This article first appeared in Common Dreams. Read it here.
The Federal Trade Commission (FTC) and DOJ Antitrust Division have long served as an essential stop for antitrust experts looking to maximize opportunities, influence, and compensation at BigLaw firms and monopolistic corporations. By spending some time learning the ins and outs of government investigations and enforcement efforts, revolvers are seen by potential corporate employers to be better equipped to assist corporations in antitrust lawsuits against their former government employers.
This well-trodden path of revolvers has weakened enforcement at the agencies, creating a crisis of incentives for officials who want to build up their credentials while in public service but don’t want to do too effective of a job for fear of upsetting potential future corporate employers. But the stakes have changed now that Lina Khan and Jonathan Kanter are at the helm of the FTC and Antitrust Division. The agencies are attempting to reverse a 40 year trend of ineffectual antitrust enforcement and rooting out officials who settled into an enforcement complacency that benefited corporations on merger sprees. Big moneyed interests are not pleased with their loosened hold on the antitrust enforcers, and they’re doing everything they can to undermine the credibility of these agencies and their leadership.
To this end, the revolvers are speaking loudly in service of their employers’ interests—and corporate media eats it up. Media organizations love to bring on former government officials as expert opinions—especially when those supposed experts served under Democratic administrations and are now attacking progressive antitrust measures. This tactic has become commonplace as the agencies are fulfilling a mandate that has “no more tolerance for abusive actions by monopolies, [or] bad mergers that lead to mass layoffs, higher prices [and] fewer options for workers and consumers alike.” This is the type of antitrust enforcement that Biden has called for and that the American people need and want, but corporations–and the revolvers they employ–do not.
These former regulators are rarely described as anything other than ex-officials. The oft-undisclosed truth is that they have glaring conflicts of interest that may account for their aversion to breaking up monopolies, preventing corporate mergers, or implementation of new rules that protect workers and consumers.
Doug Melamed’s Ties To Monopolistic Corporations Are Stronger Than His Public Service Record
Take Douglas Melamed, for instance. Once dubbed by a former colleague the “Michael Jordan of the legal profession”. From Straight Arrow News, to CNBC, to The Seattle Times, to The New York Times, Melamed is regularly quoted in the media as an expert on all things antitrust. In doing so, reporters tend to reference his past experiences as the acting assistant attorney general in the Justice Department’s Antitrust Division during the high-profile 1990s Microsoft trial, or his current position as a Stanford Law School professor. However, what usually goes unmentioned is Melamed’s long career as a corporate lawyer, assisting would-be monopolies navigate antitrust law in order to secure mergers and acquisitions.
Prior to joining the DOJ in 1996, Melamed spent 25 years at BigLaw firm WilmerHale (f.k.a. Wilmer, Cutler, & Pickering). In his first stint with the firm, Melamed defended corporate clients in cases against regulatory agencies. Melamed represented media conglomerate Capital Cities, which owned ESPN and ABC, in a 1990s lawsuit against the FTC. He and his colleagues managed to convince the FTC that the College Football Association, which was marketing college football games to television networks for millions of dollars, was outside the FTC’s jurisdiction because it was nominally a non-profit entity. As if college football programs are not avid profit-seekers engaged in high-profile and highly remunerative commerce! In other words, Melamed was talented at convincing people to accept absurd arguments on behalf of the powerful.
Following his stint at the DOJ, Melamed took his connections and knowledge of government back to WilmerHale to serve as chair of their antitrust practice, where he defended corporations from accusations of anti-competitive practices. For example, Melamed served as lead counsel for Rambus Incorporated in a case seeking to overturn the FTC’s finding that Rambus had engaged in anti-competitive practices. He represented Verizon in its acquisition of MCI and Bayer in its acquisition of Aventis. In short, Melamed spent the bulk of his career helping powerful corporations get even more powerful—i.e., helping Goliaths fend off Davids.
Melamed then left WilmerHale to serve as in-house counsel for tech giant Intel shortly after the company was fined $1.45 billion by the European Commission for anti-competitive practices. Under Melamed’s leadership as Senior Vice President of Intel’s legal department, the company was sued by the FTC for “abusing its market dominance to stifle competition.” Melamed called the suit “misguided and unwarranted” — despite Intel commanding an astounding 81% of the computer chip market. Such a quote is unsurprising from the counsel defending a corporation, but it certainly does raise questions about his efficacy as an antitrust expert in the media today.
The Revolving Door Leads To Big Tech Dollars
Melamed may be the go-to revolver for corporate media, but he’s not the only former antitrust official that has cashed out on his government credentials. Former regulators are often given op-eds to sound the alarm on potential regulation of Big Tech monopolies, despite having (undisclosed) financial interests in those matters.
In 2019, Fiona Scott Morton, former deputy assistant attorney general in the Antitrust Division, penned an op-ed in the Bezos-owned Washington Post titled, “Why ‘breaking Up’ Big Tech Probably Won’t Work.” As The American Prospect pointed out, Scott Morton failed to disclose that she was a consultant for Apple at the time. Scott Morton feigned ignorance, claiming the piece did not warrant a disclosure. Not only is Apple obviously a Big Tech giant, and the break up of one tech giant could lead to industry-wide scrutiny, but Scott Morton also defends Apple in the article, stating, “[…] Apple owned the tablet market in 2011. If a product gets a big share because it is good and popular — but its maker has not behaved anti-competitively toward its rivals — it has not violated our antitrust laws.” Obviously, Scott Morton wasn’t going to mention Apple’s slew of anti-competitive practices in various areas—music streaming, app store rules, Apple Pay—but denying a conflict of interest is absurd on its face. Scott Morton has since gone on to also consult for Amazon, so it’s no wonder that she opposed any break up of Big Tech monopolies.
More recently, former FTC Chair Jon Leibowitz authored an op-ed in the Wall Street Journal titled “How Congress Can Protect Your Data.” Leibowitz’s bio under the piece only lists his experience as an FTC chair and commissioner, saying nothing of his work with the broadband provider trade group 21st Century Privacy Coalition that includes data collectors Comcast, AT&T, and Verizon. The group opposed privacy laws that were rolled back under Trump’s FCC, a move that led to widespread outrage among advocates and consumer groups.
At the time, Leibowitz spoke to CNN about the roll back and said consumer fears were misplaced. CNN did not initially disclose Leibowitz’s financial interest in the matter, before later including a mention of his work with the trade group. In the WSJ article, Leibowitz does ultimately favor increased data protection, but warns that the FTC will “go farther” than Congress if it fails to act and “[FTC] regulation isn’t an optimal approach.” Leibowitz’s undisclosed conflicts of interests leave one to wonder whether he truly thinks legislation (which Big Tech would inevitably lobby Congress to make weaker) is the best approach, or is merely worried that an FTC rule will impact him financially.
Attacks On Progressive Antitrust Are Not Credible
Given what we know about their work history, it comes as no surprise that these revolvers use their media appearances to attack progressive antitrust enforcement. For example, the FTC recently lost its challenge of Meta’s acquisition of Within, the virtual reality company behind a popular fitness app. But Khan said the challenge itself sends a message that enforcers think there is a problem in the market and believes that a loss is still valuable, as it sends a message to Congress that stronger legislation is needed. As Matt Stoller observed following the judge’s ruling, the loss might be a “Pyrrhic victory for big tech and dominant firms […] it’ll be the kind of stinging opinion that a lot of enforcers will cite going forward.”
Melamed, however, called Khan’s train of thought “kind of nutty.” Melamed’s former employer Intel partnered with Meta to use their Wi-fi cards in Meta’s virtual reality headset, but this conflict of interest goes unmentioned. In 2020, when the DOJ was preparing its antitrust lawsuit against Google, Melamed defended the tech giant, stating that Google’s acquisitions were likely lawful and that forcing divestitures should be approached “with great care.” Did he disclose that Intel and Google are partnered on cloud infrastructure and work together on a variety of products? Nope.
Even when regulators don’t get mainstream media appearances, they still find other venues to undermine antitrust leadership in service of their current jobs as corporate lawyers. The legal trade publication Law360 gave a platform to David Gelfand, the deputy assistant attorney general in the Antitrust Division under Obama. Gelfand, who has spent the majority of his career as a BigLaw attorney helping corporations complete mergers, used his op-ed to lambast Kanter’s Antitrust Division for blocking too many mergers.
Law360 also published an article that quoted Debbie Feinstein, former director of the FTC’s Bureau of Competition, after her comments at Tulane Law School’s Corporate Law Institute Conference. Feinstein expressed concern that the DOJ is bringing lawsuits to prevent mergers, when previous administrations would have cleared the deals. To its credit, Law360 did mention that Feinstein is a lawyer at Arnold & Porter. However, Law360 does not mention that Arnold & Porter itself has been sued by a different DOJ division, nor that Feinstein was lead counsel for Arnold & Porter’s antitrust team when it worked with O’Melveny & Myers to represent Penguin Random House against the DOJ. Of course Feinstein isn’t in favor of the DOJ’s new direction—it blocked her client’s $2.2 billion deal!
These former Democratic regulators are not alone in their critiques of progressive antitrust enforcement— they’re joined by their Republican counterparts who share an affinity for both monopolies and revolving to the private sector.
Deborah Garza, former Antitrust Division assistant attorney general under George Bush, baselessly called the new antitrust direction an “unholy alliance” between MAGA and progressives. This is absurd on its face, but even more so considering that Trump’s own FTC appointees Chistine Wilson and Noah Phillips relentlessly criticized Khan’s leadership. Wilson, who recently resigned, spent the last of her four year tenure complaining about FTC Chair Lina Khan’s pivot away from the consumer welfare standard. Former FTC Chair Timothy Muris, who previously joined Melamed in Verizon’s legal defense during its MCI acquisition, regularly criticizes Khan’s leadership. It turns out that if you spend your career revolving between representing corporations and regulating corporations, you tend to favor a lax regulatory framework that allows corporate power to flourish.
Conclusion
Many former Democratic regulators have spent their careers practicing a form of antitrust law enforcement that benefits corporations. It is pro-industry and pro-consolidation, so long as firms pinky promise not to raise prices for consumers. This is just one approach to antitrust enforcement — an interpretation that is, in fact, at odds with the Biden administration’s stated goals of expansive antitrust enforcement.
Because these former officials are ostensibly Democrats, the media attempts to frame these viewpoints as that of a level-headed expert attempting to rein in his own party’s excesses. As we pointed out in The American Prospect, certain media types love to harp on “friendly fire” from Democratic revolvers, despite their allegiances to corporations over the Democratic party and its goals. It’s clear that Melamed and company are more interested in running cover for corporations with monopolistic intentions than helping Democrats pursue the type of antitrust regulations that Americans want. Those that fail to acknowledge this point when quoting former regulators — especially when contrasting their opinions with those of more progressive antitrust enforcers like Lina Khan — run the risk of losing credibility and laundering conservative legal thought under the guise of neutral “expertise.”
Image Credit: “Federal Trade Commission Building (c.1940)” by E.B. Thompson