Earlier this month, President Biden signed a landmark executive order (EO) aimed at taking on concentrated corporate power. The order takes a sweeping “whole of government” approach to promoting competition, with crucial provisions to allow the importation of generic prescription drugs, ban anti-worker non-compete agreements, lower the cost of internet access, and more.
Of particular importance are the order’s provisions relating to farmers and agriculture, an oft-overlooked sector when it comes to monopoly power. Biden’s EO acknowledges the unprecedented control over agricultural markets that companies like Monsanto now enjoy. The EO also directly addresses some of the biggest competition-related concerns held by family farmers and lays out an encouraging roadmap for executive branch anti-monopoly action.
This EO follows months of pressure from public interest groups urging Biden to make bolder use of his executive powers and staff the executive branch with personnel who will put the public interest ahead of corporate profits. While the order represents a milestone moment in Biden’s presidency, major gaps in executive branch staffing and potential complacency by progressives could undermine its sweeping promises.
What’s In The Executive Order?
Biden’s EO contains several provisions with particular importance to farmers and agricultural workers.
First, it directs leading antitrust enforcement agencies like the Department of Justice (DOJ) and Federal Trade Commission (FTC) to “enforce antitrust laws vigorously” and “recognize that the law allows them to challenge prior bad mergers that past Administrations did not previously challenge”. If heeded by regulators, this directive would lead to the reversal of monopoly power held by Big Ag giants like Monsanto and Tyson Foods that has caused thousands of farmers to grapple with higher input costs and reduced market share. The EO’s faulting of “past Administrations” is also a notable and welcome break with the past, as the Trump years saw regulators approve landmark anti-competitive mergers pursued by Monsanto, Tyson, and other Big Ag companies. This guidance is also an implicit rebuke of the Obama administration’s approach to Big Ag, which saw then-Agriculture Secretary Tom Vilsack cheer on corporate consolidation and the DOJ’s Antitrust Division “not [file] a single amicus brief from 2009 to 2016” challenging an agriculture-related merger.
The EO also encourages the FTC to end “unfair anticompetitive restrictions on third-party repair or self-repair of items” such as farming equipment. This push to establish farmers’ “right to repair” could end a years-long battle between farmers and equipment manufacturers over the latter’s monopolization of the repair industry. As VICE News reported in 2018, equipment manufacturers like John Deere often require farmers to agree to onerous software license agreements and the use of proprietary parts in machinery repair, granting these companies an artificial monopoly over the repair market. Family farm and consumer advocates have fought these rules for years, arguing that they cost small farmers their time, money, and agency. Biden’s embrace of right-to-repair — a policy that only former rivals Bernie Sanders and Elizabeth Warren had endorsed during the 2020 primary — could end this exploitation by requiring equipment manufacturers to make internal repair guides public, make repair parts and tools more broadly available and affordable, and end the use of software locks.
The US Department of Agriculture (USDA) is also a notable area of focus for the EO, which directs the agency to enact rules and development plans to help balance the playing field between family farmers and Big Ag monopolies. One provision follows recent developments at the FTC and USDA and orders the latter to consider new rules “defining when meat can bear ‘Product of USA’ labels”, a major victory for American livestock and poultry producers who have correctly argued that the current rules unfairly permit multinational meatpacking companies to label products derived from animals born and raised abroad (but processed inside the U.S.) as “Made in the USA.” As antitrust expert Matt Stoller has noted, “Made in the USA” mislabeling regularly “allows meatpackers to drive down the price paid to domestic ranchers, because they can deceptively market beef from Brazil as American beef.”
Another provision urges USDA to issue new rules under the Packers and Stockyards Act — the 1921 law designed to combat excessive concentration and unfair practices in the meat industry — that crack down on the exploitation of chicken farmers, make it easier for independent farmers to file claims, and adopt anti-retaliation protections for whistleblowers who speak out against bad practices. This trio of proposed rules received widespread praise from groups like Ranchers Cattlemen Action Legal Fund, who commended the Biden administration for being “the first administration to actually take action” on the law’s enforcement over the past 20 years.
A third USDA directive in the EO encourages the agency to promote competition in agricultural markets by increasing opportunities for small farmers to access retail markets, supporting alternative distribution systems like farmers markets, and developing transparent labeling standards to help consumers choose products. The USDA has already promised quick action on this directive, pledging this month to invest $500 million in American Rescue Plan funds to “expand processing capacity and increase competition in meat and poultry processing.”
Personnel Is Policy: How Progressive Oversight Led To Biden’s EO
Biden’s EO is a landmark moment for antitrust, but not one that arose out of thin air. As the Christian Science-Monitor chronicled earlier this month, progressive antitrust groups and good-government watchdogs (including the Revolving Door Project) have been organizing since last summer to ensure that a Biden administration would not be staffed with corporate insiders monopoly allies.
On antitrust appointments, they have largely succeeded. The appointments of Tim Wu (a leading anti-monopolist who coined the term “net neutrality”) to the NEC and Lina Khan (a prolific critic of the Obama administration’s approach to Big Ag) to the FTC were critical to laying the groundwork for the EO, with Wu having worked on it full-time since being hired by Biden in March. Google adversary Jonathan Kanter is also set to join the Biden administration in the crucial post of Assistant Attorney General for Antitrust, where he would oversee the DOJ’s ongoing lawsuit against Google for engaging in anti-competititve business practices. Without Wu, Khan, Kanter, and other anti-monopolists like NEC Deputy Director Bharat Ramamurti in the administration, it’s hard to imagine Biden making such a sweeping break from his predecessors on antitrust enforcement.
Scrutiny of Biden’s more problematic hires has also yielded results. Take Agriculture Secretary Tom Vilsack, who spent his first stint at USDA appointing Monsanto-connected executives to agency jobs and rolling back regulations and antitrust enforcement on Big Ag companies. Alongside groups like People’s Action, we opposed Vilsack’s nomination from the outset due to his industry-friendly record and subsequent career as a lobbyist for Big Dairy.
While Biden’s decision to have Vilsack return to USDA was disheartening (particularly given a superior alternative candidate for the job), continued pressure on Vilsack to staff the department with family farm advocates led to some promising hires. Andy Green, a former aide to progressive SEC commissioner Kara Stein and Senator Jeff Merkley (a co-sponsor of the Farmers Bill of Rights resolution), is one such example. Green was hired in March to serve as Vilsack’s senior adviser on fair and competitive markets, and has regularly met with groups like Family Farm Action, Open Markets Institute, and Friends of the Earth to meaningfully integrate progressives’ concerns about unchecked corporate power into USDA’s activities. Under his watch, USDA has made remarkable progress towards turning the page on the Obama and Trump eras, pledging its resources towards expanding competition and fair labeling standards.
Vilsack has also responded to civil and farmers rights groups outraged at his past handling of USDA discrimination against black farmers, appointing former National Family Farm Coalition treasurer Monica Rainge as Deputy Assistant Secretary for Civil Rights. Rainge, whose most recent work entailed supporting socially disadvantaged farmers and ranchers, stands alongside Green as an example of how sustained progressive pressure has moved one of Biden’s most corporate-friendly Cabinet picks in a positive direction on personnel and policy.
Follow-Through Matters: Actions Speak Louder Than Words
Biden’s EO swings for the fences in its ambition, but whether it succeeds will come down to the administration’s follow-through. On several occasions — such as the vaccine TRIPS waiver and Yemen War announcements — Biden has undermined bold policy promises with insufficient or contrary follow-up action. Concerningly, this latest EO is merely suggestive in much of its language (an agency “shall consider” or be “encouraged”) and delegates the responsibility for next-steps to various executive agencies.
Here, key staff vacancies could severely undermine the EO. For example, as The American Prospect’s Alex Sammon noted, much of the potential of a Khan-led FTC will be unrealized if Biden leaves the agency paralyzed in a 2-2 partisan deadlock following the upcoming departure of Commissioner Rohit Chopra. Vacancies will plague USDA as well, as Biden lags well behind Obama in his pace of staffing the agency. Top positions in the Civil Rights, General Counsel, Risk Management, and Farm Service divisions remain unfilled, while nearly every state-level office in USDA’s Rural Development division — a key point of contact between the agency and rural communities — lacks a full-time director. Given the crucial duties handled by these divisions (which include ensuring compliance with federal anti-discrimination laws, providing federal crop insurance, and administering farm aid and credit programs), Biden must fill these vacancies without delay and urge his party to do whatever it takes to expedite Senate confirmations.
Also vital will be continued oversight of personnel with corporate ties to ensure that they do not undermine — either through negligence or sabotage — the EO from inside the administration. Packers and Stockyards reforms, as Food & Water Watch’s Amanda Starbuck noted, were ready to be implemented during the Obama administration but repeatedly delayed by Vilsack, opening the door for the Trump administration to gut them. Vilsack now has a second chance to make things right, and his choice to spend the Trump years as a Big Ag lobbyist means that progressives must keep a close eye on him and his industry-connected allies. Given the success that Vilsack’s critics have had in moving him leftward on personnel and antitrust policy so far, continued oversight of him by progressive groups will ensure that the EO is properly implemented.
This is a fight in which progressives cannot afford to be complacent. For the first time in over 40 years, the Reagan-era defenders of monopoly power are losing ground and neo-Brandeisian reformers are gaining it. But this nascent antitrust movement will only be able to expand upon its remarkable gains through sustained and active scrutiny of the executive branch. Whether we will have a democracy or wealth concentrated in the hands of a few, as Brandeis himself once put it, depends entirely on what progressives do next.
IMAGE: “Coyote Run Farm – Lacona, IA – November 23, 2019” by Biden For President is licensed under CC BY-NC-SA 2.0.