For Corporate America, Appointments are an Endurance Sport
Newsletter 63: RDP’s new Personnel Map makes sure that you can keep up
Biden is just a handful of announcements shy of a full Cabinet. But, with over 4000 seats to fill before all is said and done, he’s just getting started. While few, if any, of the officials to come will ever be household names, many will wield tremendous power. Corporate America will be working hard to ensure that friendly faces get those seats and that that power is deployed in their favor. Traditionally, they have been alone in this attention to detail.
Not anymore. The Revolving Door Project’s brand new Personnel Map allows you to see exactly which jobs corporate America is interested in and to fight more effectively to keep those roles out of their hands. Check out the tool here!
2020 (and potentially 2021)
If the transition team’s belated, surreptitious addition of revolving door figures to agency review teams is any indication, the Personnel Map will be a critical asset in the fight to hold the next administration to higher ethical standards. When the Biden team first announced its agency review team membership, many were pleasantly surprised at how few from the rosters hailed from regulated industry (with a few, notableexceptions). It turns out, however, that after the transition team had basked in the resulting praise, it quietly began adding revolving door figures from Facebook, Google, Goldman Sachs, and McKinsey to its lists.
Aside from the obvious importance of these particular additions to these particular teams, the strategy itself is troubling, especially if the Biden team intends to replicate it at scale. As the Personnel Map makes clear, corporate America is intensely interested in hundreds of positions outside of the Cabinet. By default, announcements for these Assistant Secretaries, Commissioners, Directors, etc. will not get nearly as much attention as the names that are being floated these days. That fact might give the Biden team the dangerous impression that it can install influence-industry veterans without backlash.
Once upon a time, that might have been the case. But these days, public interest advocates are paying much closer attention. They know that building a federal government that works for the public interest, not corporate America, will mean paying attention to positions big and small all across the federal government. They know that effective climate policy can’t happen without many figures within the Treasury Department and that pushing back Big Tech will require attention to many within the Department of Labor. So while Wall Street Types might think it’s “inevitable” that members of their ranks will “sprinkl[e] the government,” we like to think that they’ll at least face a bit of a fight this time.
Anti-Monopoly
The Federal Trade Commission and 46 state attorneys general finally sued Facebook last week for maintaining its illegal social network monopoly through acquiring potential rivals, namely Facebook’s 2012 acquisition of Instagram and 2014 acquisition of WhatsApp. RDP’s Jeff Hauser and Demand Progress’ David Segal applauded the lawsuits, noting that “authorities never should have allowed these mergers, nor Facebook’s other anti-competitive conduct, but a revolving door between regulators and industry helped create a culture of non-enforcement that has lasted for decades.” Notably, the Cicilline Report detailed how the FTC first investigated, but ultimately rubber stamped, both acquisitions. FTC officials leading the case include Ian Conner, the Bureau of Competition head who formerly worked for BigLaw firm Kirkland & Ellis.
Meanwhile, the DOJ’s case against Google may soon be joined by a new state attorneys general case against the search giant, which would also focus on Google’s monopoly in the online search market. And following Bill Barr’s resignation, Jeff Rosen, the deputy attorney general, and longtime Kirkland & Ellis alum is slated to take over as acting AG. Though Rosen leads the Google search case, it's now uncertain whether the second Google antitrust case (focused on ad technology) will drop before Biden’s inauguration. Biden has still not announced who he will nominate as AG or to lead the antitrust division, and therefore who will take over the Google cases. However, at least one of his cabinet picks doesn’t bear good news for anti-monopolists: As our Miranda Litwak wrote last week, while the USDA can use its power to promote small family farms and de-concentrate the agricultural sector, Biden chose Tom Vilsack to lead the agency, who previously used his power to give subsidies to agriculture monopolies instead of attempting to rein them in.
And, though outside our normal scope of executive branch action, last week there was a positive development in the anti-monopoly movement: MMA fighters have been granted class action status in their antitrust lawsuit against employer and sport monopoly UFC for suppressing wages. The fighters are seeking structural remedies aimed at changing UFC’s core business model as well as potentially $5 billion in deprived wages. Though only one step in an already years-long lawsuit, the case will undoubtedly set precedent for employees fighting monopsony power, an important tool for the larger anti-monopoly and labor movements.
Governance
Last week, Joe Biden raised eyebrows when he conflated aggressive executive action with unconstitutional overreach. Of course, enforcing and interpreting the laws that are on the books -- like the Sherman Antitrust Act to break up Facebook, Google, and Amazon, or Dodd-Frank to green the financial system -- can hardly be called overreach (more like an obligation). And, more broadly, “unconstitutional” is not just a word for everything that you think is a bit too ambitious.
The reality is that the leader of the executive branch cannot govern without executive action. A comprehensive (but not overly long!) new piece from Ohio State law professor (and Administrative Law guru) Peter Shane in Washington Monthly makes that abundantly clear. From installing personnel to rolling back Trump rules to replacing them with something better, Biden will need to use executive power to respond to the pandemic and the economic and climate crises.
Independent Agencies
If you’re a regular newsletter reader, you’ve heard us bemoan McConnell’s role in keeping independent agencies out of partisan balance and, in many cases, incapacitated. In the last few weeks, however, McConnell has found a new sense of urgency when it comes to independent agency confirmations. “Why?” you might ask. By stocking these boards at the last moment, McConnell can rob Biden of the ability to control them for the foreseeable future (in some cases for the entirety of his first term). As our Eleanor Eagan outlined in a piece for the American Prospect last week, this will have dire consequences for everything from financial regulation to climate and telecommunications policy.
Luckily, Biden does have some tools to fight back, even if he can’t dislodge all of these last minute appointees. At many boards, Biden will have the power to demote the chair and choose a new one from among the members. Even when these chairs do not have a majority of co-partisans, they have significant power. Additionally, if Republicans retain control of the Senate and McConnell is unwilling to allow votes on Biden’s nominees, Biden can make use of recess appointments to circumvent the Majority Leader (a power Shane explained here). The importance of these agencies demands that Biden explore all legal options.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Mitch McConnell's Sudden Interest in Independent Agencies
The Vacancies Act: A Precedented Tool for Managing Unprecedented Obstruction
Opinion | Businesspeople aren’t bad — but rigging the system is
Mary Nichols Is The Wrong EPA Administrator For 2021
Right-Wing Media Is Now Suddenly Concerned About The Revolving Door
Case Against Facebook Heightens Need For Independent Executive Branch
Progressives Shouldn’t Be Afraid of Fighting Biden’s Nominees
Why Biden Might Not Need McConnell's Permission
The Nicole Sandler Show 12/7/20
Joe Biden Set To Tap Tom Vilsack As Agriculture Secretary Despite Black Leaders’ Concerns
'Big Step' for Antitrust as FTC and State AGs Sue Facebook as Illegal Monopoly
Wall Street Spent Big on Election 2020 Winners, From Biden to McConnell
Biden Cabinet Gets Mixed Grade So Far From Progressive Groups
John Cornyn accused of “partisan stunt” over “hypocrisy” on Biden administration picks
Top Biden Aide Helped Fund Betsy DeVos Education Groups
El Gobierno que diseña Biden incluye a miembros ligados a grandes empresas
The Left Has Valid Criticisms of Biden's Appointments But Centrists Won't Listen
Huge Challenge Awaits Jeffrey Zients, Biden’s Coronavirus Czar