‘M y name is Jonathan Kanter, and I represent the people of the United States of America.” So began a speech given by the assistant attorney general for the Department of Justice Antitrust Division on Tuesday in Washington, D.C.
Kanter called himself “the people’s lawyer.” He said, “People struggling to afford groceries, make rent, get meaningful employment — they all depend on antitrust enforcement to protect their interests.”
Kanter is part of the Biden administration’s attempts to alter antitrust law in the United States. Federal Trade Commission chairwoman Lina Khan is also part of that effort. The antitrust laws have not changed, but the FTC and DOJ have wide latitude to interpret them. Since the 1980s, antitrust enforcement during Republican and Democratic administrations has sought to adhere to the consumer-welfare standard, which says mergers should be blocked if it can be demonstrated that they would hurt consumers through higher prices or lower quality. Kanter and Khan support a neo-Brandeisian approach that mostly opposes mergers for their own sake.
Kanter went on in his speech to brag about mergers he and his attorneys have prevented. He couldn’t brag too much about winning court cases, since he and Khan have had a hard time persuading federal judges they are correct. But he did brag about how the threat of DOJ lawsuits has blocked mergers. “For every case we bring, there are five, ten, 50, maybe 100 that we don’t have to bring,” he said.
The neo-Brandeisian agenda is carried out in straightforwardly populist terms, as Kanter’s rhetoric demonstrates. Brief reflection on his words also demonstrates the shortcomings of this approach.
Nobody voted for Jonathan Kanter. His claim to be “the people’s lawyer” rests on the fact that he argues the side called “the United States” in lawsuits. But the people did not hire Kanter to argue cases for them.
Kanter decides which cases “the people” want to bring. He doesn’t do so by asking voters whether to sue Apple or airlines, and he isn’t subject to regular elections where voters can throw him out if they don’t approve of his decisions. He brings lawsuits according to his own judgment.
We do have people in the U.S. government who are representatives of the American people. Helpfully, they are called “representatives,” and they are directly elected to serve in the House. There are also senators, directly elected by the states, and the president, indirectly elected through the Electoral College.
The assistant attorney general for the Department of Justice Antitrust Division is a servant of the representatives of the American people. He is appointed by the president and confirmed by the Senate. He is subject to firing by the president at any time.
The claim that he is the voice of the downtrodden is particularly absurd coming from Kanter. Before becoming assistant attorney general, he was a corporate lawyer representing big companies neo-Brandeisians vilify today, such as Microsoft. He made $20.3 million in 2020 and 2021. There are not a bunch of poor people in the United States crying out for a man who wears formal peak lapels and a $35,000 watch to bring more lawsuits.
The self-congratulatory remarks about preventing mergers also demonstrate the carelessness with which Kanter has pursued his agenda. He doesn’t know whether each case he brings stops “five” or “maybe 100” other mergers. His inability to estimate his own impact on the economy within a factor of 20 should not make the American people — or the American judiciary — confident that his approach is sound.
Populist economics in Washington, D.C., is conducted with sleight of hand. Rich lawyers such as Kanter — and Robert Lighthizer, Trump’s (anti-)trade representative — pose as spokesmen for the forgotten man while growing the federal government’s influence on the U.S. economy. They do so without democratic accountability because they are bureaucrats, not representatives. Rather than executing the laws, they essentially get to make law of their own.
That power inflates their egos, which is how you get Lighthizer being introduced at conferences as “one of Washington’s greatest statesmen” and Kanter fancying himself as the representative of the American people. In reality, Lighthizer wasn’t quite in the cabinet, and Kanter is the head of one of eight divisions of the DOJ, outranked by the attorney general, the deputy attorney general, and the associate attorney general.
In a healthier constitutional order, these men would be minor functionaries, but in this supposedly populist era of Washington, they have developed fan clubs among other aspiring bureaucrats who want to “represent the people” as they do. The American people ought to act through their actual representatives to reform the laws that give them such power and put them back in their place within the Madisonian system of checks and balances.