The Principal Deputy's Principles
A reflection and digestion of Principal Deputy Assistant Attorney General Doha Mekki's speech on antitrust and civil rights laws
Welcome back, everyone. Recently, my writing has taken a more personal and emotionally vulnerable turn in Grief 1 and Grief 2. While not the end of that work and my examination of grief and its personal and communal consequences, this post will be focused on the nerdy stuff again.
With Friends Like These…
I have been thinking and waxing a lot about anti-monopoly politics and The Left. As I learn more about the history of these politics in the US, especially through Matt Stoller’s Goliath, I keep feeling frustrated by their absence in mainstream coverage of American politics. Efforts are being made: Secretary of Commerce Gina Raimondo specifically called out monopolies in her DNC speech, John Stewart had FTC Chair Lina Khan on the Daily Show, and AOC and Bernie Sanders vowed to wage war if Kamala Harris ousted Lina Khan at the behest of mega-donors like billionaire Reid Hoffman. Obviously, the latter issue is no longer relevant since Kamala Harris lost. My issue is that these stories are often limited to the realms of nerds and political hobbyists. In particular, I don’t find that anti-monopoly politics have merged with the identity-focused elements of The Left/Democratic voters. Maybe I need to do my research, but I have yet to see the Human Rights Campaign (HRC) or NAACP talk about, let alone litigate, monopolistic practices that harm their constituents. In fact, when you look at their corporate sponsors you find companies that often use anti-competitive practices including Google, which has been found liable for monopolization in two separate cases.
Zephyr Teachout recently wrote a piece in the Guardian about how Big Tech is not The Left’s friend and how we need to reject them, especially as they embrace Trump. The same applies to most of those corporate sponsors. HRC’s list is particularly rough as it includes fossil fuel companies, healthcare conglomerates, and big financial firms. Liberation through Mastercard is surely what our ancestors wanted.
I promise I’m not picking on HRC; the Queers have done that a lot over the years. What I am interested in is the way that social and political rights have been divorced from economic rights and opportunity. If you can afford big galas and events by HRC and NAACP, hurray for you, but that’s a level of economic security that most LGBT and/or Black folks don’t actually have. We worry about Trump forming a multi-racial, working-class voter base but have we looked at our own bourgeoisie bubbles? There are people doing that work, and that’s where my attention has been. In particular, I’ve been interested in who is bringing this economic populism to Black spaces and audiences.
Insert Doha Mekki.
Paradigm Shifts
Doha Mekki is the Principal Deputy Assistant Attorney General of the Department of Justice Antitrust Division. She is the #2 of the Antitrust Division. Yes, the #2 at the government office that reigns in corporate power and sues entities as large as Google and Standard Oil is a Black Woman. That is important.
Because I am an antitrust nerd, I have been aware of Doha Mekki for a while and seen her in various media clips. Most of them have been broadly about antitrust and corporate power, and she always articulates these issues around questions of power and the law. She’s a true believer and, recently, she crystalized those beliefs in a speech for the Committee to Support the Antitrust Laws (COSAL). COSAL has been advocating for our antitrust laws for decades, especially on behalf of the plaintiff bar. Part of the political paradigm for antitrust laws has been the multi-decade isolation of antitrust from the public sphere and conversation to something for high-minded elites, often economists and lawyers. My experience of the lawyer-side of this has been my former employer, which was often facilitating mergers or defending corporate clients when sued by the government. Those folks often shuttle between the DOJ and private sector and eventually become judges that permit corporate concentration and consolidation. COSAL is not that. In fact, inviting a senior DOJ antitrust official to speak at their annual dinner is a bold political shift itself and represents the Biden Administration’s pivot from the “old ways” into something that takes corporate power seriously and is building relationships outside of elite spaces, including the one I used to work in.
I think it’s important to understand the dynamics shifting here. As I said before, antitrust has become a technocratic field for economists, lawyers, and big business only. We lay people are far too simple to understand the nuances of why Standard Oil should be allowed to vertically integrate. There are efficiencies to be had! No, the laws don’t mention efficiencies or these economic tests, but that’s ok because bigwig economists, paid for by [insert corporate giant], say they’re important. That reality is cracking as consolidating firms are extracting monopoly rents, crushing labor power, destroying small businesses, and making us all miserable and crazy. Earlier this year, I wrote about the Anti-Monopoly Summit I went to. What’s important is that the event wasn’t sponsored by the American Bar Association or Chamber of Commerce but instead by unions like the WGA and associations of independent small businesses like groceries, digital outlets, and pharmacies. Like COSAL, these are not the constituents that make up the modern influencers and thinkers in antitrust, but they are, more importantly, the folks directly affected by our lax enforcement of anti-monopoly laws. In the past, major antitrust figures like Wright Patman came out of these same forgotten constituencies. We’re witnessing a return to form and tradition.
There has been an effort to expand the audience because the Antitrust Bar’s club is insular and secure.
Elizabeth Warren included antitrust in her 2020 primary platform.
The FTC has been opening the comments on their rules to the public instead of just corporate parties with lobbying interests and power.
The DOJ Antitrust Division and FTC have brought labor-side complaints in their enforcement actions.
In Kroger-Albertsons, the FTC directly notes that the merger will harm their unionized workers and their ability to use the two firms against each other in labor actions.
The DOJ centered authors in their blocking of the Penguin Random House takeover of Simon & Schuster’s.
AOC held a big, livestreamed event with Chair Khan to talk about corporate power and how the public can stay engaged.
Adam Conover oriented a lot of the conversations about the Hollywood strikes around the consolidation and vertical integration of the Hollywood system.
Matt Stoller’s newsletter and podcast focus not just on the DOJ or FTC but also businesses that are harmed by monopolies, like baby formula producers, and candidates that ran on economic populism and anti-monopoly politics.
Morgan Harper of the American Economic Liberties Project (the same organization where Stoller works) has been doing particularly important work by bringing the message to independent media outlets like Roland Martin’s show. She’s directly trying to bring more People of Color into the audience, especially around issues like grocery prices and the Kroger-Albertsons case.
Ms. Mekki’s COSAL speech seeks to link the anti-monopoly movement back to broader American political history and civil rights history. In her speech, Ms. Mekki points to key figures from the founders to civil rights leaders and draws a lineage between them. She notes that “Jefferson listed a ‘restriction against monopolies’ among the rights that deserved to be enumerated in the Bill of Rights” but then also points to abolitionists like Fredrick Douglass who saw the system of chattel slavery as a system in which land was concentrated in the hands of a few and then used for industrial scale human exploitation. W.E.B. Du Bois goes further by describing Black Americans as conducting a “general strike” during the Civil War to collapse the Confederate economy. This paints a picture of Black workers fighting against an oligopolistic industry that generates wealth for a narrow band of mostly white owners who then use that wealth to control our politics. Am I describing Amazon or the plantation? McDonalds or Monticello? Even the 1619 Project series on Hulu draws these comparisons. Ms. Mekki points out that the drafters of our antitrust laws saw the same tyrannical dynamics playing out in industries from railroads to oil. These weren’t just race-neutral politicians; many of them wrote and/or defended anti-racist laws and were living in the shadow of the Civil War and Reconstruction.
The same people fighting to deconcentrate corporate power were also viewing that fight in the same lineage and tradition as fighting the Klan and abolishing chattel slavery. Ms. Mekki highlights that even Martin Luther King Jr. “[cited] the Sherman Act as an example of a law that, in some cases, limits business’ discretion to deny access.” Exclusive contracts and vertical self-dealing are anti-competitive, and that is, itself, a problem. Giant corporate landlords that dominate American cities are not then taking their commercial spaces and giving them to Black startups, at least not out of the goodness of their hearts. They may not be denying Black patrons service, but there are ways in which they ensure wealth and power remain out of reach for Black Americans. We need to look at those practices and take them seriously.
The central point of Ms. Mekki’s speech is the importance of economic democracy and power in general but also as a necessary buttress for social and political rights. Historically, in fascist regimes from Germany and Italy to modern Russia, the industrialists worked with the regime at the immediate expense of their workers and citizens’ social and political rights. In our own country, we see oligarchs in Big Tech cozy up to Donald Trump in hopes of favor from their would-be king. The CEOs of the same companies that donate to HRC are taking dinners with Trump and tweeting their support for him; Trans rights be damned. Doha Mekki’s speech is about rejecting concentrated power whether imperial monopolies, the oligopolistic slave economy, or Big Tech platforms. She’s making clear that economic rights and opportunity are the means by which we secure social and political rights. This view is contrasted, in my opinion, with corporate gestures for Black History Month or Pride Month. It’s the deconcentration of that power that assures that civil rights are protected. She is also making clear that our civil rights heroes understood this even in the 1800s and so did the drafters of our anti-monopoly laws. I am also sure that our civil rights heroes understood in whose hands that concentrated power tended to fall.
A Hammer for Our Sickles
The speech is not just about history and values. When armed with them, what happens next? For a few years now, Ezra Klein has been talking about a “Liberalism that Builds” and how the American Left can create the future it wants. Doha Mekki’s speech hums along a similar frequency. For too long under the Neoliberal paradigm, Liberalism in America has retreated to bastions of corporate protection and anti-state ideologies. Foundational to Neoliberalism has been an absolutist belief in the free market and the “marketification” of all realms of society. Need better healthcare? Let the private healthcare markets consolidate and do their thing. Education? Make public schools “compete” with charters and private schools. Want better airline service? Deregulate the industry and let the market sort it out. Everything becomes some sort of private or semi-public market, and everyone becomes a consumer. No need to vote on things or have public fights, the C-Suite will take care of that for you. So much of the broader Left has been enamored with these ideas for decades that we’ve adopted the Right’s anti-state obsession even as it has created unelected rulers within our economy and lives. We’ve retreated to corporate fiefdoms where our social and some of our political values are embraced but at the cost of living in a corporate fiefdom. This “Private Liberalism” has nothing to say about our economic rights or “democracy-of-opportunity” because those are public questions and require public answers.
Doha Mekki spends the opening of her speech talking up the accomplishments of the DOJ Antitrust Division because it is an example of what a public institution can do for the people. She is asking us to imagine how public servants should serve us. As Matt Stoller frequently says, “markets don’t grow on trees;” we make them. Airlines suck and guess who prevented another merger in that sector? The Antitrust Division. Groceries are expensive because our food system is consolidated and guess who prevented another grocery merger? The Federal Trade Commission. Rents are too damn high, and DC’s Attorney General is suing a price-fixer called RealPage for artificially inflating prices and vacancy rates. The Left, especially Progressives with concerns about corporate power, must imagine the government and markets we want to have. It isn’t enough to fight against government wrongdoing; we must also chart a path for what we want the state to affirmatively do. And, as Doha Mekki’s speech articulates, there’s a robust American history of combating economic concentration.
There is also a space for private actions. Ms. Mekki mentions examples like the Cook County Physicians’ Assoc. suing under the Sherman Act against regimes that locked out Black doctors from staff appointments. Again, she points to MLK Jr.’s recognition of antitrust suits as a means of breaking concentrated (white) power. However, those private actions were in an era of American apartheid. What is the point of democratizing our government and building multi-racial democracy, if we don’t have a vision of how such a state should serve its newly expanded constituency? What Justice do we want from the Department? In my write-up of the Anti-Monopoly Summit, I pointed to a moment that sparked idealism in me. AAG Jonathan Kanter opened his speech by saying “My name is Jonathan Kanter, and I represent the people of the United States.” That is the service and intention that we must aspire toward. These people serve us, and we need to decide what we’re ordering.
Black Politics Matter
This vision particularly applies to Black politics. Pessimism while Black is real. Optimism while Black is hard. However, we have done great works alone and in partnership. There have been Civil Rights Acts, plural. There is a 14th Amendment. The government of the United States of America has been bent to our whims before. My worry, these days, is that, like the broader Left, much of Black politics has retreated from the public sphere. Political protests have not become political programs. Magically corporate DEI programs and BLM endorsements did not liberate us. In fact, they’re being retreated from as we speak. That doesn’t make them entirely empty or unimportant, but those all represent private power at the whims of corporate entities. We know this, and our heroes of old knew this. It was not through kindness of individual plantation owners or the morality of Northern banks that the chattel system collapsed but, as Du Bois put it, a “general strike.” It was through “the exercise of this economic liberty” that the Confederacy was brought to a halt. Obviously, a general strike is a different tool than antitrust litigation, but these are all facets of economic democracy and People Power. Oligarchs and corporate firms will not liberate us. It is through the deconcentration of that power that we will secure our economic, social, and political rights. Ms. Mekki points to the federal antitrust enforcers as one path, along with private litigation from an organized citizenry. I would also point to business-to-business litigation, which can work in conjunction with private firms or organizations. That seems like something the NAACP should be doing, if not for their monopolistic sponsors. The irony is that by breaking up these consolidated companies, the NAACP would free itself up to donors and sponsors that are more politically aligned with their mission. In a better world, they could finance their organization exclusively through Black and allied businesses. Once again, the political and social rights are buttressed by economic power.
Another avenue for this political agenda is through states’ attorneys general. New York’s Letitia James is currently investigating the Capital One-Discover Merger, a nightmare, on behalf of her constituents. Briefs and testimony from Black business owners that will be affected by that merger would be lovely. My beloved Chocolate City has been on a roll lately with previous AG Karl Racine suing Amazon for anti-competitive practices, and current AG Brian Schwalb suing RealPage and multiple corporate landlords for a large-scale price-fixing conspiracy. Brian Schwalb is not Black but a plurality of his constituents are and he’s following in the traditions of the antitrust framers like Sen. Scott and Rep. Celler. These folks are models of allyship because they recognize that the social and political rights of Black folks, and thereby all Americans, can’t thrive under systems of economic domination. Any elected official hoping to receive Black votes, especially for AG, needs to articulate how they will make a more competitive and dynamic economy within which Black folks can thrive. Asking whether a candidate for attorney general will push resources toward white collar crime and enforcing competition law is important. Personally, a big part of my antagonism towards modern, American policing is that little energy is put towards corporate crime, like monopolization and predatory pricing, and the economic system that deprives people, particularly our most vulnerable, of economic rights and creates criminogenic conditions. Then when people commit crimes under those conditions, we send the police after them, and when that goes horribly, we protest in their name. That is the correct response to dehumanization and the disrespect of political and social rights, but what about the economic right to security and opportunity and to avoid criminogenic conditions in the first place? What about the criminals that sap economic liberty from the rest of us? Law enforcement for me but not for thee? Yes, I’m sure some would see irony in my leftist, ACAB self calling for more law enforcement, but I am calling for the policing of powerful actors in defense of our economic liberty and a recognition that by protecting our economic liberty we create conditions for human flourishing, not crime.
I’ve been ruminating on Black politics and anti-monopoly politics for a while now, and this speech by PDAAG Mekki was a perfect catalyst for finally writing some of it out. Through her citations, I’ve been able to find sources for further research and find a sense of historical anchoring. The antitrust world is often relegated to ivory towers, pun intended, but knowing that I/We have existed in that history further invigorates my present. It resonates further with my desire for Liberals and the Left to want to build something and do something. The vagaries of slogans are concretized only when we have the tools to make the cement. That is the vision of this speech, and I’m so grateful to see another Black person articulating that vision. I would encourage everyone to follow Doha Mekki’s career and her work because she is the kind of policymaker we need.
Recommendations
The Robinson-Patman Act is now back in the zeitgeist because the FTC has decided to enforce it for the first time since the 80s. The timing is optimal for me as I’m thinking about the connections between identity and anti-monopoly politics. In her piece in The Atlantic, Stacy Mitchell articulates the effects of grocery consolidation in America, specifically in the majority Black neighborhood of Deanwood in DC. Deanwood is a food desert because the non-enforcement of the RPA allowed for grocery consolidation, which often leaves Black, low-income, and/or rural communities with one or no grocery stores. I think this kind of reporting is important because it identifies not just phenomenon like food deserts but the policies that produce them. “Markets don’t grow on trees,” and grocery stores don’t just avoid Black people. We have tools to fix these problems.
The Organized Money podcast by Matt Stoller and David Dayen had Rohit Chopra, Dir. of the CFPB, on to talk about his vision as a policymaker, the way he has rejected impractical orthodoxies, and why Wall Street hates him. Chopra, another PoC policymaker, has been doing some amazing work both in policy and issue framing like coining the term “junk fees.”
I watched Pop Culture Jeopardy for the first time and loved it. I already have a team in mind to conquer this show. This isn’t policy wonk stuff, but doing all of the nerdy stuff with no joy and laughter is useless. Joyless people don’t change the world for the better.