Biden’s Trust-Busting Agenda Gets New Trustbusters
Newsletter 89: But Key Players Are Still Missing
Earlier this month, my colleagues Timi Iwayemi and Zena Wolf called on President Biden to move faster to nominate officials to fill numerous vacancies at the Department of Justice. And he listened (partially)!
Six months after it was first reported that he was under consideration for the role, Biden finally nominated Jonathan Kanter to be the Assistant Attorney General for Antitrust. Any other choice would have been shocking after Biden’s sweeping competition-focused executive order, but it is still a relief to have it confirmed and to be one step closer to permanent antitrust leadership at DOJ. Now, to ensure that the leaders it has named are able to fully make use of their roles, the administration must vigorously oppose Big Tech’s baseless, bad faith demands that antitrust officials recuse simply for having previously supported scrutiny of tech monopolies.
This week, Biden also finally made his first U.S. Attorney nominations. At least one of the eight names announced -- Rachael Rollins to be the U.S. Attorney for the District of Massachusetts -- is directly responsive to our shared call for Biden to nominate reform-minded officials to these roles. With 85 more spots to fill, Biden will have many more opportunities to demonstrate his commitment to criminal justice reform. Let’s hope he takes them -- and fast!
Of course, no matter how quickly Biden makes these nominations, it’s all but certain that the country will have to wait months before they clear confirmation. As the backlog of nominees builds up, and the Senate’s calendar just keeps looking busier, it’s time Democrats make some changes to accelerate both the confirmation and legislative processes. I offered some ideas in Talking Points Memo in April.
Governance
Even with these nominations, however, Biden still has consequential positions left to fill at DOJ. These include the Director of the Executive Office for Immigration Review, the Solicitor General, and the assistant attorneys general for Tax, the Office of Justice Programs, and (newly after Biden’s original nominee, Javier Guzman, withdrew) the Civil Division. The absence of permanent leadership in these roles is already hampering the Biden administration’s agenda in key areas. And, in some cases, acting officials charged with shepherding these DOJ components -- like acting Solicitor General Elizabeth Prelogar and Acting head of the Civil Division Brian Boynton -- are actively undermining the administration’s stated commitments. As their tenure at the Department stretches on, I am reminded of Elias Alsbergas’ warning from February that acting officials can govern for years and deserve careful scrutiny.
As we saw last week, the handful of Trump holdovers who remain should also be subject to closer scrutiny. Almost three years after Brett Kavanaugh was confirmed to the Supreme Court, we learned that the FBI’s investigation into the then-nominee following accusations of sexual assault was a sham. Director Chris Wray betrayed his duty to the public by bending to pressure from Trump’s White House and then hiding that fact for years. This is just the latest in a long list of reasons that Biden should fire Chris Wray.
It’s also a lesson in the dangers of refusing to look backwards. Biden’s policy of turning the other cheek to Chris Wray’s numerous offenses would have allowed this piece of critical information to remain hidden. It was only thanks to Senate Democrats’ persistence that this was uncovered and that there may be some consequences for the failure. What more might this administration be missing by only looking forward?
Personnel
Although the Assistant Attorney General for Antitrust was the most high-profile competition position left to fill, it was far from the only one still awaiting a nominee. Recent personnel announcements suggest that there’s still work to be done to get President Biden to view all of these as critical weapons in the anti-monopoly arsenal.
One such position is the Director of the United States Patent and Trademark Office. The next USPTO Director could implement changes to cut down on “patent thickets,” a practice whereby companies file hundreds of patent applications on a technology to scare off competitors. These thickets are critical to pharmaceutical companies’ market power. Advocates had been pushing the administration to name a reformer ready to undercut this power. Instead, Biden appears to have listened to Senator Chris Coons, an intense defender of extreme intellectual property rules and the pharmaceutical industry, and named industry IP lawyer Marcus Delgado to the position.
The Chair of the Federal Communications Commission (FCC) is another role that will be critical to tackling telecommunications monopolies. Biden still has not named someone to this position over six months after taking office. But he did find time to nominate Comcast lobbyist David Cohen to serve as the Ambassador to Canada. Max Moran has more on that pick in the American Prospect.
Climate Finance
With the deadline for the Financial Stability Oversight Council to submit its report on climate-related financial risks fast approaching, we were happy to see Biden finally submit a nominee for the position of Assistant Secretary for Financial Institutions. We were even more delighted to learn that he had selected Graham Steele for the role. As Max Moran stated immediately after the announcement, “Graham Steele might be the best possible choice for this position...Graham’s history fighting for the public against the predations of and systemic risks posed by Wall Street, and now the fossil fuel industry, speaks for itself.”
There’s still at least one more step that Biden needs to take to ensure that the FSOC is as well-positioned as possible to assess and respond to climate financial risk: remove the independent member with insurance expertise, Thomas Workman. As Max detailed on the blog last week, Workman has, as recently as 2019, said that climate change is a matter of debate. Biden should promptly replace him with someone who acknowledges the reality of climate change and can offer real expertise on its relationship to the insurance industry.
Independent Agencies
Despite having made his nominations to the National Labor Relations Board (NLRB) relatively late, it appears that both of Biden’s nominees will make it through to Senate confirmation ahead of the recess. That means that Democrat David Prouty will be able to assume his role as soon as Republican William Emmanuel is forced to step down at the end of the month. In other words, Democrats will assume a majority on the board at the earliest moment possible.
We had hoped the same would be true for the Federal Energy Regulatory Commission (FERC), where a majority was in reach as of the first of July. Unfortunately, almost a month later, Biden still has not nominated a Democrat for the opening. Check out Dorothy Slater’s running blog on those who are under consideration for the position.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
It's Big Business As Usual For Biden's Ambassadorship Picks
To Build Back Better, Biden Needs to Promptly Staff the Department of Justice
The Industry Agenda: Big Pharma
FERC Nominee Must Be Independent From Utilities Driving Climate Crisis And Hurting Consumers
Treasury Nominee Graham Steele Represents Exactly Who Should Staff The Executive Branch
With Rumored USPTO Pick, Biden Prioritized Patronage Over Patent Reform
Revolver Spotlight: Chris Coons
Want Postal Banking? Fire Louis DeJoy.
Labor Secretary's Longtime Colleague Racks Up Work Lobbying DOL
Wall Street enforcement to get tougher as SEC's new top cop gets to work
Skilled in Strategy (and Grudges), Top Biden Adviser to Depart White House
Big Tech seeks Lina Khan's recusal. What now?