This article first appeared in The American Prospect. Read the article on the original website.
Staring down the barrel of a Republican-controlled House in 2023, Democrats are juggling a litany of legislative priorities during the current lame-duck session. In addition to Congress’s looming obligation to fund an omnibus spending bill to fund the government, the pressure is on to enshrine same-sex marriage rights into law, bolster federal electoral procedures, add protections for pregnant women on the job, overhaul the farmworker visa program, prevent future Schedules F, and much more.
One of the legislative priorities that’s been apparently left by the wayside is the massively popular, bipartisan antitrust reform legislation. While the White House has reiterated its commitment to passing antitrust reform bills, the Biden administration has finite political capital and Congress has limited floor time. Every priority is in competition right now. But it would be easier to give the Biden administration the benefit of the doubt and see them as forthright in pushing for the antitrust bills if the key White House figure in charge of the White House’s agenda in Congress wasn’t a former Facebook lobbyist.
White House director of legislative affairs Louisa Terrell has long been a Bidenworld figure. Even before joining the 2020 transition team and being handpicked as his chief ambassador to Congress, she was the executive director of the Biden Foundation from 2017 to 2019. Before then, she worked on legislative efforts in Obama’s White House and was a member of Biden’s senatorial staff. But in between stints working for Biden, she revolved in and out of corporate gigs, most notably working as Facebook’s public policy director from 2011 to 2013. Terrell also worked as a deputy general counsel at McKinsey from 2019 to 2021, and did a six-month stint as Yahoo’s senior director for federal policy and strategy in 2008.
While a two-year lobbying gig at a Big Tech platform giant ought to be enough to warrant recusal from any future decision-making roles concerning legislative oversight of the same sector, the added context is that Terrell headed the platform’s congressional outreach efforts during some of its most aggressive anti-competitive rollups of rivals. Facebook successfully acquired Instagram in 2012 with little pushback from antitrust regulators, despite having information that CEO Mark Zuckerberg explicitly bought the photo-sharing site to eliminate a competitor. This laid the groundwork for the company’s other major acquisition of WhatsApp in 2014.
Terrell’s job during this time was to make sure Congress did not meddle with the Federal Trade Commission’s weak oversight of such acquisitions. Given such a résumé, it is no wonder Terrell has been less than aggressive in pursuing antitrust legislation targeting tech giants.
Last year, Terrell’s former employer Facebook spent over $20 million lobbying Congress. A large part of that presumably went toward quashing antitrust reform efforts, namely the Merger Filing Fee Modernization Act. That bill is a much-needed update to the FTC and DOJ’s merger oversight program that would provide the agencies with the funds to properly investigate the increasing number of mega-mergers. The House passed the bill in September with 242 votes, sending it to the Senate, where Majority Leader Chuck Schumer has not yet brought it to a vote.
Additionally, the American Innovation and Choice Online Act would prohibit Big Tech from preferencing their own products at the expense of competing businesses also using their platforms. The bill was voted out of the Senate Judiciary Committee in January of this year with 16 votes from Democratic and Republican senators. But neither Schumer nor House Speaker Nancy Pelosi has brought it up for a vote yet either.
While Facebook openly lobbies for the death of the bills, Terrell has reportedly been working to discourage them from inside of Biden’s famously anti–Big Tech administration. In early November, Bloomberg reported that in conversations around the legislation, Terrell has either ignored antitrust issues or “pivot[ed] the conversation to data privacy or other tech issues” when brought up. This led a group of anti-monopoly advocates, including the American Economic Liberties Project and the Revolving Door Project, to call on White House chief of staff Ron Klain to do everything in his power to recuse Terrell from talks around the legislation.
Back in December 2020, RDP’s executive director Jeff Hauser expressed skepticism that, given her background, Terrell would have the “instincts” necessary to “line her up behind potential populist presidential actions.” Not entirely to say “we told you so,” but the fact that the Biden administration is fumbling a stated legislative priority (and an opportunity for a lasting legacy) offers fresh evidence to suggest that these fears were warranted.
It was entirely possible for the Biden administration to hire someone who didn’t have this conflict of interest. Anti-monopoly was one of Biden’s opening salvos, a policy that distinguished him from his predecessor Barack Obama’s cozy relationship with monopolists. Biden appointed Lina Khan, who worked on the groundbreaking investigation into Big Tech’s market power and was known primarily for her work confronting Amazon, to lead the FTC. He followed up with appointing Jonathan Kanter, a plaintiff’s lawyer, to lead the Antitrust Division, setting the stage for a revamp of antitrust regulatory actions that could have a profound impact on American consumers and workers who were exploited by monopolistic companies. But when it came down to the legislation the administration knew was the key to creating a lasting legacy, Biden let Big Tech’s rooster into the henhouse.
This all comes down to that familiar mantra: “personnel is policy.” Personnel are the sum total of their experiences—and that means placing friends of Big Tech in high places can make a difference in outcomes. To enact policy that gives power back to the people from corporations, the administration needs officials who not only say they are willing to fight tooth and nail, but have the résumé of public advocacy to back it up.
Although Terrell hasn’t violated any conflict-of-interest laws, the Biden administration could have simply hired someone without clear ties to Big Tech to lead their legislative efforts around Big Tech. Perhaps they would still find themselves in the same position, but perhaps not. But at least the people could have certainty that the Biden administration’s decisions about allocating scarce political capital are not impacted by key decision-makers having close ties to those with the most at stake in the legislative response to Big Tech grinding into gridlock.
Image: “Joe Biden meets with Steve Ricchetti and Louisa Terrell” White House Photo by Adam Schultz, U.S. Government Works