Amazon, Apple, Google, and Facebook.

Lina Khan, as the chairperson of the FTC, is now in a position to — and she’s already very clearly signaled that she will — take these big intellectual shifts in antitrust policy, make them into policy, make them into rule-making, and change the enforcement patterns of the Federal Trade Commission.

And before we go on, if you think: Well, yeah, there’s lots of agencies, the FTC sounds nice, but it’s never really played this central role — well, it hasn’t played a central role in economic policy for the last 40 years, so you wouldn’t be wrong. But both FDR and Ronald Reagan, in very different directions, used the Federal Trade Commission to really shift course on economic policy. For FDR, it was central to his second term, where a massive enforcement effort at the Federal Trade Commission was not the whole thing, but was the sort of the leading edge of driving a more decentralized economy that’s more friendly to both small businesses and workers. And with Reagan, it was the opposite; the tearing down of the antitrust regime of the prior 30 odd years, the FDR antitrust regime, was central to what Reagan did. And when Reagan’s FTC got in there, they stopped enforcing, and they established a totally new approach towards when to enforce, and how to think about antitrust.

RG: And speaking of the FTC, the final name to put to you is Rohit Chopra.

ZT: Yes. So Rohit Chopra is currently a commissioner at the Federal Trade Commission. And as a commissioner, he has been involved in writing opinions about what the Federal Trade Commission is doing or, more often, not doing: the enforcement actions, they are declining to bring, the mergers they are declining to stop. And during his years as a commissioner at the Federal Trade Commission, he has built up a body of dissents that I sometimes compare to the great dissents of Brandeis in the Supreme Court, dissents which later formed the basis of our current thinking about free speech for dissidents.

So Chopra, in the series of dissents at the Federal Trade Commission, has laid the groundwork for a change in competition policy. Biden has chosen him to be the new head of the Consumer Finance Protection Bureau, another independent agency, where he will also play a key role in defining fair competition. So you have, now, these four different extraordinary leaders in different positions: two in the White House, two leading independent agencies, all of whom have a profound alignment on a vision of the dangers of concentrated power, and the opportunities to respond to that.

RG: And can you talk a little bit about Lina Khan’s law review article? What was the argument that she was trying to make, and what was the idea that she was trying to dismantle?

ZT: Yeah, I’m gonna start with the idea that she’s trying to dismantle, because it’s so pervasive that if you’re listening, you may have, without thinking, embedded it in your own thinking.

This is an idea that was pushed, Robert Bork, most famously, also Aaron Director, key thinkers at what is broadly understood or talked about as the Chicago School of Economics, which you’ve talked about on this show before.

RG: Mhmm.

ZT: And the idea epitomized in another law review article that changed the country [laughs] —

RG: [Laughs.]

ZT: — so there’s moments where law review articles and books can really shape the direction of policy. Robert Bork wrote an article called “The Antitrust Paradox.” And in it, he argued that antitrust law as practiced from the ’30s through the ’70s was what was in his — what’s the metaphor people use?

RG: In his sights?

ZT: Right! In his sights!

RG: There you go.

ZT: And he argued that antitrust law, as practiced, was protecting competitors, not competition, and was actually harming consumers, because it was blocking mergers, other kinds of exclusive contracts and business practices that would lead to, effectively, lower prices for toothpaste. And I’m collapsing this into Shakespeare in 30 seconds. But this is the most important thing Bork does, is the way to solve what he sees as a series of paradoxes and contradictions within antitrust law is to recognize, in Bork’s words, that the sole purpose of this whole suite of antitrust laws is consumer welfare. It is not to protect the relative power of workers as compared to their employers, even if their employers have extraordinary amounts of power to set the terms of wages and benefits. It is not to protect small businesses that are in a position of being squeezed in the way that Amazon sellers are now squeezed by Amazon or Uber drivers [are] squeezed by Uber. The purpose of antitrust law, according to Bork, is consumer welfare. And in practice that ends up being consumer prices.

RG: Mhmm.

ZT: So this may sound kind of abstract, but when the rubber hit the road, when Reagan adopted this policy, it had profound implications. And this is what Khan was taking on. And in her law review article, she goes into great detail about the ways in which Amazon cross-subsidizes, engages in practices, that end up squeezing the sellers, squeezing potential competitors, dampening innovation —

Now, I do want to say something about this article, and about Khan in general. It’s a little pet peeve of mine. [Laughs.] Khan’s article was really important about Amazon, but it was about much more than Amazon. It was actually about agriculture. And it’s about airlines. And it’s about pharma. And it’s about the way we think about economic policy. So my pet peeve is you will often see Khan described as a thorn in the side of big tech or a big tech opponent [laughs], anti-tech — she’s not anti tech at all. One of the things that we have seen is that these big tech companies are destroying innovations, they’re buying up competitors, they’re choking people who might have more exciting ideas. It’s pro-tech, and it’s about economic theory, not just tech policy.

And what Khan, along with Wu, and Chopra, and others — I’m part of this movement — is an attempt to recover something that Louis Brandeis held dear, which is starting with the world as it is and power as it operates in practice. So it’s very fact-based. It’s very much focusing on what actually happens, not what the theory does. And that’s where Khan’s training is. She started talking to chicken farmers about their experience. She wrote great articles about seeds, and patents, and Monsanto. So she actually started in ag. [Laughs.] And then — I believe — that those insights helped her look at big tech without the blurriness and the sort of glamour that tech sometimes brings, where people say, “Tech is totally new! Everything’s disrupted! It’s never happened before.” She went in there. And she’s like, “Hey, I’ve seen this. I saw this with Monsanto. I know these practices, because this is what Tyson does.” And I think it’s important to understand her as a pro-innovation, pro-worker, pro-small business, pro-changing the way that we approach equality.

That’s a really interesting point, because when Tim Wu got appointed to the White House, the headlines were: “Tim Wu, Big Tech Critic, Named to National Economic Council.” When Lina Khan was nominated, a Wall Street Journal headline was: “Lina Khan, Critic of Large Tech Firms, to Lead Federal Trade Commission.”

RG: I actually grew up on the eastern shore of Maryland, which is like the chicken-farming capital of the world practically.

ZT: Oh yeah! Yeah.

RG: And one of the first articles I ever did, almost 20 years ago at this point, was about chicken farming. And that’s a really interesting insight that that was some of the first work, because the concentration in ag in general, and in the poultry industry in particular, is feudal.

ZT: Yes!

RG: It’s modern-day sharecropping. And friends of mine that I grew up with are involved with, they call them chicken growers, because all they do is take eggs from, say it’s Tyson or Purdue, and Purdue still owns those eggs. They’re just living in this chicken house —

ZT: But they paid a mortgage! [Laughs.]

RG: But they paid for the mortgage, they’re paying all of these costs. And they are then paid by Purdue, whatever Purdue decides to pay —

ZT: And Purdue changes up the prices every month.

RG: Right, just all the time, they take all the risk, and any of the price swings upward are going to be absorbed by Purdue in their profit margin, and any swings downward are going to be a hit against the farmers. You practically, at this point, have to have something like maybe half a dozen of these chicken houses, just to make a lower-income living.

ZT: Yep.

RG: So that’s an enormous amount of work. And we’re talking 10,000 to 20,000 —

ZT: Yes. Yes.

RG: — birds in a chicken house.

And so I can imagine how if, as a journalist, she started looking at ag first, because it’s so stridently in your face —

ZT: Yeah.

RG: — the absolute raw power, it would be easier for you to see that power in other sectors, even where it’s a bit more veiled.

ZT: Yeah! Ryan, think about an Amazon seller and a grower. [Laughs.]

So initially, Amazon seller comes in with: Oh, great, I have a platform I can sell my I don’t know, pick your pick your product. Glowing frisbee.

RG: [At the same time] Hemp bracelets.

ZT: Right. I can sell my hemp bracelets, and I’ll use this platform. This is great. And yes, I’ll put in a big investment to make sure that I can pay my workers and I’ll take out the loan, right? So this is like the grower: I’ll get to be an independent farmer.

And then Amazon initially draws the sellers in, dominates the market, and now if you are selling hemp bracelets, or glowing frisbees, and you’re not selling on Amazon, you’re not reaching a really, massively significant part of the online marketplace. You got to be there, right? And now Amazon’s like: Hey, OK, great! In exchange for being on our marketplace, here’s what you have to do to be well enough ranked that people know you exist in search results. And search results are by no means neutral, right?

RG: Mhmm.

ZT: So Amazon collects data in the way that Tyson collects data from the sellers. It changes up prices, it experiments, and, at this point, it’s taking 20 to 30 percent of the cut of sales, because it put itself in that choke point position. So the Tyson-Purdue model is increasingly the model for big tech. That’s the role that Facebook plays in relation to news organizations: taking as much value as you can, sitting in a position of total dependence, where many news organizations are wholly dependent on YouTube — obviously owned by Google — and Facebook.

So once you see that this is actually the model of a lot of our economy, you can see, well, this is actually what antitrust law was designed to do is to protect from the Purdues of the world, the Amazons of the world, sitting in a position where they can squeeze, control, manipulate, and take all the upside. And the democratic costs are extraordinary. Lina was actually one of the first reporters to talk to farmers about how not only were they getting squeezed, but they were scared, and that there’s enormous amount of fear in the way that this feudal — as you rightly say — this feudal economy works.

[Musical interlude.]

RG: And so, this has so far led to this executive order on competition that was, as I understand it, largely written by Tim Wu and Bharat.

ZT: Yep.

RG: And it includes 72 different bullets.

ZT: Yep.

RG: But when people hear executive order, they hear: OK, well, it’s a piece of paper!

ZT: Right! [Laughs.]

RG: Congratulations to you for putting words down on paper! Nothing is going to change in the real world.

But this executive order does appear to have some teeth, because there are actually laws already on book. So it’s not just an order, it is in order to execute existing laws in a way that they haven’t been executed for decades.

So what, to you, are the major takeaways from that order that are actually going to have an impact on the real world?

ZT: Yeah. So I see the executive order as doing three things. And I want to talk about all three of them, and we can get into the weeds of the particulars.

One is that it issued, as you say, 72 directives to over a dozen agencies in the executive branch. Of those, some of the agencies the president controls. [Laughs.] So when you have the president telling Pete Buttigieg what to do, Pete Buttigieg better do it. Right? This is not a request to please consider. It is a directive. And that’s important. When you look at HHS, these are cabinet members who have to do what the president says.

Others of these directives are to independent agencies, like the Federal Trade Commission and the CFPB. So Khan and Chopra. And so I think I place a couple different roles. One is, we’re not inside, but it makes some agencies do things they probably don’t want to do! You know? There’s been 40 years of an ideology that concentration isn’t our job. So we can’t know from the outside where there was agreement and where there wasn’t, but some of this is the president saying: Hey, you gotta do this!

Now for something like the FTC or the CFPB, this executive order is deeply aligned. But Khan and Chopra are going to be in the sights, in the crosshairs, of some of the most powerful interests in world history, big lobbyists; we’ve seen The Wall Street Journal, you had a great quip on this —

RG: Totally obsessed.

ZT: Totally obsessed with it.

RG: They’ve lost their minds.

ZT: They’ve written four articles about Lina Khan. She’s been in office less than a month.

RG: Right, as Fox News is to AOC, The Wall Street Journal is to Lina Khan.

ZT: Yes! That’s perfect.

But more seriously, she is very clearly going to be attacked for every move. And she’s going to be attacked with a lot of big money behind her. It’s really important that the Biden administration clearly signaled that the wind is at her back. And the President is fully supportive of the direction that the FTC is taking. That really matters. So the directives in that direction were really significant. Asking the FTC to put a ban on non-compete clauses. Talk about anti-competitive behavior! Your employer says, in order to get this job at Burger King, you have to agree not to work for my competitor. The Biden administration is saying to the FTC to do this. My strong guess is this is the direction the FTC was already headed. But it really helps to say: No, the president is fully behind this. Same with us with CFPB.

RG: Right, it seems like The Wall Street Journal and that element of the business wing is trying to kind of cleave Lina Khan off from the administration —

ZT: Exactly!

RG: — and say that this is a rogue, renegade regulator who has to be reined in.

ZT: Yeah.

RG: But for the Biden administration to say: No, here is an executive order. We’re specifically directing her to do these things that you’re saying?

ZT: Exactly! Yeah. You want to take on Khan, you’re taking on me.

RG: Right. Now, it feels like that would be an even stronger argument if the Department of Justice were riding in with her, too. So I want to talk about this vacancy, we’re now pretty deep into July of the first year of the presidency. And he still has not appointed an assistant attorney general to run the antitrust division at the Department of Justice. All the reporting is that Jonathan Kanter, who is another name I’ll ask you about now, is a leading candidate for that position, yet hasn’t been named.

So who’s Jonathan Kanter? And what is going on with the White House’s inability to fill this role?

ZT: I know! [Laughs.] Yeah, it’s a really weird situation for those of us who care a lot about this issue, which I think should be all of us, because you get this great executive order on the one hand, and then nobody at the DOJ!

So the Federal Trade Commission and the Department of Justice actually share a lot of authority. And then there’s some areas, like criminal sanctions, where the Department of Justice is the enforcer who can bring criminal sanctions for antitrust violations. And then there’s some sector-specific area where the Department of Justice has sole authority. It’s a complicated blend, but they often have dual jurisdiction over competition.

And it does sound in the weeds, but really matters. And again, just to look at history, it really mattered for Reagan, and it really mattered for FDR. The person in charge of antitrust enforcement at the Department of Justice plays an absolutely pivotal role in driving the president’s and the executive branch’s, the Department of Justice’s economic policy, it’s at the heart of the economic policy.

I’m just repeating what you said, but to get to the weirdness of it, we’ve had six months of a presidency that has all these signs that it cares enormously about competition, and it doesn’t have a permanent person in this slot. And Jonathan Kanter is the leading candidate from this, let’s just call it the neo-Brandeisian wing, the wing of thinking about anti-monopoly that says: Fairness matters, it’s more than consumer welfare, and we’ve been under-enforcing. So both the purposes are broader than consumer welfare, it’s also about democratic purposes, small businesses, labor, all that matters and we’ve just been asleep at the wheel while there have been all these mergers and asleep at the wheel during decades of uncompetitive practice.

The person who represents that position is Jonathan Kanter, who, among other things, is, I think in your reporting, maybe it was David Dayen’s reporting, I’d have to go back, was sort of the key architect of some of the most well-crafted cases brought against Google. As everybody’s aware, there’s all these cases against Google, Facebook, and there’s different levels of precision and skill, and Kanter is on the leading edge.

RG: And which now they’re trying to use as a disqualifying characteristic, just like Amazon and Facebook have both said that Lina Khan should recuse herself from regulating them, because she has expressed ideas about antitrust that don’t comport with their business practices.

ZT: They’ve never heard of Ben Bernanke! God forbid we have somebody in office who has studied something. [Laughs.]

RG: Right. And they’ve said the same thing about Jonathan Kanter, that because he has sued Google in the past that disqualified him, which is sort of a remarkable assertion.

ZT: Yes. Right. When you want to bring on somebody who is going to craft great cases against — forget tech — just great antitrust cases, you want to bring somebody who has, in fact, crafted great antitrust cases.

RG: Right.

ZT: So he’s the leading candidate. There’s some other names that have been floated. I think, right now, there were some names floated that were sort of deep inside the tech lobbying world; I think Biden is at least no longer talking about them. But there are other people who come more from, frankly, the Obama antitrust enforcement world.

RG: Mhmm. I think Jonathan Sallet is still in it, for instance.

ZT: Nice human beings, as far as I can tell, but their worldview, their whole history, suggests that they would be much more aligned with the last 40 years of antitrust enforcement, as opposed to looking for a significant change. And I mean, frankly, I feel like it’s too late for Biden to do anything but put in somebody who fits with everything else he’s done, because if he puts in somebody who’s from the old school, antitrust enforcement, and just to understand you’re like, OK, wait, how does the Obama world fit with the Reagan world? Well, what they’ll tell you is they’ll say: The framework isn’t bad, but we could use more enforcement and more money for enforcement. And I won’t speak to Sallet in particular, but that’s the sort of Obama-world enforcement people. They want to stick with the consumer welfare approach, they’re still at the tail end of Bork-Reagan, but they’re saying: Even within their worldview, we can do things! Instead of saying; No, no, no — what I would argue is — that worldview has failed.

And Ryan, this brings me to something I didn’t get a chance to say, and it’s, to me, the most important antitrust thing that actually happened in the last month is that Joe Biden used the word “failed.” It was amazing!

In his speech, where he issued this executive order with 72 directives, he said: One, that our antitrust policy has been terrible for workers. Huge deal! That’s not something we have heard from a president for 45 years.

RG: Right. Because you’re not even supposed to think about workers when it comes to antitrust!

ZT: Right! Yes!

You know, he talks about it as a driver of inequality. But, to me, the most important thing, he said:

JB: We’re now 40 years into the experiment of letting giant corporations accumulate more and more power. And what have we gotten from it? Less growth, weakened investment, fewer small businesses. Too many Americans who feel left behind; too many people who are poorer than their parents. I believe the experiment failed.

ZT: “We are 40 years into [the] experiment.” And that “experiment failed.” I mean, that is music.

RG: Right.

Because that doesn’t say: We missed that exclusive dealing problem over there at Amazon six years ago, or we missed that merger. It’s not that we’ve got the right framework, but we missed a few things. When he said, a 40-year experiment has “failed,” that means there is an openness to not just difference at the margins, but a whole different approach.

And, I gotta tell you — I am working, for instance, at the state level in New York State. Joe Biden saying that helps antitrust laws in New York State. It helps enforcers in Maryland. What I’m saying is it opens up the opportunity for people who have been shaking other people’s shoulders to say: We’ve got to do this differently in AG’s offices, and in state houses, and in the federal government. Him saying: I am off this ship, I’m going in a different direction. It mattered to me that he brought some muscle with — 72 directives — but the speech really mattered. And if Joe Biden says that, he shouldn’t be putting in somebody who represents the better part, a more aggressive part of that failure, he should be bringing in somebody who is rowing in the same direction.

So if he brings in somebody who’s going to be fighting with Khan, and Chopra, and the White House all the time, that’s just a recipe for failure on all fronts. You don’t want the DOJ and FTC fighting — and they can! There have been cases — I wish I’d looked it up right before this — there was a case a couple years ago where they filed briefs on opposite sides of the case. [Laughs.]

RG: Oh god.

ZT: So if you can’t have them with different approaches towards the economy. And Biden, to me, said: My approach towards the economy is if you allow massive concentration, it’s going to lead to inequality, it’s going to be bad for workers, it’s going to be bad for innovation. If we are going to get out of this post-Covid moment, we are going to need to really shake things up, and break things up. And to me, that’s Kanter. He should appoint Kanter. So who knows what’s happening behind the scenes, but it is a weird vacancy.

You guys have written about this, how there’s vacancies in other areas too. So it’s not just in this area. But he doesn’t have a lot of time to get moving in this direction.

RG: Last question for you. I don’t know if you saw there was a National Law Journal article recently about how a bunch of FTC staff attorneys are dusting off their resumes.

ZT: Yes. Yes.

RG: And the top line of the piece seemed to be that they were frustrated with Lina Khan’s approach. But underneath it, it talked about the gold rush because Lina Khan and the Biden administration actually, enforcing antitrust law in a real way is also a massive job creation program for antitrust corporate attorneys.

ZT: Yeah. Yeah. No, I mean, I actually saw this article as the least surprising news ever. [Laughs.] We’re talking about the FTC that is looking to enforce the law and do its job in rule-making. And that represents a significant change. So that significant change will necessarily lead to some staff turnover. And it’s really important that the staff be on board with this vision.

But your other point is dead on. [Laughs.] You know who’s hiring antitrust attorneys? It’s not just big tech, but big tech is laying out the cash. You know, one of the details in that piece was that there were some big firms that were saying: We don’t even have a chance to get our hands on these people because big tech has already bought them off.

So the white shoe firms are coming in second. And we started seeing this a couple years ago, is that Amazon is just swooping up people who have worked at the state attorney general’s offices. But you are looking at lawyers rushing over to get a piece of the cash.

And this revolving door problem is a huge, huge problem, not just for antitrust in the FTC sense, but for Washington.

RG: And so what’s fascinating, though, about the assault from The Wall Street Journal on Lina Khan, is that the first senator to defend her after one of their more aggressive attacks, was none other than Sen. Josh Hawley —

ZT: Yeah.

RG: — who said that this Wall Street Journal criticism was, in fact, the reason why this meant that she was a good FTC chair.

ZT: Yeah.

RG: And this isn’t something that a regulator under fire has really ever had before.

So what’s going on that has made this shake up both parties?

ZT: I’m so glad you asked that, because it is one of the most important things to understand about antitrust, anti-monopoly, is it does not fit into neat political lines.

When Khan was appointed to the FTC, she got 21 Republican votes. When Rep. David Cicilline, and Rep. Pramila Jayapal, and others introduced their suite of tech specific legislation in the House, it was bipartisan with Republican support, and some Democrats opposed, in the markup out of the Judiciary Committee. And when you look at polling, you see, on the ground, massive support for a new president taking on corporate monopolies, a new president taking on big tech, in particular, more enforcement in these areas. And when you see massive bipartisan support, it isn’t like, oh, we got 51 percent of Republicans and 80 percent of Democrats; it’s actually that the numbers are about the same for Democrats and Republicans.

So, on the ground, the support for breaking up corporate monopolies is one of the more truly bipartisan areas. And looking at this Republican Party, it’s hard to believe that there is such a thing as actual bipartisan behavior, but we’re seeing it. We see it with Rep. Ken Buck and we see it with some of the Republicans in the Senate. Now we got to see where the rubber hits the road on the legislation, but, so far, there is actual bipartisan support.

And then there’s some real bad-faith actors like Rep. Jim Jordan, who say that they’re anti-big tech, but —

RG: Right, but they just mean they’re mad that they think they’re getting shadowbanned by Twitter.

ZT: Yeah, right. The other part of that, Ryan, is there’s some Democrats, who you might think, “Oh, if this is taking on big corporations, we’re probably fine with them.” No! We have some real work to do. In the House, we’re seeing mostly a lot of California Democrats carrying water for big tech. And well, you have Rep. Ken Buck supporting important bills that would basically stop big tech from buying up competitors, on the other hand, you have Rep. Swalwell, and Rep. Lofgren, and others saying: We don’t like these bills!

So the politics here are weird. It means if you’re a progressive, don’t assume that your lawmaker is on board yet. Call them up!

RG: And if you have a law degree, and you’re fired up about this, the FTC —

ZT: Oh, I know!

RG: — may be hiring!

ZT: Oh, I was gonna say, the other side of this, is that when people leave it gives Khan a great opportunity, and it is the place to work. [Laughs.] You know? It is gonna be so exciting. You are going to see the most extraordinary talent from all over the country, flooding to say, “This is where I want to be!”

RG: And then in 10 years, you can sell out and get extraordinarily rich.

ZT: No, Ryan! No!

RG: [Laughs.] But Zephyr Teachout, thank you so much for joining us. I really appreciate it.

ZT: It was really great to talk to you. Thanks a lot.

[Credits music.]

RG: Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. Laura Flynn is our supervising producer. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

And I’m Ryan Grim, D.C. bureau chief of The Intercept. If you’d like to support our work, go to theintercept.com/give — your donation, no matter what the amount, makes a real difference.

If you haven’t already, please subscribe to the show so you can hear it every week. And please do leave us a rating or review — it helps people find the show. If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much!

See you soon.