On December 2, The Capitol Forum hosted a conference call with Jeff Hauser, founder and director of Revolving Door Project, to discuss their new “Corporate Crackdown” project. The full transcript, which has been modified slightly for accuracy, can be found below.
MR. TEDDY DOWNEY: Good morning, everyone. Thanks for joining The Capitol Forum’s conference call to discuss the Revolving Door Project’s new Corporate Crackdown Project. I’m Teddy Downey, Executive Editor here at The Capitol Forum. I’m joined today by Jeff Houser, Founder and Director of the Revolving Door Project.
A quick note before we get underway. For the first 20 minutes or so, I’ll interview Jeff and then we’ll move into a Q&A format where we will entertain questions from the audience. If you have questions, please email them to editorial@thecapitolforum.com. And Jeff, thanks so much for doing this today.
MR. JEFF HAUSER: My pleasure.
MR. TEDDY DOWNEY: So before we get to the Corporate Crackdown Project, I wanted to ask you if you could talk about your piece today about Google alleging Jonathan Kanter having a conflict of interest.
MR. JEFF HAUSER: Yeah. So it is interesting that Google, which has built its presence in Washington, D.C. on the theory that conflicts of interest are good and they want to hire as many previous enforcers of antitrust law and privacy law and the like as possible so that they could try to limit the enforcement of antitrust or privacy law, is now worried about conflict of interest in government, worried about the revolving door.
The irony is that under the letter of conflicts of interest law, Jonathan Kanter doesn’t have conflict. There are no cases in which Kanter would want to be actively involved in which he represented a party. Now, there are cases in which Jonathan Kanter was professionally interested before in which he represented victims or the people he believes or parties he believes to be victims of antitrust law had an interest in matters involving Google and Apple and the like. But that would be the case if he were an environmentalist, and he had been working as an environmental law firm lawyer and went to the Environment and Natural Resources Division of the DOJ or the Interior Department or the EPA. I don’t think anyone would bat an eyelash. No one batted an eyelash when experienced civil rights advocates joined the DOJ’s Civil Rights Division. I think most Democrats, and honestly a lot of Republicans, wouldn’t think it’s odd to have civil rights advocates enforcing civil rights laws.
And so from the Revolving Door Project perspective, I mean, I don’t think there was anything legally or ethically wrong with somebody being consistent, in and out of government, in pursuing strenuous enforcement of antitrust law as written, even if not as always judicially interpreted in recent decades. We don’t think there’s anything inconsistent. And we, in general, want to see people have professional careers in which they stay on the same side of the topic. We think that consistency is a virtue, and it’s much more likely to reflect what your true beliefs are. And we want public servants who are doing their best job, how they best interpret it, in government, that they’re not trying to seek to advance their career. They just have an actual vision of the good. I think most people in the antitrust world agree that Kanter has a vision for antitrust law, and he has been trying to make his professional career consistent with that.
So we don’t think there’s a legal issue. We don’t think that there is an ethical issue. We think that Google is trying to make Kanter a controversial figure which might reduce his influence over the course of antitrust theory and just the bar and the judiciary just make him a controversial figure in a way that undermines his threat to them in the long run.
MR. TEDDY DOWNEY: So is this more—they’re probably not going to get anywhere legally with this. Is it more of a PR stunt? They did the same thing with Lina, Amazon, Lina Khan at the FTC. They’re doing it again with Kanter. Is this more of a PR effort? It sounds like you’re saying that.
MR. JEFF HAUSER: I think it’s mostly a PR stunt effort, but it shouldn’t be viewed as de minimis as a result. Because I think the PR matters. I think if you make somebody controversial, it reduces their effectiveness in trying to reorient a potentially somewhat sluggish institution. If you can come in with an enormous headwind of positive press, it makes it a little bit easier to convert institutions like DOJ antitrust, like the Federal Trade Commission, which have been a bit sluggish in recent decades. And it influences how Kanter can or cannot win, or Khan can win internal fights. Can Kanter get the deputies that he seeks at DOJ antitrust? Can Lina Khan get the changes in staffing and the budget that she needs from Congress to make the FTC capable legally of taking on the many corporate interests that they are adverse to?
So I think it is consequential. The public relations do matter, which is why we are so ardent in defending Kanter and Khan against these spurious attacks.
MR. TEDDY DOWNEY: At least so far, we haven’t seen any flagging of White House support for Kanter and Khan. Certainly, Congressional support they do have, I think, a billion dollars in Build Back Better for the antitrust agency. So we haven’t seen that yet, but it’s more over the long-term that you’re talking about I imagine.
MR. JEFF HAUSER: Yeah, and it’s also judges, and judicial clerks and the legal academy and antitrust professionals. Reputation will matter. Because there is an effort, that you guys have been covering at The Capitol Forum for several years, to reverse the trajectory of antitrust law as interpreted by courts and the legal profession. And I think if you make Kanter or Khan more controversial, their effectiveness in accelerating that reversal is going to go down. And so that’s why they’re doing it. It’s a smart play by them, even if they don’t achieve their literal end goals in any meaningful way.
MR. TEDDY DOWNEY: You also have a recent memo titled “Quit Whining and Start Presidenting”. And I think that frames the Corporate Crackdown Project pretty well. Can you tell us a little bit about that?
MR. JEFF HAUSER: Right? Well, we think that the main job of the executive is to run the executive branch and that is a big, big job that Joe Biden has and any president has basically. We have more than 230 years of law on the books. And at no time, if you’re going to be a president in the 20th or 21st century, are you going to preside over the drafting of more new laws than laws that already exist. And even if an old law exists, maybe it’s not as sexy as presiding over the passage of a new law, but how it is implemented is enormously consequential.
So obviously, your audience is familiar with antitrust law. The Sherman Antitrust Act was written in the 19th century, but it very much is still on the books in the 21st century. The Fair Housing Act, the Civil Rights Act, the Clean Air Act, the Clean Water Act, Dodd-Frank, the Telecom Act. These things are still good law, and how the executive branch interprets them has enormous consequences. And that is something that the executive branch can take the initiative on. That has political and policy implications.
Politically, the fact that you can take the initiative allows you as the president, to dominate the conversation. If you are aggressively cracking heads and going after companies that pollute the water or companies that abuse their workers or if you pursue March-In rates on pharmaceuticals or you reinvigorate the Federal Maritime Commission in conjunction with DOJ Antitrust, go after shipping policies, you can be relevant on some of the most pressing issues in the country. Some that are already being covered like the supply chain. Others which would be covered if you acted on them. Because corporations wouldn’t take such a crackdown lying back. They would fight back hard. And then you would have clash. You would have day-to-day news between the executive branch and corporations. And the executive branch has the higher ground. So they get to choose. They are implementing long-standing popular laws that would have been amended if people didn’t think they were good law. So these laws essentially have implicit bipartisan consensus behind them
and you get to implement them. And so the polling shows implementing long-standing law is extremely popular.
And as a matter of policy, the whole point of passing laws is not to have a signing ceremony. It’s for them to matter. And so the way you interpret laws is how you give policy impact to past policy successes. So it’s not a diversion from trying to pass Build Back Better or to address other substantive issues for which new legislation is needed in 2022. It’s complementary. It is showing that government can solve problems and it can solve problems in which the problems are being created by rogue corporations—and I’m not saying all corporations need to be cracked down upon. It’s corporations that break longstanding laws and regulations. And the reason why those longstanding laws and regulations exist still is that they’re popular and it’s a real political no brainer. And it is something the president can do rather than complain about, well, ‘if it wasn’t for the Delta variant and people having unreasonable expectations about Afghanistan, that’s why Terry McAuliffe lost in Virginia, and I’m just a victim of circumstances. It’s not my fault that variants are popping up.’ You can actually do stuff. And we want Biden to focus on the things that you can control, rather than making excuses and lowering expectations for 2022 and the rest of his presidency.
MR. TEDDY DOWNEY: You touched on this a little bit. Are there any industries or companies that stand out to you that you think the president would get the most political bang for his buck in terms of law enforcement? You mentioned tackling the topics that are most pressing for the economy right now? Are there any that really stand out?
MR. JEFF HAUSER: I mean, I think pharmaceuticals in general is a target that makes a lot of sense. There is a lot of political appetite for reducing drug prices. There is also a lot of pushback at Biden changing the law as enforced in this country via legislation. The Build Back Better pharmaceutical efforts have essentially run aground and are not going to be that meaningful. There may be some progress, but it’s not going to be that much progress. But through March-In and 1498 rights, there’s a lot that President Biden can do to lower the price of drugs, which has an obvious political constituency. It’s something that Democrats have been promising they would do for decades. He can make it happen even if Scott Peters and Bob Menendez are not helpful on the issue. That is something he can do. He should do it.
But it also then connects to vaccines. Between the Defense Production Act and other contractual rights that the government may or may not have, I mean, they’re hiding contracts with Moderna that in particular were signed under Donald Trump. We need vaccine access expanded globally at a massive scale if we are going to take on Omicron or any future variants. The argument from big pharma companies that, well, their production capacity is ramping up and they’re going to start getting shots to the developing world in 2022 and don’t worry about it.
Look, if they all of a sudden need to produce booster shots to take on specific new variants, we know as a matter of realpolitik that they’re probably going to be giving those shots out first in the developed world where they can make more money for it and where governments like the U.S. are probably going to push them to do so. Which means we’re going to be continuing to push it back in time when the developing world has complete vaccine access. And the longer the world goes without vaccine access, the more we’re going to continue to face new variants that develop among the unvaccinated. And I think everyone freaked out enough about Omicron right now to be worried about that. And so if the Biden Administration thinks they’re going to ultimately be judged by how well they take on the pandemic, it’s in their interest to do this, even if Moderna would be upset. And so our general rule of thumb is if it makes Moderna and the pharmaceutical industry upset, it’s probably both good politics and good policy.
MR. TEDDY DOWNEY: And you mentioned in your memo that this creates a lot of political opportunity. The president’s poll numbers are going down. So if you can tell us a little bit about more about why this would be politically successful or why you’re confident in its political appeal.
MR. JEFF HAUSER: I think there are two particularly big reasons. One is our ally, Data for Progress, did polling on this question that we worked on them with. And their polling shows—which makes sense—that people of all political persuasions think that the legal system is rigged in favor of the rich and powerful. When you take that on its head and you actually go against the rich and powerful, you are going to reap political benefits. You are picking villains who are violating laws that, regardless of past lobbying efforts by the Chamber of Commerce or whomever, still are on the books for good reason.
So you are getting to pick popular issues and you are taking on the powerful. And if you are the president and you’re Joe Biden and you are doing that, you are seeming active. Like there is definitely a latent concern in polling—and sometimes not latent—about Joe Biden’s age and energy level. And part of that, I think, is that he has been a very congressionally focused president. And the reality is the president’s powers on the Hill are limited, and they may often be the right legislative task to stay back. I’m not an expert on the legislative process. I’ve done some work on it. But I’m not second guessing that. But it definitely makes the president seem passive. He is the victim of circumstances. People are paying more attention to Joe Manchin and Kyrsten Sinema than Joe Biden. And Biden is defensive and constantly like receding in this process.
Running the executive branch is the way that he can appear energetic, by being energetic, by taking control of the narrative. And that would help him respond to these concerns in the polling that he is not up for the job, that he lacks the energy to do the job well, that he might be too old. I think doing stuff is a good response to those concerns.
MR. TEDDY DOWNEY: I think this is a great way to transition into the Corporate Crackdown Project. I’d like to get your take on the purpose of the project overall and talk about this first memo, which is focused on labor and has some polling in it as well.
MR. JEFF HAUSER: Yeah. So overall, what we are hoping to do—and we are going to be pursuing a bunch of issues over the course of the next 12 months in this regard, working with what we hope to be an ever growing number of allies—is to demonstrate to people the power that a president has with respect to long-standing law, law that is unquestionably on the books and just makes people think about the fact that a president can be judged by something other than what legislation they sign.
So we are trying to move people beyond that. Because we think that if progressives pay more attention to the executive branch, they will hold the executive branch to higher standards. We think corporate America is extremely aware of these powers within the executive branch. But just being aware doesn’t mean they want to draw attention to them. Quite the contrary. They want people to think everything is going fine. If anything, they want to complain about excessive regulation and enforcement of the status quo to try to anchor people’s expectations, that this is about all that can be done. And maybe, if anything, we need to rein it back.
And so what we did, in using the Labor Department as an initial example, is show that there are a lot of different ways in which the executive branch can help union. There are ways in which the executive branch can help workers who are being misclassified, workers who are not actually getting the wages that they are owed, the issue of wage theft. And also workplace safety. These are issues where the polling is clear that the position of enforcing these laws is broadly popular across Democrats, Independents and often Republicans. And there is an ability to increase enforcement.
Now, on labor, there is definitely a rhetorical commitment, and at times a substantive commitment, by the Biden Administration to doing this. But I think they need a push to do even more, to think even more grandly. Because being a little bit more energetic than Hilda Solis and Tom Perez should not be the bar for being a good Labor Department under Marty Walsh and Joe Biden. We need to see more.
And so we are going to be continuing to roll out efforts looking at different parts of the executive branch throughout 2020, trying to increase the expectations that Democrats and Progressives have for the Biden administration and trying to nudge them into doing something that, you know, we think of this as like very tasty vegetables. It’s good policy that’s good for you. But it also tastes good and the public will like it. So this is your greens at a good Southern restaurant. That’s what we think we are suggesting to the Biden team.
MR. TEDDY DOWNEY: And you focus a lot on worker misclassification. And the big decision there seems to be about what to do about Uber and Lyft. You don’t get into that specifically. But is that one of the big asks is they’re misclassified as workers are. Do you want the NLRB and the DOL broadly to play a role in defining that and taking on those companies?
MR. JEFF HAUSER: For sure. And there’s a Transportation Department role to play here. We are working on additional stuff that actually the department—one of the next projects we’re working on, it’s not going to be a full on scorecard yet in the next few weeks—but what can the Department of Transportation do in response to the supply chain crisis?
So we’re seeing these issues in trucking as well as with Uber and Lyft. We’re also just worried about Uber’s and Lyft’s general strategy of hiring a lot of Democrats. We are aware of Tony West’s stint at Uber. And he is the brother-in-law of Kamala Harris. And that is something we are monitoring closely. Pete Buttigieg, in theory, supported Uber workers during his presidential campaign. We are going to monitor how he implements that. And we are going to monitor how the Department of Labor, in conjunction with the Department of Justice, take on Uber and Lyft. And we could definitely imagine Merrick Garland at the Justice Department trying to rein instincts of some of the better appointees at the Labor Department on issues of misclassification, Uber and Lyft. And we hope to put a microscope on the key officials so that no one can do so without public accountability.
MR. TEDDY DOWNEY: And that brings up a couple of really interesting points. You mentioned Pete Buttigieg. You mentioned Merrick Garland. They do seem like two characters, decision makers, who are ideologically and politically kind of firmly in the neo-liberal camp. And you’ve got this other anti-Monopoly camp that I think probably identifies much more with what you’re saying, the Khan, the Kanter, the Wu wing of the Biden Administration. Clearly, the Biden Administration has backed up the Wu, Khan, Kanter wing with their big Executive Order. But does that really mean that the White House is behind them when they get in a dispute with a Garland or a Buttigieg over policy? I’m kind of interested in how you think this plays out when those two ideologies clash.
MR. JEFF HAUSER: Right. I mean, I think there are going to—one of the big interesting questions is who in the White House has capacity at any given time to focus on any given issue? One of our overall critiques, putting aside even the ideology of given appointees, is that we think the White House in general should not micromanage, that they should make strong appointments and then let the appointees have significant independence. Because it’s just really hard to run the government. The scope of responsibilities for a modern government running a country of more than 330 million people are just vast. And so that’s why we take appointments so seriously.
And we think it’s unclear in general that they’ll be the same answer on every question. Because it could just depend on who at the White House has bandwidth to handle something at any given time. And is it the ally of a Garland? Or is it an ally of a Khan or a Kanter? And Marty Walsh, kind of a swing ideological figure in this construct. I think that some of it depends on where Mike Donilon and the political team at the White House thinks on issues. We’ve been encouraged by some of the beginnings of signs that the White House views inflation and supply chain issues as an opportunity to become populist. We think that there is a real opportunity for the executive branch to take on inflation and excessive prices across the economy. We saw that in the memos on oil and gas, but we’d like to see more on pharma, as we mentioned, and a lot more on shipping and transportation issues.
And I think the more the White House grasps that the best Democratic Party argument on inflation is a populist one attacking—the profit levels in the shipping industry are astonishing. Shipping, I believe, in 2021 is on course to make more profits in 2021 than in the previous decade combined. So their costs are not going up anywhere near proportional to the prices that they’re charging. That has to reflect an excess of market power and probably some degree of collusion. And yet, in shipping there’s a limited amount of antitrust immunity. But there is definitely room for enforcement.
I think Mike Donilon can be made to understand that as the polling czar within the White House. But will that mean that they get Chuck Schumer to move the Federal Maritime Commission nominees who are dormant? That’s another issue where the supply chain of nominations to getting confirmed in the Senate is moving extremely sluggishly. And then can they get Pete Buttigieg to think about his job as something more than doling out money from the president’s infrastructure bill? That is not the principal responsibility of the transportation secretary. The principal responsibility of the transportation secretary is to run the Department of Transportation, which he is not meaningfully doing right now.
So, I mean, I know that’s a little bit evasive, but I think it depends. I think the balance of power between the Tim Wus of the world and the Merrick Garlands and the Pete Buttigiegs is going to probably be in the political wing, especially Mike Donilon.
MR. TEDDY DOWNEY: If a Pete Buttigieg ends up—because one of the interesting dilemmas here is if you want populist action, basically the only places you can really go are the Wu, Khan, Kanter and maybe the FTC. When you go to these other agencies, you’re going to run into this resistance. Is there a certain amount of time if Pete Buttigieg doesn’t do anything to address the supply chain crisis, sort of like clearly at odds with what the White House is looking for? I mean, the White House, a couple of days ago, did come out and blame shipping companies for inflation
and supply chain issues and price gouging and things like that in an email to reporters. And clearly, what’s the consequences? How long can Pete Buttigieg really get away with just not doing anything?
MR. JEFF HAUSER: I mean, Pete Buttigieg cares more about his clips than any other figure in the cabinet. And I think while I’m not personally a huge fan of Buttigieg, I think you can sense he can respond to incentives. And so what we see as our role at Revolving Door Project is to elevate attention to the fact that Pete Buttigieg, as Secretary of Transportation, at a time of unprecedented transportation problems, should be asked questions about transportation problems rather than about his relationship with Amy Klobuchar and whether or not he has repaired it or not. Or is he running for president in 2024? And the more we can succeed in shifting media and Democrats on the Hill to focus on those real powers within the Department of Transportation, I think it’s possible a figure like Buttigieg will see his commitment as less to neoliberalism and more to self-advancement and respond accordingly.
And so our view is that we shouldn’t take some of these figures giving us permanent hindrances, but it’s our job to create, help create, an ecosystem in which they are more effective.
MR. TEDDY DOWNEY: And obviously, our audience really cares a lot about antitrust. How do you see antitrust fitting into the whole theme about cracking down on corporate abuses, particularly anti-competitive conduct and things like that?
MR. JEFF HAUSER: I mean, enormously. I mean, antitrust is all about incumbent corporations structuring markets such that they don’t have to compete on price or quality in the way that they should. And I think that there is enormous dissatisfaction in the economy with things like the transportation industry from like airlines on down. And there is huge worries about inflation. And that is an obvious political environment in which arguing for stringent antitrust enforcement is important.
Obviously, or maybe not obviously, but I’m ardently pro-abortion rights. But I think we’re going to be in an environment, in the next six to nine months, we’re going to see a lot more Democrats running against the judiciary based off the OAs from yesterday’s Supreme Court argument.
And I think even if antitrust enforcement actions lose in courts because of the way the judiciary has been stacked by the Republicans and the success of the Bork style conservative legal movement over decades, even if there are losses, I don’t think that that undermines the extent to which vigorous antitrust and placing the administration on the side of consumers is going to be good politics for the party and give them a rationale in 2022.
Like if I’m Joe Biden, if I’m to take on corporate price gouging, I need you to elect people who will help me change these outcomes, help me take on these industries that are unpopular. And basically, it gives Biden, in any given area of the country and the Democratic Party, the opportunity to weigh in on the most vocally relevant, unpopular monopolies. So if that’s the big AG, like if you can go against Monsanto in Iowa, go for it.
Like you can tailor your argument to different voters to find the local monopolies or oligopolies that are unpopular, take some action and then say that the choice is between the Democratic Party that is going to take on this industry and a Republican Party that is in bed with it. I think antitrust gives the Democrat Party a political reason for being in an era of relatively high inflation and great populist dissatisfaction.
MR. TEDDY DOWNEY: So is the way to think about it, if the White House, the way they might think about getting onboard with populist action, is it sort of one of these industries that has a huge pocketbook issue or a huge local issue that resonates? Or is it something that’s really driving what’s going on in the economy right this minute? Are those all of the factors that we should think about whether or not they’re going to end up throwing their weight behind a particular antimonopoly attack? Or how should we think about that?
MR. JEFF HAUSER: I think a modern communications environment demands a both/and approach, and then an all of the above approach. I think that an era of fractured media and advance of social media means that narrowcasting has more chance to succeed than normal. That there are issues, particularly relevant to rural America, that may be unlikely to be the top issue in the national coverage. So like in an era where the only thing that mattered were three network news shows, you were probably not going to get that topic to be on the network news. But you should, if you have a competent communication structure, be able to elevate antitrust action relevant to rural America through discrete channels focused on rural America itself. You should be able to focus on issues that are of particular relevance to young people, old people. There are lots of different ways to slice demographics and figure out what antitrust monopoly issues matter most and to try to make sure that people are aware if and when you’re fighting for them.
But that then allows the president in the bigger picture, the set pieces where you’re aiming for the largest audience at one-time, to respond to what the top issues of the moment are, which I think clearly is inflation and the supply chain issues. So my recommendation to them would be to pursue both tracks at once, both the more micro-targeted, narrow perspectives on issues that are very salient to a relatively small slice of the electorate, but also using the president to take on the largest, most generally pressing issues.
MR. TEDDY DOWNEY: But then sort of a more general strategic question, which is the president has focused a lot on legislation. But once Build Back Better is resolved, there will not be really that many big legislative fights remaining before the midterms, and really potentially for the rest of his presidency, if the Democrats lose, as sort of is kind of expected in the midterms, control of Congress. Are we very likely to see Biden shift to this bigger focus on doing more administrative action once Build Back Better is in the rearview mirror?
MR. JEFF HAUSER: I think it’s likely he will shift more to it. I think it’s possible that he has delayed some action because his legislative margins are so narrow that if something is broadly popular within the Democratic caucus but has a single senator who doesn’t agree, like you don’t want to antagonize that senator when you need their vote for Build Back Better. But your fear of antagonism goes down once the legislative agenda is more in the rearview mirror.
I also think that broadly, and this is something the Revolving Door Project is hopefully contributing to, but we’re certainly not the only force in this direction. I think there is an understanding in the world of Democratic policymakers that Obama was a little late to moving to executive action, but it kind of paid off when he did do so. And I think that helps create an environment in which the Revolving Door Project and our allies can be helpful in spurring the administration to greater levels of activity. I think there’s a general understanding this is our opportunity to leave a legacy, to make the presidency continue to matter. And that reluctance and fear avoidance is a bad strategy.
But that said, Garland, in particular, is a significant obstacle to an energetic executive branch. And so I think a lot of the questions in 2022 are going to be about Merrick Garland and can the administration take control of the Department of Justice and alter the biases that Garland and Lisa Monaco and Elizabeth Prelogar and others bring to their job?
MR. TEDDY DOWNEY: Can you talk a little bit more about that? Because I know you’ve written a lot about that Merrick Garland, but our audience might not realize that he meaningfully offsets sort of this more aggressive wing in the Biden Administration.
MR. JEFF HAUSER: So when the U.S. government is sued by a corporation saying this regulation or this regulatory enforcement is bad, the U.S. government is always by law represented by the Justice Department. I mean, there are some very narrow exceptions in which some independent agencies have independent legal authority. But it is so broadly true.
So on issues from the eviction moratorium to the Fifth Circuit telling the Interior Department that they can’t stop offshore drilling, these issues, the DOJ controls the litigation and they control the litigation stance of the government. So all litigation is controlled by DOJ. So it’s not just that DOJ matters on issues where it’s relatively clear that they are in charge of at least some of it, like antitrust
or civil rights. They matter on everything else. Like contracting by the Defense Department. If it’s a challenged, there are going to be DOJ lawyers in court. And also, the DOJ will be asked their opinion on complex issues of administrative law. The Office of Legal Counsel, the Office of Legal Policy. They get to weigh in on what the policies are.
So whether an executive branch department is contemplating an action or has already undertaken an action, the DOJ will help determine what happens. So like on the eviction moratorium, where there was a lapsing in an eviction moratorium in early August, when the first eviction moratorium lapsed. What happened is lawyers In the White House Counsel presumably—like we strongly believe but cannot prove—the Justice Department said, look. Brett Kavanaugh has signaled that he is skeptical of another eviction moratorium. So we shouldn’t go forward. And then nothing happens.
But then Corey Bush and others on the Hill led like sleep-ins on the steps of the Capitol and shamed the administration. And then eventually, the lawyers were right. And several weeks later, the Supreme Court said, no, you can’t do the second eviction moratorium. But that got like 23 more days of housing for some set of people who were on the risk of experiencing homelessness. So from our vantage point, it’s a lot better to have some fewer days of people experiencing homelessness. From establishment water types, oh my God. They lost a case at the Supreme Court. That’s a catastrophe. And that approach is the case across the board.
The other big issue, one of the quickest ways to alter policy in the executive branch, is for the executive branch to settle lawsuits. There are tons of cases that were brought against the government during the Trump years where the EPA or the Education Department or any number of other parts of the government were sued for failing to live up to their obligations under the Clean Air Act or to student loan debt holders. And the government could switch positions now. The government could say, yep, it turns out that Joe Biden’s Justice Department doesn’t agree with Donald Trump’s Justice Department, and we’re going to settle this case. And that would be a way to reverse policy very quickly, much faster than writing new regulations under the Administrative Procedure Act.
Merrick Garland’s DOJ is loath to do that. And so that means you have this weird situation in which the Justice Department is constantly defending the Trump administration’s regulatory and enforcement decisions. We think that’s outrageous.
MR. TEDDY DOWNEY: And why are they doing this? Like what’s his ideological political calculus like? Why does he keep coming up, the people he’s picking, his worldview? What is going on here where things you repeatedly point out are just kind of basic rules of law or basic judgment calls that any Democrat would do, they’re not making these decisions?
MR. JEFF HAUSER: I think there are a series of Democrats who believe that if they pretend everything was normal under the Trump years, politics will return to normal. It’s the ostrich school of the Democratic Party. And I think Merrick Garland is the single most influential figure in it, but he’s hardly alone. He thinks that the real fear in our country is that we become the type of country that prosecutes a former president. Rather than my view, which is that the biggest fear is that you have a president who warrants prosecution. He thinks that if you pretend like the Justice Department is a continuing institution across presidencies and it always stands for the rule of law, regardless of who is attorney general, that will be self-fulfilling. And that the next attorney general under Republicans will pay it back. And by continuing, like the DOJ Civil Rights Division record that is being built out under Kristen Clarke right now.
I think that is insane. I think that is entirely unmoored from reality. I think that if Trump or DeSantis or Hawley is the next president, the next DOJ Civil Rights Division will be a catastrophe, regardless of what Merrick Garland does. There is no reciprocity in returning under Democrats to the norm of a myth, that the Department of Justice is always fighting for the rule of law. And so that sustaining legal positions taken under foreign sessions will return the DOJ to a more stable place going forward.
I don’t think it is within the power of the Biden Administration to make American politics normal again. They can’t do it. And so instead, they should implement their best vision of the law. That isn’t to say they should be lawless or just impose my ideology on the world. But if they don’t think that the Trump administration’s interpretation of environmental law is accurate—and, I mean, I can’t imagine that they do, even the people with whom I really disagree—then don’t defend the Trump administration’s Interior Department related decision. But I think they can make the world better again that way.
MR. TEDDY DOWNEY: And you’ve actually made the point that the ostrich school of law enforcement undermined the rule of law. Can you explain that? Why they think that?
MR. JEFF HAUSER: Yeah. I mean, because saying that, I mean, first of all, the norm in American law right now is that corporations and corporate elites and the highest ranking political figures are not prosecuted. So that norm, by definition, means that the law is only for the weak. I mean, that’s actually even the theme of “Succession” this season. And I think the reason why it’s why the show is about this. Because even well-educated viewers who pay for HBO understand this to be true.
But what our polling with Data for Progress shows it is broadly understood in this country that the elites do not face accountability for when they violate the law. And that’s particularly salient to people at a time when there is supposed to be a reckoning with the criminal justice system and how drug offenders and the like are facing complete excess of accountability for actions which may not
even be that problematic. So I think if you want to inspire confidence in the rule of law, you need to convey that all of us are equal under the law, which would mean that even powerful people when they break the law will be held accountable.
MR. TEDDY DOWNEY: And I guess the last question here. We talked a little bit about. Ag, health care, shipping. We didn’t talk about Big Tech at all. You’ve done a lot of work on, I mean, we talked a little bit about the conflict of interest stuff at the beginning. You’ve done a lot of work on the revolving door, the connections between you mentioned Uber, Google and other big tech companies and Democrats. What’s your outlook? Are you optimistic that the administration will really take on Big Tech? Or is the revolving door with the Democratic Party too problematic, kind of too many, too intertwined, for the Biden Administration to actually take on Big Tech? Not just at DOJ and FTC, but other places as well.
MR. JEFF HAUSER: I think they are likely to do at least a fair amount, and probably neither as much as critics like on Big Tech like myself would like to see, but much more than was done under, say, Barack Obama. So I’m guessing they’re probably going to get a B-minus, C. But they might do better. I think what I’d like to see is an FTC that is more skeptical of telecom generally.
I think there are interesting ideas about what sort of reforms could possibly happen at the FTC on Section 230. A former colleague of mine has written about how complicated algorithmic editing could be seen as shifting a company from being a platform to being a normal publication, which would alter Section 230 as implemented without the need for new legislation. I think that is an extremely interesting idea that is very much worth the FTC taking on.
I do think that there is some hope for legislation related to Big Tech. Although, it’s going to be impossibly complicated. Because while there is bipartisan anger at Big Tech, it is a very complex mix of critiques. And putting them together in one bill is an issue I’m sure many people on this call are following more closely than I am. I think there’s going to be interest in doing so.
But a lot of these big issues are still going to be at DOJ and the FTC and whether or not the resources are given, and whether or not losing some cases, whether or not that freaks out the powers that be or not. Because I imagine that there are going to be meritorious, from my view of the law, cases brought under an aggressive Khan led FTC or Kanter led DOJ, where the current judiciary comes to a negative decision. I don’t think that’s the end of the world. I think if you believe in a case as the U.S. government and you bring it, you have to respect the outcome in the court. But that doesn’t mean you have to be deferential, that you were wrong, just because a judge disagrees. Especially after the judiciary has been as stacked as it has been by McConnell. So it’ll be interesting to see whether or not Garland and Biden are okay with seeing some judicial losses on the board.
MR. TEDDY DOWNEY: You mentioned the FCC. I’d like to stay on that a bit because I think, well, I guess the consensus is that Rosenworcel is more in the Buttigieg mold than the Wu, Khan, Kanter mold. Are you really optimistic that there’s going to be anti-monopoly or populist action at the FCC outside of just doing net neutrality again? Which really in the grand scheme of things is not a very influential policy?
MR. JEFF HAUSER: I think a lot will depend on whether or not Gigi Sohn gets confirmed. My understanding of the dynamics of Jessica Rosenworcel is that she is somewhat better than your intro suggested, and I definitely think she would be responsive to being portrayed that way. And so I think if Sohn were added into the mix with more active scrutiny at the FCC then probably existed in the recent past, I think they can be pushed to be relatively populist.
But I think if Gigi Sohn is defeated, that would be problematic, I think Progressives have to be very concerned about things like the Omarova and Sohn nominations. It’s kind of imperative that as many people as possible get confirmed. Even while understanding that if everyone gets confirmed, that maybe we haven’t tried hard enough and there are some reach nominees. But like Sohn should not constitute that. Like she is a populist. She is progressive. But she is hardly that much. I mean, the same with Omarova who worked in the George W. Bush administration at Treasury. But I think these are not nearly as lefty as they’re being portrayed, for better or for worse. But I think a lot will depend on the FCC whether or not Sohn gets confirmed and whether or not Progressive scrutiny is sustained.
MR. TEDDY DOWNEY: One thing that Rosenworcel took off the table recently was price controls for telecom companies. Or she seemed to take that off the table. We talked about law enforcement. What about regulation that meaningfully attempts to curb monopoly power? You’ve got this FTC rulemaking coming up on [inaudible] at the CFPB. You’ve got potentially a lot of rules coming out of the Federal, if they ever hire someone for that regulatory position. Lots of rulemaking to be implemented across a lot of these agencies that you talk about in your paper when it comes to labor. What would you like to see? And are you optimistic? And do you have any polling on rulemaking and regulation of kind of law enforcement specifically?
MR. JEFF HAUSER: Just to answer your last question first, we’ve not polled it yet. And we think regulation is extremely important. We think it’s almost less polling relevant in the sense that regulation moves too slowly. At some point in time, we probably need a reform of the Administrative Procedure Act to make the regulatory structure more responsive to needs. Because right now, it’s a sporadic process in which corporate influence is accentuated because they have paid professionals by the dozens who can weigh in a way that public interest groups are just entirely outmatched.
So I think regulations are really important. But the upside of regulation, it tends to happen much more slowly. And so we have initially been focusing on enforcement because that is the angle by which Biden has more opportunity to start taking control of the narrative and delivering results in 2022. That doesn’t mean we don’t want to see parallel regulatory actions undertaken with maximum expedition to make things happen. It’s just that we think that even if they are as expeditious as possible, it’s going to take quite a while. So we are hoping—we would like to see a world in which there is political synergy between enforcement efforts and regulation efforts. But the more you’re identifying problematic behavior that under current regs and under current law, that helps build political momentum for new regs and potentially eventually new law as well.
So I think we see synergy there. We see it as important. From the Agriculture Department to HHS and its various components that deal with pharma, to commerce, to the FTC, there are tons of areas for taking on inflation and price gouging and anti-monopoly regulation. But I am just a little skeptical of how much can be achieved in the near term to alter the current political environment.
MR. TEDDY DOWNEY: And I just wanted to stay on this. How much do you ascribe to this view that sort of seems to be what the president’s Executive Order gets at, which is you sort of kind of attack the issues across all the different agencies. And you sort of use the broad authority of the government among a lot of different agencies to attack a specific corporation.
So, for example, let’s say, Uber in your paper, you talk about the Department of Labor, USTR and then you mention transportation. So do you think that it requires an across the board, across the government effort to be successful with this kind of crackdown?
MR. JEFF HAUSER: For sure. I think that it is needed, both because jurisdiction on lots of issues is split across parts of the government, but also because historically expectations for the government to act are lowest when responsibility is split in different ways. It’s easier historically to pay attention to issues that are solely within a given cabinet secretary’s auspices. And the Progressive movement or Congressional Democrats have historically done a better job of making things happen under those contexts.
But when their responsibility is genuinely diffused across agencies and departments, I think historically the ability to push for action has been undermined and so requires ever greater focus to make things happen when there’s a lot of the least common denominator or the least common cabinet member, the least energetic person, can undermine it. And who to blame is most difficult for populace and membership driven organizations.
MR. TEDDY DOWNEY: Well, we have had an amazing, wide-ranging conversation. Congrats on all the influence that you’ve had and the success you’ve had with the Revolving Door Project.
And thank you so much for taking all the time to talk to our audience about this. And we look forward to seeing more from the Corporate Crackdown Project as you roll out more editions.
MR. JEFF HAUSER: It’s been my pleasure. Thanks for having the conversation.
