June 24, 2021
President Joseph R. Biden
The White House
1600 Pennsylvania Ave. NW
Washington DC 20500
Dear Mr. President:
I write today on behalf of the American Antitrust Institute (AAI) to encourage the Biden Administration to act expeditiously to appoint a highly qualified Assistant Attorney General (AAG) to lead the Antitrust Division of the U.S. Department of Justice (DOJ).[1] This is a critical time and rare opportunity for the Administration to tackle worsening competition problems in the U.S. economy. The first major monopolization cases filed in decades—against Facebook and Google—are pending. Rising concentration, the emergence of dominant firms and domestic cartels, and anticompetitive harms to consumers, workers, and small businesses threaten not only our markets, but the democratic principles that support the U.S. economy.
Right now, many Americans recovering from the pandemic are struggling to survive financially, and they are relying heavily on the U.S. economy to deliver quality goods and services at competitive prices and jobs that pay competitive wages. These Americans cannot wait an extended period for permanent antitrust leadership at the DOJ, as they did under the Trump Administration. They need experienced and capable leaders with strong commitments to antitrust enforcement, who can immediately frame a new vision of effective competition policy.
AAI commends the Biden Administration for securing permanent leadership at the Federal Trade Commission, after Lina Khan’s Senate confirmation filled the only extant vacancy on the Commission last week. Acting leadership and dedicated career staff at the DOJ have done a commendable job upholding and enforcing the antitrust laws while awaiting the vision, engagement, and execution that only a permanent leader can provide. But the Antitrust Division’s front office remains in limbo at a time when the U.S. economy needs enforcement that is focused and firing on all cylinders.
AAI is therefore troubled about reports and rumors of gridlock or ideological impasse in completing the AAG appointment and confirmation process. We urge the Administration to consider several important factors in moving quickly to name an AAG that can guide the U.S. economy through these difficult times.
First, now is the time to choose the most qualified candidate for AAG. That person should be an aggressive, creative, and experienced litigator. The primary role of antitrust law as a salutary force in the U.S. economy is to realize achievements through litigation victories and settlements in administrative proceedings and federal court. This means leading the government in moving to block harmful mergers and to interdict and punish collusive and exclusionary behavior by powerful firms. It demands skills that generate real deterrence against future violations and tangible redress for victims, backed by effective judicial decrees.
Second, the current climate calls for an AAG with minimal encumbrances that might threaten to interfere with the strategic and operational work of the Antitrust Division. That means a candidate that meets the requirements of the ethics rules. While some recusals may be inevitable, the Biden Administration should appoint an AAG who will rarely, if ever, be ethically obligated to hand over vital leadership responsibilities to deputies in critical cases. The pressing challenges of antitrust enforcement require a cohesive policy response, unhindered by significant conflicts and recusals.
Third, the Administration should accept that it is unlikely to identify a “unicorn” AAG candidate that will be politically palatable to everyone on the ideological spectrum. A prolonged search for such a candidate cannot be reconciled with the need to begin a new era of strong antitrust enforcement, without further delay. Americans remain in need of an AAG that is in charge and who knows how to win antitrust cases against powerful firms on behalf of victims. And they need that appointee to be confirmed by the Senate promptly.
We appreciate your consideration of AAI’s views in this matter and stand ready to be of service to the Biden Administration.
Sincerely,
Diana L. Moss
President
American Antitrust Institute
1025 Connecticut Ave. NW
Suite 1000
Washington DC 20036
cc:
Mr. Ronald Klain, White House Chief of Staff
Ms. Catherine Russell, Director, White House Presidential Personnel Office
Mr. Brian Deese, Assistant to the President & Senior Advisor
Mr. Timothy Wu, Special Assistant to the President for Technology & Competition Policy
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[1] AAI was established in 1998 and is a leading independent, nonprofit organization devoted to promoting competition that protects consumers, businesses, and society. It serves the public through research, education, and advocacy on the benefits of competition and the use of antitrust enforcement as a vital component of national and international competition policy.
