Feb 18, 2025
On February 10, The Capitol Forum hosted a conference call with the Chair of Cuneo, Gilbert and LaDuca’s Public Policy and Legislative Affairs practice, Slade Bond, to discuss how the Trump administration could impact antitrust enforcement and the outlook on competition policy in Congress for the rest of 2025. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good morning, everyone and welcome to our conference call today with my good friend Slade Bond. I’m Teddy Downey, Executive Editor here at The Capitol Forum. Slade is Chair of Cuneo, Gilbert & LaDuca’s public policy and legislative affairs practice. He recently came out of DOJ’s legislative affairs. What was your title there, Slade?
SLADE BOND: Principal Deputy Assistant Attorney General. So, it’s a long one. But usually it’s just PDAAG.
TEDDY DOWNEY: And he was running legislative policy for DOJ over there. And today, we’re going to be talking about his outlook on competition policy in Congress for the next session. And Slade, thank you so much for doing this today.
SLADE BOND: Awesome. Well, it’s great to be here. I don’t know whose idea it was to do it after the Super Bowl. It may have been mine. But I’ve been drinking lots of lemon water and green tea to get ready just for you, Teddy.
TEDDY DOWNEY: Yes, I imagine we have a lot of happy Philly fans, sad KC fans, a lot of hungover fans generally. So, thanks to everyone for joining us. And really quickly before we start, just if you have questions, you can enter them into the questions pane of the control panel if you’re accessing this on your computer. Or you can email us at tdowney@thecapitolforum.com or editorial@thecapitolforum.com and we’ll collect questions and try to address them at the end.
So, Slade, why don’t we kick this off? Let’s get something out of the way. There’s been some reporting that Gail Slater will get a confirmation hearing this week. Do you expect that to happen this week? And what do you expect to see at that hearing? I feel like that’s a good way to start, right off the jump.
SLADE BOND: Absolutely. So, it’s my understanding she will testify before the Senate Judiciary Committee. She’s been, of course, nominated to be the Assistant Attorney General of the Antitrust Division. It sounds like there’s at least one other person on the panel that may actually attract a lot of the incoming, the person who’s nominated to be the Deputy Attorney General, Todd Blanche.
So, it could be a hearing where, similar to when Makin Delrahim testified, there’s a lot of other things going on in the country and she only gets three to four questions. I do think that we saw with Attorney General Pam Bondi’s hearing that there’s a large degree of bipartisan interest here. You heard Chairman Grassley ask really interesting questions about ongoing cases and support for resources. And that, of course, was echoed on a bipartisan basis. And the tone will be a little bit different for Gail insofar as she has a much richer record to pull from on antitrust, where Attorney General Bondi has somewhat of a smaller record from her time as State AG.
I think it’ll be bipartisan. That doesn’t mean that everybody will agree on everything. There could be certain questions from different members who have different constituencies that are a little bit more targeted. But I do think that she’ll have a very productive hearing. And I do think she has really broad standing support in the Senate.
TEDDY DOWNEY: And more generally, we’ve seen — I don’t want to call it like total chaos, but very dramatic action from the Trump administration to cut down personnel, reverse policy on a wide range of economic regulations, shutting down the CFPB, shutting down USAID. What do you see when it comes to DOJ and FTC? Do you see that kind of dramatic move, perhaps along the lines of the One Agency Act looping in FTC’s powers to the DOJ? Or do you see that playing out more in Congress as opposed to administratively? I think that’s kind of on everyone’s minds how subject DOJ and FTC will be to this sort of regulatory.
SLADE BOND: Yeah, who’s next in line to get DOGE’d? That’s the question. And the crazy thing is that we’re still, and this is kind of breathtaking, but we’re still on episode one of season one of this administration.
So we haven’t even gotten to episode two yet and we’re talking about these wild changes throughout the administration for agencies like the CFPB that really do important work on behalf of the American consumer.
I do think antitrust is a bright spot, though. I kind of want to take a step back and talk about what’s on the line in terms of the ongoing cases. What are some of the big things to expect? And we can sort of focus on that and zoom out and say are these cases that are subject to bad settlements? Are these things that could go away? Are there forthcoming matters that have been reported that never make it out of the building? Those are the questions that I had the most concern about coming into this year. And I’ll say that I think that this is generally a bright spot.
And so, in terms of Jonathan’s record, and I worked with him at Justice Department very closely, he had, when he left, I think it was about eight ongoing civil matters. He had search, ad tech, Agristats, Apple, Ticketmaster, RealPage, Visa, UnitedHealth. And then after he left, there’s KKR, Global Business Travel, and most recently, the HPE Juniper deal. So, that’s eleven ongoing civil matters that I can count, possible there are more. And that’s truly incredible. And I’m not just saying that to praise Jonathan and his record, but that is what he held himself out as at the start of the administration, a Robert Jackson or Thurmond Arnold for the 21st century. It’s an incredible record.
And so, the biggest concern that I had coming into this year is that we’d see sort of this interregnum period where you have, I don’t want to say faceless bureaucrats, because these are all people, but people you don’t necessarily know who maybe don’t have a reputation or record on antitrust, meeting with opposing counsel.
And that is exactly what CEOs are telling investors. They’re saying, look, things have been big, hot, and heavy over the past few years. But we’re going to see a more sober pro-consumer welfare approach at the agencies. And so, they’re trying to come back to the table and take down enforcement meetings or offer weak settlements.
The good news from my perspective is I’m a little bit skeptical that’s going to work. We’re seeing this with the HPE-Juniper deal where Omeed Assefi, who’s the acting Assistant Attorney General, is saying really strong things about antitrust. He’s relying on the 2023 merger guidelines. And that’s incredibly important in terms of at least making me feel a little bit better about direction of activity here.
And we’ll see what happens when Gail gets in the building. I don’t expect her to be on the Senate floor before next month, just given the pace of the Senate and the likelihood that she’ll be held over. But I think that she’s going to have a really, really bipartisan vote and a mandate to really bring strong enforcement actions on top of what Jonathan did.
The other clarifying point I’ll make is that these people are all different, right? Jonathan is Jonathan. Lina is Lina. Gail is Gail. Andrew is Andrew. They’re all different people. I have great hope that Gail will be tremendous and that Andrew has a really large vision for his leadership of the FTC, but we have to wait and see what they do and how they put those words into action. I’m reminded of a Bill Baer-ism, which is “show then tell.” And so I’m really interested to see what they show in their first 100 days.
TEDDY DOWNEY: Yeah, Assefi, in particular, we’ve already seen choosing the strongest enforcement option available to him. Frankly, I find it very interesting that you have someone with a career enforcement record when it comes to criminal, violent, crime and things like that coming in and running the Antitrust Division. Seems like less hemming and hawing about will we win in court and more of a question of just is this an illegal merger? Okay, we’re going to sue.
SLADE BOND: It’s a “just do it” mentality for sure. You guys reported this last week, but that case sounds like it was a closer call where you had career staff putting it to principals to make the decision. And that’s why I’m so encouraged because it’s the close calls that are the hardest to make. And you could have seen an alternative outcome of like, “well, gee the person who’s going to run the Antitrust Division is not yet confirmed. This is big use of agency resources. This will be our 11th civil matter. Let’s just hold off on this one.” And that didn’t happen.
The other thing that people are saying that I noticed is that somehow these are Biden holdovers making the call. And that’s just not true. I mean, Assefi had an incredibly strong statement about the threats of that merger “not just being theoretical,” talking about vital industries like hospitals and small businesses and how wireless networks are key to their missions.
TEDDY DOWNEY: Yes, we’re definitely getting indications that there will be strong antitrust enforcement. But then again, you see them shutting down the CFPB and it’s just not really coherent. So, let’s talk a little bit more about Ferguson and Meador and just the dynamics at the FTC. It seems like with Slater and Assefi, we’ve got an aggressive approach, unlikely to do weak settlements, maybe more a continuation of the status quo than was expected from holdovers from the Biden administration.
On the FTC side, I’m certainly a little less clear on how that will shake up perhaps before Meador gets there, just given Meador’s strong track record on antitrust enforcement. What’s your outlook when it comes to FTC and what you expect there? Obviously, they have a lot of cases as well, Amazon, Facebook, PBMs, Rollup and Anesthesia, Syngenta, Corteva, Southern Glazers, RPA, Big Soda, Pepsi, RPA. They’ve got a lot on their plate as well. What do you see happening over there?
SLADE BOND: Yeah, just to pause on Gail for a second, she and I worked closely together. She was one of these people who worked really closely with conservatives to build support for aggressive antitrust. So I could not be happier with her. And I worked with Mark when he was Chief Counsel for Senator Lee. He and I worked really closely together on the Merger Filing Fee Modernization Act. And he’s someone who really believes in investing resources in robust enforcement.
So, to go back to a question, a few questions ago about sort of what’s the future of the One Agency Act and DOGE enforcement, et cetera? I kind of think the bright line really is consumer protection versus antitrust. Consumer protection seems like something that is inherently more regulatory and more likely to be ossified in this administration. And that’s reflected in the freezing of CFPB and sounds like this is not a huge area of priority for the FTC.
On the other hand, Chair Ferguson has made it pretty clear that he is skeptical of Big Tech. He was tweeting last week about Amazon’s market power over booksellers. And Commissioner Holyoak was saying something along the same lines in her speech about this being a measure of market power, the ability to suppress viewpoints. And I know it’s a different tune, but it’s kind of the same song that progressives have sung too in terms of the power of monopolies to dictate speech online. So, I think that’s something to take seriously. And it’s not just culture war stuff about DEI policy.
The other point is on healthcare, I expect him to have a very active agenda, not just on PBMs, but elsewhere. So, this is an area where there is like really broad support in Congress, like Buddy Carter, the Chair of the Healthcare Subcommittee, is a community pharmacist who really believes in this stuff. And Energy and Commerce is the authorizing committee for the FTC. You have all these roadblocks, like him and Chuck Grassley, who cares about that issue really closely as Chair of the Judiciary Committee in the Senate, who are going to stand in the way of the One Agency Act even getting a floor vote. I just really don’t see much movement behind that bill. And maybe it does get a floor vote and people symbolically support it just to go along with it. But I think it’s a solution in search of a problem, really. And even as a DOJ alum it’s certainly not something that I would support.
The FTC is independent and they have their own reasons for existing. I think President Wilson said something like, after he signed the FTC Act into existence in 1914, “they’ll go when others stop.” That’s their whole mandate.
But returning to Ferguson, Meador, and Holyoak. So, Ferguson, when he was in the Senate, was quietly very supportive of some of the work we did in the tech space, particularly around mergers. He was someone who, when he was in Leader McConnell’s office, we knew was watching what we were doing very closely and was supportive. I would see him as being skeptical of additional consolidation by Big Tech companies. And I don’t see a huge change happening in the litigations. You know, the Facebook case was, of course, initiated by Joe Simons, I think, in December 2020. It’s going to trial here really soon. And then the Amazon case obviously was brought under Chair Khan’s Commission. That has a couple of years. I think it’s fall 2026.
So, really, the thing that I’m watching closely are these three-two decisions that we had votes where, as a minority commissioner, Ferguson said, maybe I agree with you in principle, but this is the wrong way, or this is the wrong process. And so, now that he’s the Chair, it’s going to be really interesting to see, okay, well, I really do care about workers. I really do care about grocers who are being screwed over by dominant companies in the supply chain, et cetera. So, that’s an interesting thing to watch. And I don’t think we have a good answer to it yet.
TEDDY DOWNEY: When it comes to personnel and the One Agency Act, it sounds like you’re skeptical, though of like any kind of wholesale overhauls or anything like that. But when it comes to personnel, if the hiring freeze remains, and there continues to be significant attrition at the DOJ and/or the FTC, they’re going to be looking at a pretty stark reduction in personnel by the end of the year. If you have attrition and you don’t replace it, you’re going to end up with 10, 20 percent of your workforce gone. Do you see that happening? Or do you expect once Slater and a full slate of Republican commissioners are in that they will get waivers and be able to hire? Or do you see the sort of starving the beast strategy playing out here?
SLADE BOND: So, three points. The first is that, to your point, there is no slack right now. So, Jonathan said this quite a few times. But in terms of real funding, the Antitrust Division is still at lower staffing levels than it was prior to 1980. And there was an effort to starve it in the 80s. And we did a lot to try to invest in enforcement. So, if you look at some of the effects of the merger filing fee legislation, that that’s why you have eleven ongoing cases because there was money for enforcement.
And then back in 2023, as part of the Fiscal Responsibility Act, appropriators changed it such that the Antitrust Division no longer has access to those fees. So, I think at last check in December, there was about $12 million in an account in the Treasury that just is not being used, because it was shifted away from enforcement.
The other point I would make is because enforcement is revenue generating, antitrust pays for itself. And so, to the extent that Mike Lee as Chairman of the Antitrust Subcommittee of the Senate wants the law that he helped pass to actually be effective, and wants Gail to have the resources she needs, that is the first thing. Is the money there?
The second thing on the hiring freeze is we had to fight for staff at the beginning of Jonathan’s tenure too. Because PPO in any administration is going to have different competing priorities where this secretary needs their people. This secretary needs their people. The Attorney General needs these five people in the front office of the National Security Division. And so, regardless of impediments, you’re kind of cutting against that problem all the time by trying to get your people in the door.
And so, this administration will be staffed by people. It will have political leadership. Every component of the Justice Department will have critical leadership, either in an acting capacity or new people in the door. I view this as being somewhat of a temporary freeze. That’s the second issue.
The third issue is we’re facing down another funding cliff here next month. And basically, a month away, the money is going to run out. And so, I’m curious to see what kind of agreements come into place as part of that. Because every time you have a CR, to your point, it makes it harder to backfill. And so, with the FTC, the costofliving adjustments have all been huge constraints on their resources already. And so, any additional throttling of their budget is going to be problematic.
I think that’s a real thing. And I think it’d be foolish to discount it. I also think that there could be areas where these are people who have immense political reach. Gail worked for the Vice President of the United States. And Mark worked for the chair of the Senate Antitrust Subcommittee. So, I just view this as being somewhat different than the rest of the administration.
TEDDY DOWNEY: Yeah, it’s definitely going to be interesting to see. So, I think we were talking about budget. And I had one other question about the budget, just in terms of how you see things playing out in Congress, which is Democrats have been like very feckless and weak in the face of Trump sort of shutting down these agencies and Musk running amuck. One thing they’ve threatened is to just let the government shut down and not help out the House when it comes to these budget bills, shut down the government, I mean. Do you see that as like a high risk? Just there’s the close margins in the House. Republicans have had a hard time getting votes for funding the government. Do you see that as a high risk this time around that we could see a prolonged government shutdown?
SLADE BOND: Yeah. I think Senator Kennedy said that “nothing focuses the mind like the gallows.” We’ll know closer to next month. So, right now, there’s a lot of political pressure to do that tells you that there are just going to be—who knows what’s going to be going on in the country in a month. But there are going to need be Democratic no votes no matter what for a continuing resolution. So, that’s going to be difficult for Leader Jeffries to navigate.
I don’t think that Democrats as a party are all right with shutting down the government. There’s a view among some, like Ranking Member Nadler, that shutdowns should be incredibly painful so that people actually know what the government does for them. And it’s not just “oh, dear, this public park is closed.” But I think it’s a really dramatic thing. But I would be surprised if that was one of the policy tools. On the other hand, there could be concessions in exchange for Democratic votes.
Because to your point the Chip Roy caucus in the House is not going to vote for continued governance. Rand Paul will talk about the uniparty in Washington and things not having changed. And so, you’re going to need Democratic votes to pass these things.
But I think that with Leader Schumer in the Senate, it’s unlikely that’s going to manifest in a continued shutdown because Democrats want to shut down the government. I think the opposite is true. It could be the case where Hakeem Jeffries says, all right, you guys need to do this on your own, that could totally happen. But again, that’s not the default state, even in wild times. We didn’t have repeated shutdowns in the first Trump administration, when horrible things were happening in immigration policy and elsewhere. And so, I think that’s a pretty big leap for Democrats.
TEDDY DOWNEY: I would say you’re slightly out of consensus with your optimism around all this, which I appreciate. I like it. I like to hear it.
SLADE BOND: Yeah, Teddy. Like I said, I’ve been drinking lots of green tea and lemon water.
TEDDY DOWNEY: Maybe we could talk about something a little bit more macro. We’ve seen, I think, there was this notion for a long time that antitrust was apolitical. And I think that pretty much everyone appreciates that that was never true at this point.
You’ve seen China and Europe threaten enforcement against Big Tech in retaliation for tariffs or other trade sanctions. How do you see the weaponization of antitrust, both abroad and in the U.S.? And when it comes to Congress playing out, when it comes to Big Tech, when it comes to just making all these trades, and in particular, the White House. Because Trump has been cozying up to Big Tech, even as he has put in place a SEPI. Slater, Ferguson, Meador, all who have been very active in either enforcing against or saying they want to enforce against Big Tech. So, how do you see this sort of broader narrative playing out? And how do you see the Big Tech stuff playing out?
SLADE BOND: Yeah, so, I mean, everybody watched during the inauguration. And this is the thing that you can never unsee: the executives of the most powerful companies on earth sitting in front of members of Congress. That is truly breathtaking, particularly as a former staffer. An “I never thought it would see the day” type of thing.
Even though I’m not as negative on antitrust as I am in other places, I wouldn’t say I’m not worried at all. The thing that I’m most concerned about, also with first Trump administration, is downward political pressure on enforcement. And this is a function of the dangers of the unitary executive theory, which this administration adheres to, which is the White House’s involvement in law enforcement.
So, in the first Trump administration Stephen Miller was basically running the Civil Division out of the White House, so that the White House could control border enforcement. Which is a thing that did not happen in this past administration. It’s just fundamentally dangerous. And it goes against the whole treating like cases alike and following the facts without fear of favor norm that is really important in antitrust enforcement, too.
So, if you put on your “I can’t believe it was so many years ago” hat, we had AT&T, Time Warner, and Trump was talking about CNN as a pound of flesh. And there was Times coverage of this that was extremely credible. There was the auto emissions matter, where there were years of oversight into whether there was downward pressure by the White House. I mean, the crazy part is it’s all happening on your phone, right? So, you have these statements that on Twitter, now on Truth Social, that folks will have to interact with. So, that’s the first issue.
The second issue is on sort of framing of your question, China and EU. China, of course, recently announced that it was going to look into allegations of Apple’s anticompetitive conduct, which lots of jurisdictions are looking into. I would not defend China’s motives of doing so. But I would say the EU is totally different in terms of the process they have with the Digital Markets Act, the non-discriminatory enforcement of that act, the fact that American businesses want to see enforcement of antitrust abroad, that’s something that’s different to me and not retaliatory. But in terms of how different jurisdictions react, this is a question right now.
The Financial Times reported recently about how the EU would potentially soften enforcement against tech because of the threat of tariffs. But since then, we’ve been reassured that — to the extent that these reassurances offer solace — that that’s not true, that they are going to follow the facts where they take them. People like Andreas Schwab, who was in Washington for a conference last week at the Knight Georgetown Institute, has said that’s not true. And so, to the extent that leaders of the European Commission, leaders of, members of the European Parliament are saying that’s not true, it gives me a little bit more comfort.
But yeah, I think that the third part of your question was what is different now? And do we have the kind of checks on the system, such that to the extent there is this political interference, or there is this weaponization of antitrust? Like, would we know about it? Could we do anything about it? And this is the area that I’m also fearful about.
So, when we had the first Trump administration, we were in the majority in the House. So, I worked for Chairman Cicilline and Chairman Nadler. We had the power to issue subpoenas and hold hearings and call people for Congress and launch investigations. You know, I helped draft then Speaker Pelosi’s statement on the California emissions investigation. Now it’s a tougher go around, right? Because Congress may have the power of the bully pulpit, but it does not have the full reach of Article One of the Constitution in the same way we did in the majority. So, that’s also real, and that’s concerning.
TEDDY DOWNEY: When you look at some of the threats from the Trump administration right now, which is there’s been some reporting that the Trump administration, if they end up losing in court, will just not obey the court orders. How worried are you about that, just sort of this broader threat to the rule of law? And how concerned should we be about that?
Initially, I sort of dismissed that as a possibility. Because business likes certainty around the rule of law. They like that their contracts are going to be enforced. They like that they can go to court when something goes against them. And I’m open to being naive or wrong about this. I’ve been told that numerous times now. So, I wanted to get your take on that, how you think about just disobeying court orders and Musk doing what he wants, no matter what.
SLADE BOND: Yeah, I mean, this is a real concern, right? So, I think it was Kara Swisher and Scott Galloway were saying that state attorneys general should go to whatever agency’s being hollowed out at that moment and threaten to arrest people. And I’m not sure that’s how it works. And I’m not really sure what the resources are or the legal tools available for challenging an agency action subsequent to a court granting an injunction. But it is lawless, right? It’s completely lawless. And I’m waiting for, like everybody else, Senate Republicans to speak up on some of these issues where they fundamentally disagree.
Granted, President Trump has tremendous power over his party right now. But when we were confirming people to key positions with the Biden Administration, the power to get something you want just to vote yes on a nom is pretty significant in the Senate. And so this could be an area where you don’t see reporting by a Senator who is less inclined to support nominations of the Cabinet for controversial positions can say, hey, if you keep going down this road, I’m voting no on every nominee. And the threat of that could be a moderating factor.
But I don’t want to sugarcoat it. I mean, this is horrifying. It’s completely out of touch with our standards in the country. And I’m not a “norms-for-norms-sake” person. But these are ones that, to your point, you can’t have business certainty at the very least, let alone predictability in the country if you don’t have enforceable rules. And I do think it is edging into a constitutional crisis in a way that is not hysterical to say. It is completely reckless.
TEDDY DOWNEY: And we’ve got a couple of questions from the audience here. One thing that I think the Trump administration has been trying to be as hands off as possible on is AI. But again, there’s a little bit of dissonance. You sort of have an executive order that’s sort of deregulatory when it comes to AI, but then you have these aggressively sort of anti-Big Tech, antitrust enforcers. How do you see that playing out?
SLADE BOND: Yeah, so I guess the Vice President is in Paris today at an AI summit, and he’s trashing the Digital Services Act. And over across the Atlantic, there’s this actual right-wing fomenting of very MAGA-like voices around content moderation, echoing a lot of the concerns of Jim Jordan and others and Elon Musk in particular. That’s different than antitrust, right?
So, that’s the Digital Services Act, not the Digital Markets Act. And so, there’s this weird bright line where I absolutely think that the Trump administration will use levers of trade policy to influence Elon Musk’s vision for speech in Europe. That’s the thing that concerns me.
On the other hand, I think that’s a little bit different, or maybe fundamentally different, than some of the competition work of JD Vance. I remember we did a classified briefing on the TikTok legislation last year, and he used the phrase, “I am in violent agreement” referencing Senator Klobuchar’s remarks on the need for robust competition rules in the United States. So, I think that that’s just somewhat different.
But going back a second, one of the things that also gives me pause is we really don’t know — I mean, obviously, we’re all reading headlines together. We really don’t know what trade policy looks beyond these kind of huge statements. And so, the thing that concerns me is a few minutes ago, I said European leaders are saying the right thing about the future of these laws that were democratically passed, that have been years and years in the making and finally going into action, too slow, if anything. But does that change because of one of these kind of sweeping policy statements that we just don’t know? That should be a source of concern.
TEDDY DOWNEY: Let’s stick on Section 230 and that type of issue for a second. I think there is a weird alignment among Justice Thomas and Alito and the neo-Brandeisian movement where it’s like, yes, we should have common carrier regulation of Big Tech. But then on the left, or among Democrats, you have this very unusual sort of First Amendment purity test that historically was more along the lines of protecting speech for citizens.
And now Democrats are just as eager to protect speech of corporations sort of buying into, I think, a very controversial sort of corporations have the same rights as citizens, sort of series of decisions at the Supreme Court over the past 20-ish years. How do you see that playing out when it comes to Congress, when it comes to sort of where the Democratic Party is going to go ultimately? You know, the Democrats at the Supreme Court have been sort of like, oh, we need to protect free speech for Big Tech. I mean, it’s pretty intellectually empty as far as my reading of it is. I don’t know what you’re thinking is. But as far as a rigorous debate, this hasn’t actually happened in Congress yet in terms of pushing toward any kind of resolution. I’m curious, this seems like an interesting year or two for that. And I would love to get your comment.
SLADE BOND: That’s a great point. So it is easy to not believe that this Congress with this composition can actually pass laws. It seems really unlikely. And then you remember, oh, yeah, Congress passed laws last year with basically the same margins. They were able to get things across the finish line where there was bipartisan, bicameral consensus, particularly around national security, or protecting public health and safety on critical matters. So, things can happen. It’s not a null set.
In Congress, you’re absolutely right, there are these strange alliances, strange insofar as the evolution of my party, I think, is concerned because it used to be First Amendment maximalism was for people speaking or the common square. And what we’re talking about now is really like algorithmic reach and decisions around what content is amplified and how and what kind of safety we have around what people see online, particularly children and young adults.
So, that’s kind of going in two different directions. One is stopping CSAM and child exploitation online. That was a big focus of Chairman Durbin, something that Senator Grassley has signaled support for. He recently had a hearing focusing on fentanyl supply. And it came up in that context too. Because if you can buy fentanyl online or drugs that are laced with fentanyl that will kill you, that’s not great. And the idea that platforms have no liability for illegal drug trafficking online, and that’s happening on their platforms, has drawn significant bipartisan concern.
So, yes, Senator Wyden, the architect of Section 230, is never going to be onboard with that stuff. But it is a toss-up issue among Democrats right now. To your point about First Amendment maximalism, this to me really is the weaponization of the First Amendment, right, in a way that is inherently pro-corporate, anticonsumer, pro-abuse, and it’s been enabled in the worst ways possible.
You’re absolutely right on the Supreme Court. We saw that in the Net Choice litigation last year. And I think that to the extent that Congress was able to enact something like the Earn It Act, which the administration supported back in, I think, was 2020. You know, that’s something that like who knows how the court will come out on it. There possibly could be portions that are upheld and portions that aren’t.
But going back to TikTok, that’s an area where Congress is legislating around the First Amendment; people’s ability to communicate on an enormous huge online platform. And we saw the Supreme Court overwhelmingly uphold that law on the basis of the national interest that it was intended to advance, national security. And to your point about the last century of regulation around communications law, that’s something that’s really consistent with our democratic policies of the past century.
So, I think it’s absolutely something that is in play. I think you’re absolutely right about that. I think with any of this tech accountability legislation, it has the votes. If you go back to 2022, you had an 88 to 8 vote on the filing fee bill.
If you listen to the detractors on that bill, that bill rewrote Section 230. People literally said that on the House floor. They were telling other members that it would give Ken Paxton unlimited resources to go after tech companies for policing misinformation online. Of course, the bill did not do that. But to the extent that detractors believed that vote was not reflected in the final vote.
You had the Open App Markets Act, 20 to 2. You had the American Innovation and Choice Online Act, 16 to 6.
And then more recently, you had the Kids Online Safety Act out, I think it was December, with something like 91 votes.
So, I if you put tech accountability legislation on the floor, it’s going to be successful.
And I think that 230 is going to track, maybe not as closely to the TikTok vote, because that is such a nuanced issue where people like Jim Himes. And he was a ranking member of the House Permanent Select Committee on Intelligence. And Jerry Nadler may have just really nuanced, issue-specific views on that. But to the extent that you’re going after fentanyl or child online safety issues, which I think is really likely, I think that’s an overwhelming vote that’s incredibly hard to vote against.
TEDDY DOWNEY: And do you see any vehicles to watch where this type of stuff could get passed? I mean, some of it’s obviously policy-specific. So probably, I mean, not germane for a reconciliation bill. Although, who knows who the parliamentarian will be? And maybe that’s a thing of the past as well. Maybe I’m thinking too inside the box here. But what are your thoughts on vehicles that we could see big antitrust or Big Tech or what have you, what should we be keeping an eye on?
SLADE BOND: So, what I’ll do first is I’ll talk about vehicles, and then I’ll talk about things that could move, particularly in that space.
So, on vehicles, your question with the parliamentarian is really about reconciliation. So, could you have a 50vote threshold for something policy-specific? And the reason why you need a parliamentarian there is that those types of things have never survived a “Byrd bath” in the Senate, the process for sort of sussing out what is policy and what is strictly budgetary. And I know, because we tried to get the merger filing fee bill in through reconciliation in the first go-around, and it did not survive that test. So, it’s not like this is something that both parties haven’t tried before.
So, the next question is, what kind of guardrails are in place in the Senate? And again, I’m going to caveat everything with we’re kind of in extremely uncertain times and who knows? But Senator Thune has signaled that he is very opposed to abusing the parliamentarian in this way. He is opposed to getting rid of the filibuster, and this is tantamount to getting rid of the filibuster. He has not signed up for that.
That said, people will try. They’ll try in all directions. They’ll try to do it with the One Agency Act. They’ll try to do it with any priority, because that is what members do when you have something like this huge vehicle. It’s like basically an open amendment process subject to the whims of whoever wants it to happen and the guardrails with the parliamentarian.
So, yes, could you see a post-parliamentarian ruling where President Trump says the parliamentarian should be fired? And all of a sudden, there’s like a fresh new question about oh, my God, is this actually going to go through? Like, that could totally happen. But that’s the framework we live in.
Now, in terms of other vehicles, every extension of government funding is a vehicle, right? And so, we’ve had really skinny omnibuses over the past few years, but they haven’t been completely just specific to a continuing resolution on each occasion. There was an effort to include reauthorizing Section 702 as part of one of the — this is 2023. So, December of 2023, Johnson tried to do this and it was overwhelmingly rejected by his members. And so, it was extended to the following year. So, anytime there’s a vehicle through a continuing resolution, that’s a chance for anything to move that has support.
The way that process works, just to dig down for a second, is you have to have what’s called four corners sign off, which means you have the chairs and the rankers of the committees of jurisdiction onboard with it. And so, one example of where you didn’t have that is with the NDAA in 2022, where we almost got the Journalism Competition and Preservation Act into law. It was going to be law for two days and then it wasn’t. And that was simply because Kevin McCarthy signaled he was not going to be onboard with any package. And we didn’t need Jim Jordan’s support as the ranker of the committee. We had “three corner support”, Grassley, Durbin, and Nadler, which was good enough for that process.
So, that’s how that will play out. In terms of which things I think will move, I’m actually really bullish on the App Store issue. I think that’s one where you have strange bedfellows on the outside. So, you have like Elon Musk, who very clearly has a sweetheart deal with Apple that is like the only thing holding him back on these issues. And then occasionally he shares his opinion. So, I think two weeks ago, he had a tweet or whatever. And then you have other people like Mark Zuckerberg, of all people, going on Joe Rogan, complaining about Apple’s dominance.
And so, that’s one where there’s really only one company against it. There are a lot of companies for it. Maybe two companies include Google, but they have a different approach than Apple in some cases. And so, that’s one where I just think the politics are fundamentally different. And I think that to the extent that you have companies all along the economic spectrum looking for something or at least not opposed to it makes it very doable. That said that’s one that hasn’t moved. It wasn’t introduced last year or was introduced. No, it wasn’t introduced in the Senate last year. And so, it’s one just to keep an eye on generally.
In terms of the bigger antitrust legislation, Chairman Grassley was as supportive of AICOA as any person in the Senate other than Klobuchar. He cares about that bill. He cares about tech antitrust generally. He’s not going to move legislation over the opposition of his members. And so, that’s a challenge.
So, to the extent that they’re going to have a markup he has 16 to six. So, he had two members who are like never going to support it. I don’t think Mike Lee would support the current version of it, the very least, even though I think he would support OAMA again. And so, that’s just something to watch. Like, is there a hearing? Is there a vote? Does it take a different form? Is there more emphasis on the America Act? So, breaking up the digital ad monopoly, ad tech monopoly. And so, that’s something else to watch. But I think of all these issues, the app store, online safety, those are the most interesting ones to watch.
TEDDY DOWNEY: And then maybe we could talk a little bit about the Senate, the makeup, the dynamic here, new players. We’ve got Booker who looks like he’s going to take over antitrust subcommittee. We’ve got these different factions. You mentioned Thune, different factions in the Senate.
Who should we be watching in terms of important voices on both sides? And the difference between last Congress? And then also, just how what’s the dynamic? How do you see it playing out among Senate leadership, with Trump and the various factions? Obviously, Musk is sort of having this little mini war with Steve Bannon and even maybe to some extent the J.D. Vance types where they’re sort of — they just don’t have the same goals. There’s sort of a line right now and just creating this chaos. But at some point, they’re really going to clash in terms of their priorities. You know, you saw Steve Bannon-publicly come out in favor of Lina Khan, call himself a neo-Brandeisian and ask for all this additional enforcement. And then Musk is all over the map, really, when it comes to that type of stuff. So, just would love to get your view on who are the key people to watch and how we should think about all these sort of warring factions in the Republican Party?
SLADE BOND: So, this is not like a left right issue, which is why it’s different than every other policy administration, because it’s fundamentally about taking on corporate power. And both parties have their blind spots on this.
So, right now on the Republican side antitrust is kind of in a cold war between the House and Senate. So, in the Senate, this is the best draw for robust enforcement. Thune is always, always supporting legislation in this area, whether it was the Access Act or other bills. You know, he was the co-sponsor on the TikTok legislation. He’s there. Barrasso’s there. Cotton is there. I mean, Cotton has been critical of the FTC, but he supports robust antitrust. Grassley, I’ve already mentioned. Mike Lee has more nuanced views, depending on the bill and what kind of authorities it’s giving to the administrative state. But I mean, he wants to see these companies, I think, broken up. So, the state of antitrust in the Senate is strong.
The House is different. They spent the last two years investigating Lena Khan’s FTC and there is scar tissue. There was an interview with incoming Chairman Scott Fitzgerald’s staff in the ABA last week where the talking points I heard were very consistent with Jim Jordan’s view of the world. And that’s kind of surprising because Scott Fitzgerald was one of the supporters of the filing fees legislation, because he had the counterpart to Tom Cotton’s bill that would increase scrutiny of acquisitions by foreign adversaries.
So, I could see some shadow boxing where they talk a big game about the One Agency Act because they have built up animosity towards the FTC. But again, the FTC getting DOGE’d is not on the menu. And it seems completely out of sync with this administration’s approach to these issues. So there’s just like real tension that’s just it’s going to need to be navigated. And what will we see in this Congress? Will Jim Jordan run for speaker again? Absolutely. If the opportunity presents itself, he absolutely will do that. And so, he’s incredibly powerful and his ability to shape policy in this area can’t be overstated.
And this whole kind of moment reminds me of a time back when Antonin Scalia in 1981 was arguing against reg reform in Congress because that was a thing that Congress was very interested in doing. And he made the point like we control the executive branch now. Because Reagan was in power. Stop trying to paralyze us now that we have power. And that just feels very much like the One Agency Act.
On the Democratic side, this is like my favorite part of the Congress, not just some Democrats because I worked with Republicans and really appreciate them, too. But Jamie Raskin is the new ranking member on the House Judiciary Committee. You know, he was an incredible part of the digital markets investigation when we did it. He is one of the smartest people in Congress, period. He’s an autodidact. He absorbs information at an insane pace. I remember we did an antitrust and democracy event with him and Zephyr Teachout. And he read her book the night before. Of all the people I’ve worked with, the only person who is as smart as he is Merrick Garland in terms of their ability to process information and just look at things from every single angle.
Raskin he kept on his staff. That was the first question of what he would do as a ranking member. And then he had Lina come to brief his staff during the retreat. That’s interesting. And so, right now, to your point earlier about like, where is the leadership? This is a gap, right? Like what are Democrats going to do? They need to go big.
They know they need to go big. Jeffries and his team are fully aware of that. They fully support that. And so, that’s just a really interesting space to watch.
And then if you scroll down a little bit on House Democrats, you have — I’ll get back to the Senate in a second — you have all of these new members that are like really a bright spot. So, Maggie Goodlander was a DAAG in the Antitrust Division. Shomari Figures was deputy chief of staff for Merrick Garland and a Senator Brown staffer. And you’ve got Josh Riley, who was my counterpart on Al Franken’s staff. That is like a post-Watergate wave. But people who, contrary to Matt Stoller’s criticism of the Watergate Democrats, are going to be great on economic issues. And so, I could see both the top down and a bottom-up approach. You also have Pramila Jayapal, who was the Chair of the CPC. She’s like a Senator in the House. She’s someone who can run policy circles around people.
And so, going back to the Senate, you also have this moment where you have new leadership on the Senate Antitrust Subcommittee for the first time in a long time. So, Senator Klobuchar now, of course, is the ranking member on Senate AG. She’s still going to be a huge leader on this stuff, there is no question about that.
But you have Booker, who’s the new ranking member on the subcommittee, which was kind of a surprise to some people. I think that’s just a recognition of how important this issue has become, that it’s like core to the Democratic Party’s view on economic opportunity and dignity and the importance of workers and the importance of consumers and small businesses. And I think that’s how he’ll talk about it. Going back to really, really, really smart members of Congress, he is one of the best listeners I have ever worked with. He is somebody who is incredibly thoughtful, who listens actively and will repeat back what he heard just to interrogate his assumptions.
And he’s evolved on this issue. Back in 2019, he criticized Trump for calling just for the breakup of Big Tech generally. And his point was fair. It was like, you can’t just break companies up. You have to have a process. And that’s basically law enforcement. But he got jumped on in response to this comment. I think Warren swatted back at the time. But now he’s an original co-sponsor of AICOA, OAMA, and JCPA. He’s just had a huge shift on these issues. So, I’m also watching how he staffs up.
There isn’t really a budget for the subcommittee. So, his existing staff or maybe like new staff will have to deal with this. And how is he going to respond to the wave of mega mergers that we know are coming? How active is he going to be in terms of advocacy? Will he try to stake out a new space here like he has with AG? He supports an AG merger moratorium. That was a big bill he worked with Sen. Tester on, and something to watch, too.
And then lastly, we haven’t talked about the role of the state attorneys general yet. But this is huge, right? This is the exact thing we need to watch, which is they are going to be able to continue enforcing these litigations even past the point of federal settlement. And we know this, not because they’ve done it only in the past, but also because they’re saying they’re going to do that. Keith Ellison, Minnesota state AG, said this in a recent interview, I think with Stacey Mitchell, that they’re continuing to do this in the long term, even where the feds are not a reliable partner. And what he said exactly was we are not going to quit no matter what the federal government does. And then he rattled off a list of cases from Ticketmaster, Real Page, to Agri Stats. And so, that’s an area where you’re just going to see people continually, like Attorney General Plotkin in New Jersey, and Kris Mayes, the Attorney General of Arizona. These are people who work really closely with enforcers in the Biden administration.
And then the last thing I’ll hit on briefly, because we’re really running late on time, is state legislation. So there are two buckets. There’s general antitrust and then there’s procompetition legislation. So, the pro-competition side this, kind of is like one of those how could you be for the thing areas where you’re going to see non-competes legislation or legislation around specific things that are pretty indefensible.
And then on general antitrust I think that there’s new life in states reform in a way that kind of languished during the Biden administration, simply because the administration was doing so much. And so, to the extent that states say, hold on a second, like we get a say in this too, New York, California. We could see major reform. So, Bloomberg reported recently that Chairman Al Stirpe in the New York Assembly has been looking keenly at this issue. You know, there could be some trading on legislation. That’s a given. But that’s something that’s really interesting to me.
And then in California, anything that makes it out of this legislature could obviously be vetoed by the governor. But they’re really bearing down on this stuff. There’s reports that they support an abusive dominance like standard. The state attorney general in New York is working closely as part of that Commission process. And that’s very encouraging.
So, you could see both the bottom-up process on legislation, a bottom-up process on enforcement. You know, the states are the laboratories of democracy, as Brandeis would say. And then also some top-down support, depending on what sector of the economy you’re talking about.
TEDDY DOWNEY: Last question and I’ll let you go. Thank you so much for doing this. Last question. RPA. I’ve gotten some feedback that Congress has bipartisan support for RPA or that there’s like the inklings of that or the beginnings of that potentially. And we’ve seen bipartisan support at the FTC for just enforcing RPA generally, even though there’s disagreement on how to do it. What’s your expectation on RPA and sort of congressional and even like you said, states looking into this as a solution, especially as we get into prolonged high prices across industries.
SLADE BOND: Yeah. So, this is a little bit TBD given the dynamic at the FTC, but it is such a powerful tool to address firepower. And it’s really a law that has a story path. This is one of my favorite parts of Stoller’s book, “Goliath” with Wright Patman. But it’s a law on the books that just wasn’t enforced for a very long time, which is kind of shocking. Going back to this Congress passed the law that’s meant for the agencies to enforce it. And then they just decide this is a silly law and we’re not going to enforce it. It feels very Monty Python.
But no, I think this is an area where the law is more bipartisan than you would think, even though it was a huge priority to Chair Khan. Ferguson and Holyoak have signaled that they’re open to enforcement here. The case is out the door. You have cases out the door. Are you going to call them back? The litigation strategy can change somewhat, but are they really going to kill an ongoing case in this area?
But going back to political support, this is an area where Congress has heard really significant support from the business community. And so, the question there is that, well, what are small businesses telling Congress? And they’re saying like, hey, this is a law on the books. It works. We want to see it enforced if there’s a chance to breathe new life into small businesses on Main Street. That is something that they’re for.
And so, this an issue whose time has finally come. It’ll be really interesting to see what Ferguson does and what direction he takes. But if you go back to even his dissenting statements, it’s kind of tricky because he says, well I agree. You know, this is a problem. Or I agree this is something that we should look into, but then kind of opposes the thing on the basis of process or sort of a more fundamental concern. And so, I’m curious to see how it comes up.
On the other hand, I think this is an area where you have really strong support by someone like Commissioner Meador. And then, all of a sudden, you have a three two commissioner with one Republican commissioner supporting the thing. So, I just think the math is really kind of fuzzy and difficult to do right now. But it’s definitely an area where I would not discount the possibility of additional work.
TEDDY DOWNEY: All right. Well, this is amazing. Sorry for the technical difficulties. But thank you so much for doing this, Slade. I really can’t thank you enough. This is awesome conversation.
SLADE BOND: Yeah. Glad to be back anytime. Like I said, I don’t know which one of us — I’m pretty sure it was me –planned this for the day after the Super Bowl. But we did well. We could have spent the first five minutes talking about the halftime show and didn’t. So, we all deserve high praise for that.
TEDDY DOWNEY: Yeah, we survived. We survived that halftime show. But thanks again. And thanks, everyone, for joining the call today. This concludes the call. Bye everyone.
