Today’s Congressional Hearing Will Test Big Tech’s Simplest Algorithm: If An Ex-Regulator, Then Hire

The tech companies set to testify before the House today knew for years that a reckoning was in the works. They’ve been building up their defenses, and a key component of that defense is the antitrust enforcement officials who take a trip through the revolving door to the benefit of corporate clients. 
(COMBO) This combination of pictures created on July 07, 2020 shows (L-R) Facebook CEO Mark Zuckerberg in Paris on May 23, 2018, Google CEO Sundar Pichai Berlin on January 22, 2019, Apple CEO Tim Cook on October 28, ... (COMBO) This combination of pictures created on July 07, 2020 shows (L-R) Facebook CEO Mark Zuckerberg in Paris on May 23, 2018, Google CEO Sundar Pichai Berlin on January 22, 2019, Apple CEO Tim Cook on October 28, 2019 in New York and Amazon Founder and CEO Jeff Bezos in Las Vegas, Nevada on June 6, 2019. (Photos by AFP) (Photo by BERTRAND GUAY,TOBIAS SCHWARZ,ANGELA WEISS,MARK RALSTON/AFP via Getty Images) MORE LESS
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July 29, 2020 9:00 a.m.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

After months of heightened antitrust scrutiny, the House Judiciary Committee has finally set up a blockbuster confrontation with big tech: the CEOs of Apple, Amazon, Google and Facebook will testify Wednesday before the committee on their companies’ dominance as digital platforms.

The hearing is part of the Antitrust Subcomittee’s investigation into the companies and the “adequacy of existing antitrust laws and enforcement.” While the congressional hearing itself won’t break up big tech, the actual antitrust enforcers are also investigating those same companies: the Department of Justice Antitrust Division is pushing forward with their investigation into Google, while the Federal Trade Commission continues its probe into Google, Amazon, Apple, Facebook and Microsoft. As American Economic Liberties Project’s Sarah Miller recently explained, this cross–political party effort to confront monopoly power was unthinkable 18 months ago, yet takes on even more importance as the pandemic further entrenches the power of the four companies which dominate e-commerce, social media, online advertising and the Apple App Store respectively. 

Yet these companies knew for years that a reckoning was in the works. They’ve been building up their defenses, and a key component of that defense is the antitrust enforcement officials who take a trip through the revolving door to the benefit of corporate clients. 

At antitrust enforcement agencies like the FTC where 52 of 81 officials joined private law firms or acquisition-fueled corporations after departing the Commission defending corporate clients after ostensibly serving public interests is increasingly the norm. This norm extends to the legislative branch as well as the executive: Hal Singer recently wrote in the American Prospect on the concerning rise of congressional staffers flocking to big tech jobs, taking with them knowledge of the latest attempts to fix holes in antitrust laws and regulation. Singer expertly dissects the conflicts of interest in these professional moves, noting “there’s a strong public-interest motive to deny this free exercise of movement from government to the corporate sector if it conflicts with proper corporate regulation.”

The tech giants facing the hot seat in July benefit from and feed into this culture both through direct hires, retaining BigLaw counsel that also hires former antitrust officials, and through the general corruption of incentives at the enforcement agencies which favors corporate interests over public. 

Amazon has directly hired at least four antitrust officials since the beginning of the year. The Revolving Door Project previously tracked at least three FTC officials who joined Amazon in early 2020: Amy Posner and Elisa Kantor Perlman became corporate counsels, and Antara Dutta became a principal economist. Amazon’s newest hire, Scott Fitzgerald, hails from the DOJ Antitrust Division, where he worked on health care industry cases in the Litigation I Section and eventually became the assistant chief of the Healthcare and Consumer Products Section. Fitzgerald joined Amazon in May as an in-house antitrust corporate counsel.

With Bezos’s upcoming testimony and Amazon’s ongoing DOJ investigation, Fitzgerald will soon find himself in the position of defending Amazon against the members of Congress who just three months ago oversaw his work, as well as his colleagues at the DOJ. He joins fellow revolver Nate Sutton, the Amazon competition counsel and former DOJ Antitrust lawyer who is under investigation for potentially misleading Congress on the company’s data practices. Sutton testified that Amazon doesn’t use “individual seller data directly to compete” with third-party businesses, a claim the Wall Street Journal proved false earlier this year. There’s also Bryson Bachman, the former senior counsel to Assistant Attorney General Makan Delrahim. Amazon poached Bachman amidst heightened antitrust scrutiny in 2018.

And we would be remiss not to mention that antitrust expert and former DOJ Antitrust official Fiona Scott Morton has been advising both Amazon and Apple. Morton has co-authored papers on the antitrust case against Google and Facebook, and has espoused guidance on the future of antitrust enforcement, all the while getting paid by the other half of the big tech problem. Morton likely advises Amazon and Apple through her position as a senior consultant with Charles River Associates, one of the economic consulting firms that sell expert insight to both the antitrust agencies and corporations. 

In fact, Amazon needn’t always hire former antitrust officials directly. Bezos is being advised by Covington & Burling, a politically-connected BigLaw firm that boasts at least 13 competition lawyers that worked for either the FTC or DOJ Antitrust before joining the firm, including former FTC commissioner (and former Biden advisor) Terrell McSweeny. Amazon’s named counsel from Covington is Robert K. Kelner, who specializes in guiding corporations through congressional investigations. 

Amazon is not alone in its aggressive poaching: the rest of big tech has also hired former antitrust officials to bolster their legal teams. Back in 2018, Facebook made headlines for hiring the former DOJ Antitrust chief in San Francisco, Kate Patchen, amidst increasing antitrust scrutiny. Facebook is pulling a similar move this year: the company hired former FTC deputy director Barbara Blank this April. Blank led the Bureau of Competion’s Anticompetitive Practices division, which focuses on shaping Commission-wide policy as well as enforcement efforts. Of course, big tech isn’t just looking to poach former antitrust officials as part of its strategy to avoid federal attention Facebook’s recent hire of Sen. Richard Blumenthal’s (D-CT) formal counsel on the Senate Judiciary Committee illustrates their appetite for congressional staffers as well. In May, Facebook poached Aparna Patrie as the company’s new manager of public policy for its News Tab feature, which has attracted considerable attention given its role in shaping the information users see.

In March, Apple hired former DOJ Antitrust senior counsel for intellectual property Frances Marshall as a senior standards counsel. Apple is also currently on the hunt for a new in-house competition counsel, noting in the job listing that “preference will be given to candidates with government antitrust experience.”

Google, meanwhile, has antitrust revolvers like their senior competition counsel (and former DOJ Antitrust attorney) Kevin Yingling to help shepherd the tech giant through the various investigations relatively unharmed. But the revolving door might work in Google’s favor more pervasively: The DOJ reportedly hired “name brand” outside counsel to spearhead potential litigation against the company, seemingly owing to conflicts of interest in the Antitrust Division’s leadership. Assistant Attorney General Makan Delrahim recused himself from the investigation, as he lobbied the DOJ in favor of Google’s 2007 acquisition of DoubleClick while at Brownstein Hyatt Farber Schreck. Delrahim’s deputy, Barry Nigro, also recused himself from the case for unknown reasons; it could be related to his many years at BigLaw practices like Fried Frank. 

The recusal of the Antitrust Division’s top two enforcers makes clear just how entrenched Google is at the highest levels of the antitrust world. Right now, there is a dizzying absence of trustworthy and sustained government experience on the case. As it stands, the case is led by Attorney General Bill Barr, a seemingly corrupt consigliere to President Trump worthy of impeachment; an outside counsel (likely from a BigLaw firm) yet to be named; and two officials who both joined the Division less than nine months ago. Of course, those officials, Ryan Shores and Alex Okuliar, have plenty of experience from the other side of the aisle: Before joining the Division, Shores was a partner in Shearman & Sterling’s antitrust practice, while Okuliar came from an antitrust partnership at Orrick, Herrington & Sutcliffe. While their experience might qualify Okuliar and Shores to lead the case in the eyes of the Antitrust Division, their extensive corporate advocacy may hint at another BigLaw gig in the future and further undermines the ambitions of career DOJ lawyers who hope to ascend to top posts with public service experience alone. 

While supporters herald the Antitrust Division’s case against Google as a long-in-the-works reckoning, the case is distressingly in the hands of officials with conflicts of interest. And that is the power of the revolving door: even when those with explicit conflicts of interest have left the room, those who are left still have questionable dedication to the public interest. 

The hearing and investigations are an important step in confronting Amazon, Apple, Facebook, and Google, but nonetheless, these companies will continue to use the former government officials who get jobs defending private interests to protect and bolster their monopoly power. To truly challenge the power of big tech, Congress, a potential-future Biden administration and the antitrust enforcement agencies must dismantle the revolving door culture at the agencies and restrict the influence of “career” antitrust officials who choose to leave public service for corporate clients. 

 


Andrea Beaty is a research assistant at the Revolving Door Project

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