Reports that Harvard Law Professor Einer Elhauge is being considered for a role in the Biden Administration should be treated with extreme caution due to his history of ties to Big Tech and work for the Republican Florida legislature in 2000. Although we at RDP applaud Elhauge’s recent pivot to support strengthening antitrust laws, we urge the Biden Administration to hold appointees to the highest possible standard. In particular, helping promulgate the absurd theory in 2000 that state legislatures can overrule elections conducted under laws they have passed should be disqualifying for any individual attempting to serve in the Biden Administration.
Elhauge’s 2009 use of Google funding to write a pro-industry paper is also concerning. The Biden Administration’s emphasis on antitrust policy and the transpartisan momentum for tackling Big Tech monopolies will only be given life by appointing committed opponents of Big Tech.
Here are some concerning aspects of Elhauge’s political history:
Elhauge is a former Republican who served as counsel for the Republican-dominated Florida House of Representatives in 2000, during which he argued that valid votes should not be counted, undermining the results of the election.
- In 2000, Elhauge served as counsel for the Republican-dominated Florida legislature and represented them during the 2000 election dispute.
- Elhauge published several articles arguing the Republican case for a Bush victory in 2000. In a 2000 New York Times op-ed, Elhauge argued that the Bush lawsuit was fighting “an election system run by partisan county officials who lack any objective standard for whether or how to conduct manual recounts, and who have allegedly exercised their power in a discriminatory fashion.” In another op-ed for The Wall Street Journal, Elhauge argued that there were no irregularities in Florida, and the Democrats’ case had no “legal significance.”
- Elhauge claimed in 2001 that Florida statute “did limit manual recounts to cases of machine malfunction,” justifying the undercounting of votes for Al Gore.
- In the same 2001 article, Elhauge argued that the Florida court in 2000 was dominated by “activist liberal Democrats,” skewing their judgement towards Gore, and questioned whether manually counting ballots was unconstitutional.
- Elhauge’s work in 2000 for the Bush campaign in Florida provided the precedent for Trump’s attempted overthrow of the election results in 2020. Both of the Trump Administration’s lawsuits attempting to overturn the 2020 election results in Pennsylvania cited Bush v. Gore as precedent, with one of them specifically calling for the use of the “plenary authority” of state legislatures.
In 2009, Elhauge wrote an article funded by Google defending Google Books’ antitrust settlement, which was widely criticized as being too soft on Big Tech
- A footnote in Elhauge’s 2009 article “Framing the Antitrust Issues in the Google Books Settlement” disclosed that the article was funded by Google. Elhauge argued that the Google Books Settlement was “procompetitive.”