Longtime Google critic Jonathan Kanter is quickly becoming the preferred choice of tech skeptics on both sides of the aisle to lead the Justice Department's antitrust division and its case against Google, sources tell Protocol.
The preference for Kanter over his potential rival, Obama administration alumnus Jonathan Sallet, is the latest instance of progressive and conservative tech critics finding common ground over their anger at dominant tech companies, even as they struggle to find solutions they can agree on, according to multiple people familiar with the discussions happening on Capitol Hill.
"Kanter would have a much cleaner confirmation hearing," Rachel Bovard, senior director of policy at the Conservative Partnership Institute, told Protocol of her discussions about the "key position" with lawmakers. "He seems to have more trust among Senate Republicans right now than Jon Sallet does."
President Joe Biden has yet to nominate anyone for the position, and the slim Democratic majority in the Senate might mean that votes from conservative anti-tech lawmakers such as Sens. Ted Cruz, Mike Lee, Marsha Blackburn and Josh Hawley wouldn't be necessary for confirming any nominee. But if any Democrats defected, Republican votes could fill out the total. Those four senators' positions on the Judiciary Committee also mean they can make a nominee's confirmation process more — or less — bumpy, regardless of how they vote.
The competition
Republican members of the Judiciary Committee who are curious about Kanter haven't necessarily decided how they would vote, and would likely still have issues with his broader liberal views on competition law, a Republican senior staffer told Protocol, but they generally prefer him to Sallet.
"No Republican is choosing Jonathan Kanter to head up DOJ antitrust" in isolation, the aide, who asked not to be named, said about the lawmakers' thinking. "That being said, with those two choices, it's not particularly close."
The Republicans in question view Sallet as one of the people who let the tech giants grow out of control in the first place, sources said. Sallet served in President Obama's antitrust division and later as general counsel of the Federal Communications Commission, where he was a key figure in implementing net neutrality regulations that conservatives tend to despise.
More recently, Sallet worked as a staffer for Colorado Attorney General Phil Weiser to help build one of the major multistate antitrust suits against Google currently in progress.
Kanter, too, has supported an antitrust case against Google, but members of the Biden administration have reportedly expressed concerns Kanter's stance might pose ethics problems if he gets the job. Advocates for Kanter's nomination contend that it's ethical to fight alleged antitrust violations from within the department after complaining about them from the private sector, although regulations limit government lawyers' ability to work on some issues involving their recent clients or those of a former firm.
Still, Kanter has received support from progressive advocacy groups such as Public Citizen and MoveOn, members of Congress including Rep. Mondaire Jones, and seemingly even former Secretary of State Hillary Clinton.
The stakes
The stakes are perhaps highest right now for Google, specifically. Big Tech skeptics hope whoever ends up at the top of the antitrust division would demand harsher penalties in any potential settlement talks with Google, push aggressively in court for a breakup and maybe even launch additional cases to encompass conduct not in the current complaint. The Justice Department in the past two years has also investigated Facebook, Apple and other tech companies. Any one of those probes by itself could theoretically remake whole markets that consumers across the world rely on, and set far-reaching court precedent.
Although some Republican lawmakers have spent decades championing policies friendly to big business, many increasingly view the largest tech companies as menaces that must be reined in lest they deliberately use their dominance to suppress conservative speech. That leaves them open to a nominee like Kanter, despite his roster of progressive support.
Social media companies such as Twitter and Facebook say their choices to ban accounts and limit the reach of certain content are attempts to help mitigate offline harms. Private companies have a fairly broad legal right to limit speech on their platforms as they see fit, but tension between platforms and conservative lawmakers grew significantly in 2020 as companies combatted political misinformation and false claims that President Donald Trump won the November election.
The result is nervous agreement between right and left tech critics on certain regulators and policies, such as the possible consensus that is emerging on Kanter. Hawley, for instance, recently said he was "very impressed" with Lina Khan, who Biden has nominated to the Federal Trade Commission — although the Missouri Republican said he hadn't made up his mind on voting for Khan, a progressive law professor known for her scholarship criticizing Amazon.
"Both sides have a view, and in some ways that view is complementary, that the tech platforms have far too much power," said Sarah Miller, executive director of the American Economic Liberties Project, one of the progressive groups pushing for Kanter. "How that manifests is different, but there is some alignment in various quarters that that power is deeply problematic."
The divisions
Still, Kanter fans on both sides said they were largely operating independently. Some of the conservatives also said they worried that Biden's team might lean toward Sallet if it knew that tech skeptics on the right preferred Kanter.
Among lawmakers, deep splits also remain on the problems with, and solutions for, tech — meaning any Republican interest in Kanter may remain essentially a private matter. Lee, the top Republican on the Senate's antitrust subcommittee, has balked at what he cast as Khan's ideological view of competition law, and his House counterpart, Rep. Ken Buck, recently voted against adopting the Democratic-led panel's blockbuster report on competition in big tech despite working extensively on it.
Both Buck and Lee have suggested that, while they think a handful of tech companies have gone too far, the federal government should still take a hands-off approach with most businesses. After all, the head of the antitrust division would not just be in charge of the existing case against Google. That person will also decide whether to launch investigations, seek to block mergers or file monopoly lawsuits against companies across the economy.
Left-leaning lawmakers and groups contend that other industries, such as pharmaceuticals, insurance, airlines and more are also dangerously concentrated, but conservatives as a group have shown little interest in a wholesale revamp of competition law outside the tech sector. Some business groups, such as the U.S. Chamber of Commerce, have also begun to push back, saying giant corporations and small firms alike live in fear of the cost of such an expansion in antitrust enforcement.
Bovard of the Conservative Partnership Institute, though, said she has talked to progressives about Kanter, and both sides should be more open to the alignment, at least on Google, Facebook and other tech companies.
"It's a sad commentary on where our political moment is," she said. "You just have to focus on the problem at hand and talk less about the politics of it."
