Lina Khan and the Return of Anti-Monopoly
In the past few years, Lina Khan has found herself at the vanguard of a new anti-monopoly movement. But is her worldview too limited to truly rein in corporations?
Federal Trade Commission chair Lina Khan speaks during a discussion on antitrust reforms at the Brookings Institution on October 4, 2023, in Washington, DC. (Drew Angerer / Getty Images)
As his presidency comes to an end, Joe Biden’s term will be immediately remembered for its political failure to prevent the return of Donald Trump. The better aspects of his economic vision, however, will perhaps leave a lasting legacy.
Biden’s decision to nominate Lina Khan to chair the Federal Trade Commission (FTC) and his executive order in July 2021 to promote competition in the American economy weren’t accompanied by much fanfare. But they were two of the most significant actions of his presidency. For members of a resurgent anti-monopoly movement, this was the true heart of Biden’s proclaimed paradigm shift in economic policy.
Biden’s move to encourage more competition in the land of free enterprise has antagonized corporate America in ways not seen in decades. Under Khan’s leadership, the FTC has challenged proposed mergers and helped advance antitrust lawsuits against monopolies such as Amazon and Google. Its numerous investigations and rules, meanwhile, have doubled as public service announcements about what counts as anticompetitive or predatory practice. This is an unusual turn for the 110-year-old bureaucratic agency, yet it is in line with the crusading spirit behind its creation under President Woodrow Wilson and Supreme Court justice Louis Brandeis. Like them, Khan believes educating consumers and workers about the law and their rights is central to the FTC’s mandate.
The thirty-five-year-old Khan seems to have almost single-handedly renewed the Democratic Party’s once celebrated anti-monopoly tradition. During the Bill Clinton and Barack Obama eras, Democrats were largely amenable to megafirms, having acquiesced to the “consumer welfare standard” propounded by the jurist Robert Bork and neoliberal economists. Bork and his acolytes sought to radically diminish the scope of antitrust doctrine, arguing that business concentration wasn’t a threat so long as economies of scale furnished efficiencies that bolstered the nation’s wealth. Khan’s tenure, combined with actions taken by Jonathan Kanter at the Justice Department and Rohit Chopra at the Consumer Financial Protection Bureau, marks a promising break with this laissez-faire interpretation.
Her adversarial approach has rattled a tech- and finance-dominated business establishment that otherwise regards the Democratic Party as less disruptive than a Trumpist GOP. The donor class has so far tolerated industrial policy and fiscal stimulus due to the enormous business incentives contained in Biden’s flagship legislation and uncertainty around a new Trump term. But they’re very aware that stronger oversight of their business practices has the potential to popularize anti-monopoly politics and decisively overturn the discretion large firms enjoyed in the neoliberal era.
Central to Khan’s arguments against companies that abuse their market position is the belief that markets must be guided by norms other than simply delivering goods and services. That by itself has alarmed several companies that together control much of the postindustrial economy. Amazon, Google, Microsoft, and other firms have responded nervously to Khan’s policing of their actions in the name of fair competition. Criticism reached a fever pitch this summer, with one prominent venture capitalist, Vinod Khosla, publicly describing her as “not a rational human being” and someone who “doesn’t understand business.” According to the American Economic Liberties Project, an anti-monopoly think tank, the Wall Street Journal has published 122 pieces attacking Khan’s FTC.
Of course, the capitalist class exaggerates Khan’s capacity to toughen the rules of democratic capitalism and punish predatory behavior. Even proponents of antitrust enforcement liken their efforts to a game of Whac-A-Mole. Victory in one case doesn’t necessarily prevent monopolistic or coercive behavior in others. Nor is it always clear how enforcement will widely benefit consumers and workers. Competition policy is often justified to promote innovation, and in that sense effectively perpetuates the cycle of capital formation and growth that leads to new firms gaining market share. Today’s challenges, moreover, are uniquely formidable. Technological leaps and globalization have made other types of regulation, such as capital controls, even more difficult.
For much of the twentieth century, the anti-monopoly tradition undergirded American liberals’ abiding faith in “moral capitalism.” As it evolved through the postwar era, this movement sought to put a leash on market power rather than radically transform capitalism. Building state capacity to plan or otherwise intervene in the economy was always well beyond the imagination of the antitrust movement’s mainstream.
For a left that still aspires to build a strong welfare state and expand public ownership, antitrust action can seem incidental to, and perhaps even at odds with, transforming our systems of production and distribution. What, then, should we make of Khan and the anti-monopoly legacy of the Biden administration? And what will become of the movement after Trump assumes power in January?
Reclaiming the Public Interest
The spotlight on Khan has been relentless since well before her term as FTC chair began in June 2021. Several profiles have recounted that, in 2017, at age twenty-nine, she published a widely circulated paper for the Yale Law Journal that explained Amazon’s exercise of monopoly power across a range of market roles, from retail distribution to the expanding realm of technology and media services. Lengthy coverage of her arguments followed in the New York Times, the Atlantic, and other major publications as more business journalists began to probe how the economy’s digitization had led to new concentrations of wealth.
By the Trump era, it was clear that flatlining wages, deindustrialization, declining union membership, and tax cuts for the rich were only part of the story. As Khan and others in the neo-Brandeisian movement saw it, a new crop of monopolies had captured the digital infrastructure on which most Americans now depended to meet their routine needs. Firms as different as Amazon and Uber could engage in systematic predatory pricing at a scale and pace previously unknown. Platforms designed to manipulate users and extract additional revenue hurt consumers while intensifying the “gigification” of labor. But in some cases they also squeezed competitors and effectively set up barriers to market entry. The result was an increasingly oligopolistic system in which economic development could not take place outside the channels controlled by Silicon Valley and Wall Street.
Khan’s intellectual rigor undoubtedly propelled her ascent among policymakers hoping to reestablish a modicum of government oversight after the deregulatory zeal of the Trump administration. Yet it is her understanding of what markets ought to do that has distinguished her time in government. Echoing past reformers who believed markets must serve society, not the other way around, Khan has reclaimed a more expansive definition of the public interest that has the potential to appeal to Americans across partisan divides. In an era marked by hyperpolarization, this talent has made her an even more dangerous foe for Big Tech, venture capitalists, and private equity. Indeed, few other appointed officials have crystallized what many people suspect to be true of the postindustrial economy into language that so consistently illuminates how monopolies endanger our rights as citizens.
Her FTC leadership broadly reflects an attempt to combine the principles of consumer protection and fair competition. As advocated by Senator Elizabeth Warren and other modern anti-monopolists, prudently regulated markets generate three positive outcomes: just prices, prohibitions on fraud and predation, and restraints on ruinous competition to protect smaller enterprises and support local wages and employment. In essence, the goal is to maintain an equilibrium wherein consumer purchasing power is generally maximized without undercutting the benefits of decentralized markets.
As a result, this school advocates a broad conception of consumer welfare. Consumer well-being, according to this view, cannot be reduced to paying the lowest potential price for a given product or service at a specific moment in time. Rather, it means having some basic agency and flexibility to organize one’s household economy according to one’s wants and needs. That in turn requires not being wholly dependent on just a few businesses. When firms get so large that they eliminate existing rivals and preclude the market entry of future competitors, “consumer choice” becomes entirely contingent on the decisions of monopolists.
The seller’s inflation that fueled price hikes during the COVID-19 pandemic’s supply chain shocks was a stark reminder of how large firms with captive customer bases can become rapacious price fixers. They likewise could pad profits by lowering the quality of their goods, hence confirming the ardent belief of trustbusters that unrestrained corporate concentration harms living standards in the long run.
During her tenure, Khan has tried to prevent a repeat of this behavior by putting her far-ranging consumer protection doctrine into practice. To deter both extreme offenses and routine chicanery, she has wielded the FTC’s powers of investigation and rulemaking liberally.
Guided by the conviction that fair competition and transparency go hand in hand, she has devoted considerable firepower against data-driven rent-seeking. Algorithmic surveillance pricing and opaque junk fees are just two of the techniques Khan has flagged as being responsible for stealth increases in prices. Though commonplace, as seen in the travel industry and online retail, such practices have left many Americans worse off without them always realizing why they feel poorer. In other cases, Khan’s FTC went after a corporate landlord who forced illegal evictions during the pandemic, helped bring down the cost of inhalers by challenging bogus patent listings, and sued pharmacy benefit managers for inflating the price of insulin.
More than any one accomplishment, this record of stepped-up oversight has made several industry leaders irate, even as Khan has won plaudits from some businesspeople, including liberal voices in the so-called Little Tech sector. It’s all made for a sensational media narrative, particularly given Khan’s age and Pakistani family background as well as her adroit interview skills.
Individually, however, the FTC’s scattered victories are only minor dents in the armor of global capital. Khan has expressed confidence in deterrence, noting, for instance, that some companies facing scrutiny have abandoned proposed mergers. But the FTC, despite its more militant turn, can only do so much. For example, while it may impose civil penalties for certain illegalities, conduct studies that could provide blueprints for congressional legislation, and sue companies, it doesn’t have the police power to seek large damages or directly break up monopolies. Efforts to actually restrict and eliminate specific types of anticompetitive behavior, moreover, can easily get bogged down in the lower courts, where conservative judges take a dim view of challenges to corporate liberty.
The FTC’s efficacy is also limited by what it can detect. In practice, this typically means Khan’s team and its counterparts at the Consumer Financial Protection Bureau and Justice Department are pursuing redress in the wake of significant economic harm, sometimes inflicted over months or years. That process of information gathering is no doubt integral to developing robust legal cases for violations of consumer protection and antitrust law. But as the FTC’s ramped-up oversight reveals, behemoths like Amazon aren’t the only businesses guilty of monopolistic and anti-worker practices.
In one of the more egregious examples recently highlighted by Khan, a woman who suffered sexual harassment at her restaurant job was sued by the owner for breaking a noncompete agreement after she quit and started working at another restaurant. Cases like this suggest that a distinct rot pervades the economy, raising the perennial question of whether our laws have been subverted by wrongdoers or if they intrinsically favor domination over justice.
A More Radical Approach
Despite the FTC’s limited authority, Khan’s champions hope her actions will help spark a national reckoning over economic coercion and exploitation. But there are structural impediments the media plays down. The broad depoliticization of the economy between the 1980s and 2000s, coaxed along by the credit card industry and followed by the explosion of app-based consumerism in the last decade, has resigned millions to constant financial extraction that in the past would have incited agrarian radicals, municipal socialists, and consumer advocacy leagues. Outcry on social media over specific injuries like high food prices and unfair airline fees continues to give way to broader currents of apathy.
There are signs that Khan traces the roots of such apathy to the disempowerment of US workers. Earlier this year, she extended her mandate to labor issues by attempting to ban noncompete clauses. The move directly appealed to the ideal of free labor, battered yet still ingrained in the American psyche. Though it was blocked in August by a conservative federal judge in Texas, Khan’s rule signaled how the anti-monopoly tradition can align with workers’ rights advocacy.
“Noncompete clauses systemically drive down wages, even for workers who aren’t bound by one,” she explained last year in an op-ed for the New York Times. “If employers know their workers can’t leave, they have less incentive to offer competitive pay and benefits, which puts downward pressure on wages for everyone.” As has proved characteristic of Khan’s public statements, this argument effectively makes the case that curbing coercion isn’t just a matter of fairness but is critical to fighting inequality and improving the nation’s economic health. She holds that the oppressive noncompete status quo, which directly affects some thirty million workers, blunts innovation and hurts the economy.
These arguments suggest that a more radical anti-monopoly tradition is at play in Khan’s thinking. While the FTC’s purview may seem intrinsically limited to piecemeal reform, Khan likely sees her responsibilities as part of a larger egalitarian project. “Markets,” from this standpoint, are not a euphemism for capitalism, if the latter is simply understood as a system of profit maximization and accumulation. Instead, they exist and are justified insofar as they meet social ends: the provision of goods that sustain shelter, sustenance, health, education, and culture. In other words, markets are an instrument of mutual development between citizens and their communities — but only so long as an egalitarian ethos prevails. When labor becomes ensnared by the dictates of monopolists, Khan suggests, the foundations of development deteriorate.
That vital understanding of labor power distinguishes anti-monopolism from Friedrich Hayek’s libertarianism and other pro-market schools of thought. As told by antitrust revivalists, the fight against monopoly power throughout US history has been more than a battle to preserve economic liberty for those without privilege or political favor; the goal is to realize the ideal of economic self-government in virtually every sector and dimension of society.
Several elements of this vision are broadly compatible with democratic socialist thought. The principles of noncoercion, decentralized production, and republican self-determination that form the bedrock of anti-monopolism have factored into debates about how to transform the economy to provide social protection, good living standards, and the relative freedom to use one’s labor as one wishes. Admittedly, these aspirations are not easy to reconcile, but they do reflect an overarching quest for egalitarian development — that is, a system that enables every participant in society to contribute to the general welfare and to benefit from it without fear of fraud or subjugation.
Tethered to the Market
Anti-monopoly politics has been part of the United States since its founding. A critique of concentrated economic power persisted throughout the nineteenth century. Andrew Jackson, speaking to his small proprietor base, warned in 1837 of the encroachment of “money power,” and on the eve of the Civil War, Abraham Lincoln’s Republican Party rallied free labor against the concentrated interests of the slaveholder class.
Anti-monopoly sentiment resurfaced again at the end of the nineteenth century, a period of fervid labor militancy and agrarian radicalism. High interest rates in the agricultural periphery charged by eastern financiers, state capture by the trusts, industrial combinations whose new economies of scale displaced artisans and other small producers, and merciless strikebreaking, particularly in mining and steel, led to a Gilded Age that culminated in depression by the mid-1890s.
The newly formed People’s Party, or the Populists, confronted the avarice and exploitation permitted by the political economy of the day. But while their grievances echoed those of their predecessors, the Populists’ approach went further in advocating an alternative development paradigm. The campaign for inflationary monetary policy, business regulations, public utilities, cooperative ownership, rail nationalization, progressive taxation, and agricultural subsidies transformed anti-monopolism into a movement that demanded more significant and aggressive state intervention.
This profoundly shaped the anti-monopoly tradition’s subsequent trajectory. Between the 1820s and the Progressive Era, anti-monopoly politics morphed from a romantic conservative vision of self-reliance into a framework to remedy the social ills generated by the capitalist economy. Despite quickly fading after their alliance with the Democrats in the 1896 election, the Populists showed that anti-monopolism was no longer merely a basis for political agitation and grassroots organizing; it offered concrete approaches to market governance that the New Deal state would later adapt. In short, it represented a new synthesis of freedom and positive government that the party system could no longer ignore.
Following its radical zenith, anti-monopolism was gradually absorbed into the very corporate order it had sought to tame. The result, spread over several decades, has been a source of scholarly debate ever since. Did the corporate liberalism of President Wilson, business progressives, and, later, Cold War liberals enervate anti-monopoly politics by prioritizing targeted antitrust enforcement over other goals? Did antitrust doctrine become a tool that primarily aided market growth, technological breakthroughs, and entrepreneurs in emerging sectors? And did this technocratic turn consequently push alternative ownership ideas to the margins?
These questions are frequently raised by those on the Left who see anti-monopolism as occasionally radical in rhetoric but ultimately confined to seeking solutions within market society. The corresponding worry is that anti-monopolism remains a mission to make markets fair and competitive when, in our current moment, democratic capitalism seems beyond resuscitation. Emboldened regulators like Khan may be able to deter some of the worst market abuses, left-wing critics grant, but anti-monopolism has no comprehensive answer to the crisis of underdevelopment and inequality. The battles between Khan and corporate power, then, amount to an intellectual drama for Beltway journalists — one that is patently unable to stimulate the kind of mobilization witnessed in the 1890s.
A more forgiving interpretation suggests anti-monopolism is not so disconnected from its radical past as it seems. Encouragingly, contemporary proponents tend to regard anti-monopolism as the hidden fulcrum of the New Deal’s more progressive aspects. The development of the South and the West through federal programs and the construction of public power, including the Tennessee Valley Authority, they note, would not have been possible without the ideas and advocacy of anti-monopolists. The same holds for the spread of energy and agricultural cooperatives. Meanwhile, if it did not always cohere with the aims of the labor movement, assertive antitrust enforcement nevertheless coincided with the high tide of union membership between the 1930s and ’70s. Before the crises of that ultimate decade, mid-century liberals generally believed that regulated markets, development programs, collective bargaining, and expanded welfare benefits could be pursued together. Most of today’s prominent anti-monopolists likewise view these goals as compatible and critical to democratic renewal.
Perhaps the best indication that anti-monopolists are channeling the movement’s roots is their iron sense of purpose. Khan has withstood the onslaughts of the business press and vocal Democratic donors like billionaire Mark Cuban and venture capitalist Reid Hoffman. Though she has to appear even-keeled and relatively nonideological as an appointed public servant, she and other anti-monopolists in the Biden administration evidently relished their mission. Such determination arguably reflects the long view of the tasks at hand: that the stakes in our current political environment are urgent but not definitive. No single defeat in court — or unfavorable shift in party power, for that matter — is likely to dishearten Khan or others who frame the current fight as but the latest chapter in a centuries-long contest for true liberty.
What happens next for Khan and her cohort is less certain. In January, Trump will inherit an FTC with a recent track record of aggressive antitrust enforcement. His vice president, J. D. Vance, praised Khan as “one of the few people in the Biden administration” who has done a good job. Yet the dominant conservative view is still captured by House Oversight Committee chair James Comer, who complains that “Khan will stop at nothing to accomplish the radical left’s desired ends.”
It’s no surprise, then, that this week Trump announced that he would replace Khan with Andrew Ferguson. Attacks on “woke capital” — the main source of the GOP’s anti-monopoly rhetoric — have already served their political purpose, while reports suggest a new wave of mergers and acquisitions is imminent.
Still, Trump’s obsession with economic growth and domestic industry, along with his much stronger backing from Silicon Valley this election, may rouse demands for fair competition in unlikely quarters. As the Democratic Party struggles to regroup, the burden will fall on the Left to advance Khan’s legacy in a more radical direction.