#david dayen

[mostlysignssomeportents]

Why they're smearing Lina Khan

My god, they sure hate Lina Khan. This once-in-a-generation, groundbreaking, brilliant legal scholar and fighter for the public interest, the slayer of Reaganomics, has attracted more vitriol, mockery, and dismissal than any of her predecessors in living memory.

She sure must be doing something right, huh?

A quick refresher. In 2017, Khan — then a law student — published Amazon’s Antitrust Paradox in the Yale Law Journal. It was a brilliant, blistering analysis showing how the Reagan-era theory of antitrust (which celebrates monopolies as “efficient”) had failed on its own terms, using Amazon as Exhibit A of the ways in which post-Reagan antitrust had left Americans vulnerable to corporate abuse:

https://www.yalelawjournal.org/note/amazons-antitrust-paradox

The paper sent seismic shocks through both legal and economic circles, and goosed the neo-Brandeisian movement (sneeringly dismissed as “hipster antitrust”). This movement is a rebuke to Reaganomics, with its celebration of monopolies, trickle-down, offshoring, corporate dark money, revolving-door regulatory capture, and companies that are simultaneously too big to fail and too big to jail.

This movement has many proponents, of course — not just Khan — but Khan’s careful scholarship, combined with her encyclopedic knowledge of the long-dormant statutory powers that federal agencies had to make change, and a strategy for reviving those powers to protect Americans from corporate predators made her a powerful, inspirational figure.

When Joe Biden won the 2020 presidential election, he surprised everyone by appointing Khan to the FTC. It wasn’t just that she had such a radical vision — it was also that she lacked the usual corporate law experience that such an appointee would normally require (experience that would ensure that the FTC was helmed by people whose default view of the world is that it should be structured and regulated by powerful, wealthy people in corporate boardrooms).

Even more surprising was that Khan was made chair of the FTC, something that was only possible because a few Republican Senators broke with their party to support her candidacy:

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00233.htm

These Republicans saw in Khan an ally in their fight against “woke” Big Tech. For these senators, the problem wasn’t that tech had got too big and powerful — it was that there were a few limited instances in which tech leaders failed to wield that power in the ways they preferred.

The Republican project is a matter of getting turkeys to vote for Christmas by doing a lot of culture war bullshit, cruelly abusing disfavored sexual and racial minorities. This wins support from low-information voters who’ll vote against their class interests and support more monopolies, more tax cuts for the rich, and more cuts to the services they rely on.

But while tech leaders are 100% committed to the project of permanent oligarchic takeover of every sphere of American life, they are less full-throated in their support for hateful, cruel discrimination against disfavored minorities (in this regard, tech leaders resemble the corporate wing of the Democrats, which is where we get the “Silicon Valley is a Democratic Party stronghold” narrative).

This failure to unquestioningly and unstintingly back culture war bullshit put tech leaders in the GOP’s crosshairs. Some GOP politicians actually believe in the culture war bullshit, and are grossly offended that tech is “woke.” Others are smart enough not to get high on their own supply, but worry that any tech obstruction in the bullshit culture wars will make it harder to get sufficient turkey votes for a big fat Christmas surprise.

Biden’s ceding of antitrust policy to the left wing of the party, combined with disaffected GOP senators viewing Khan as their enemy’s enemy, led to Khan’s historic appointment as FTC Chair. In that position, she was joined by a slate of Biden trustbusters, including Jonathan Kanter at the DoJ Antitrust Division, Tim Wu at the White House, and other important, skilled and principled fighters like Alvaro Bedoya (FTC), Rebecca Slaughter (FTC), Rohit Chopra (CFPB), and many others.

Crucially, these new appointees weren’t just principled, they were good at their jobs. In 2021, Tim Wu wrote an executive order for Biden that laid out 72 concrete ways in which the administration could act — with no further Congressional authorization — to blunt corporate power and insulate the American people from oligarchs’ abusive and extractive practices:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

Since then, the antitrust arm of the Biden administration have been fuckin’ ninjas, Getting Shit Done in ways large and small, working — for the first time since Reagan — to protect Americans from predatory businesses:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

This is in marked contrast to the corporate Dems’ champions in the administration. People like Pete Buttigieg are heralded as competent technocrats, “realists” who are too principled to peddle hopium to the base, writing checks they can’t cash. All this is cover for a King Log performance, in which Buttigieg’s far-reaching regulatory authority sits unused on a shelf while a million Americans are stranded over Christmas and whole towns are endangered by greedy, reckless rail barons straight out of the Gilded Age:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

The contrast between the Biden trustbusters and their counterparts from the corporate wing is stark. While the corporate wing insists that every pitch is outside of the zone, Khan and her allies are swinging for the stands. They’re trying to make life better for you and me, by declaring commercial surveillance to be an unfair business practice and thus illegal:

https://pluralistic.net/2022/08/12/regulatory-uncapture/#conscious-uncoupling

And by declaring noncompete “agreements” that shackle good workers to shitty jobs to be illegal:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

And naturally, this has really pissed off all the right people: America’s billionaires and their cheerleaders in the press, government, and the hive of scum and villainy that is the Big Law/thinktank industrial-complex.

Take the WSJ: since Khan took office, they have published 67 vicious editorials attacking her and her policies. Khan is living rent-free in Rupert Murdoch’s head. Not only that, he’s given her the presidential suite! You love to see it.

These attacks are worth reading, if only to see how flimsy and frivolous they are. One major subgenre is that Khan shouldn’t be bringing any action against Amazon, because her groundbreaking scholarship about the company means she has a conflict of interest. Holy moly is this a stupid thing to say. The idea that the chair of an expert agency should recuse herself because she is an expert is what the physicists call not even wrong.

But these attacks are even more laughable due to who they’re coming from: people who have the most outrageous conflicts of interest imaginable, and who were conspicuously silent for years as the FTC’s revolving door admitted the a bestiary of swamp-creatures so conflicted it’s a wonder they managed to dress themselves in the morning.

Writing in The American Prospect, David Dayen runs the numbers:

Since the late 1990s, 31 out of 41 top FTC officials worked directly for a company that has business before the agency, with 26 of them related to the technology industry.

https://prospect.org/economy/2023-06-23-attacks-lina-khans-ethics-reveal-projection/

Take Christine Wilson, a GOP-appointed FTC Commissioner who quit the agency in a huff because Khan wanted to do things for the American people, and not their self-appointed oligarchic princelings. Wilson wrote an angry break-up letter to Khan that the WSJ published, presaging their concierge service for Samuel Alito:

https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d

For Wilson to question Khan’s ethics took galactic-scale chutzpah. Wilson, after all, is a commissioner who took cash money from Bristol-Myers Squibb, then voted to approve their merger with Celgene:

https://www.documentcloud.org/documents/4365601-Wilson-Christine-Smith-final278.html

Or take Wilson’s GOP FTC predecessor Josh Wright, whose incestuous relationship with the companies he oversaw at the Commission are so intimate he’s practically got a Habsburg jaw. Wright went from Google to the US government and back again four times. He also lobbied the FTC on behalf of Qualcomm (a major donor to Wright’s employer, George Mason’s Antonin Scalia Law School) after working “personally and substantially” while serving at the FTC.

George Mason’s Scalia center practically owns the revolving door, counting fourteen FTC officials among its affliates:

https://campaignforaccountability.org/ttp-investigation-big-techs-backdoor-to-the-ftc/

Since the 1990s, 31 out of 41 top FTC officials — both GOP appointed and appointees backed by corporate Dems — “worked directly for a company that has business before the agency”:

https://www.citizen.org/article/ftc-big-tech-revolving-door-problem-report/

The majority of FTC and DoJ antitrust lawyers who served between 2014–21 left government service and went straight to work for a Big Law firm, serving the companies they’d regulated just a few months before:

https://therevolvingdoorproject.org/wp-content/uploads/2022/06/The-Revolving-Door-In-Federal-Antitrust-Enforcement.pdf

Take Deborah Feinstein, formerly the head of the FTC’s Bureau of Competition, now a partner at Arnold & Porter, where she’s represented General Electric, NBCUniversal, Unilever, and Pepsi and a whole medicine chest’s worth of pharma giants before her former subordinates at the FTC. Michael Moiseyev who was assistant manager of FTC Competition is now in charge of mergers at Weil Gotshal & Manges, working for Microsoft, Meta, and Eli Lilly.

There’s a whole bunch more, but Dayen reserves special notice for Andrew Smith, Trump’s FTC Consumer Protection boss. Before he was put on the public payroll, Smith represented 120 clients that had business before the Commission, including “nearly every major bank in America, drug industry lobbyist PhRMA, Uber, Equifax, Amazon, Facebook, Verizon, and a variety of payday lenders”:

https://www.citizen.org/sites/default/files/andrew_smith_foia_appeal_response_11_30.pdf

Before Khan, in other words, the FTC was a “conflict-of-interest assembly line, moving through corporate lawyers and industry hangers-on without resistance for decades.”

Khan is the first FTC head with no conflicts. This leaves her opponents in the sweaty, desperate position of inventing conflicts out of thin air.

For these corporate lickspittles, Khan’s “conflict” is that she has a point of view. Specifically, she thinks that the FTC should do its job.

This makes grifters like Jim Jordan furious. Yesterday, Jordan grilled Khan in a hearing where he accused her of violating an ethics official’s advice that she should recuse herself from Big Tech cases. This is a talking point that was created and promoted by Bloomberg:

https://www.bloomberg.com/news/articles/2023-06-16/ftc-rejected-ethics-advice-for-khan-recusal-on-meta-case

That ethics official, Lorielle Pankey, did not, in fact, make this recommendation. It’s simply untrue (she did say that Khan presiding over cases that she has made public statements about could be used as ammo against her, but did not say that it violated any ethical standard).

But there’s more to this story. Pankey herself has a gigantic conflict of interest in this case, including a stock portfolio with $15,001 and $50,000 in Meta stock (Meta is another company that has whined in print and in its briefs that it is a poor defenseless lamb being picked on by big, mean ole Lina Khan):

https://www.wsj.com/articles/ethics-official-owned-meta-stock-while-recommending-ftc-chair-recuse-herself-from-meta-case-8582a83b

Jordan called his hearing on the back of this fake scandal, and then proceeded to show his whole damned ass, even as his GOP colleagues got into a substantive and even informative dialog with Khan:

https://prospect.org/power/2023-07-14-jim-jordan-misfires-attacks-lina-khan/

Mostly what came out of that hearing was news about how Khan is doing her job, working on behalf of the American people. For example, she confirmed that she’s investigating OpenAI for nonconsensually harvesting a mountain of Americans’ personal information:

https://www.ft.com/content/8ce04d67-069b-4c9d-91bf-11649f5adc74

Other Republicans, including confirmed swamp creatures like Matt Gaetz, ended up agreeing with Khan that Amazon Ring is a privacy dumpster-fire. Nobodies like Rep TomM assie gave Khan an opening to discuss how her agency is protecting mom-and-pop grocers from giant, price-gouging, greedflation-drunk national chains. Jeff Van Drew gave her a chance to talk about the FTC’s war on robocalls. Lance Gooden let her talk about her fight against horse doping.

But Khan’s opponents did manage to repeat a lot of the smears against her, and not just the bogus conflict-of-interest story. They also accused her of being 0–4 in her actions to block mergers, ignoring the huge number of mergers that have been called off or not initiated because M&A professionals now understand they can no longer expect these mergers to be waved through. Indeed, just last night I spoke with a friend who owns a medium-sized tech company that Meta tried to buy out, only to withdraw from the deal because their lawyers told them it would get challenged at the FTC, with an uncertain outcome.

These talking points got picked up by people commenting on Judge Jacqueline Scott Corley’s ruling against the FTC in the Microsoft-Activision merger. The FTC was seeking an injunction against the merger, and Corley turned them down flat. The ruling was objectively very bad. Start with the fact that Corley’s son is a Microsoft employee who stands reap massive gains in his stock options if the merger goes through.

But beyond this (real, non-imaginary, not manufactured conflict of interest), Corley’s judgment and her remarks in court were inexcusably bad, as Matt Stoller writes:

https://www.thebignewsletter.com/p/judge-rules-for-microsoft-mergers

In her ruling, Corley explained that she didn’t think Microsoft would abuse the market dominance they’d gain by merging their giant videogame platform and studio with one of its largest competitors. Why not? Because Microsoft’s execs pinky-swore that they wouldn’t abuse that power.

Corely’s deference to Microsoft’s corporate priorities goes deeper than trusting its execs, though. In denying the FTC’s motion, she stated that it would be unfair to put the merger on hold in order to have a full investigation into its competition implications because Microsoft and Activision had set a deadline of July 18 to conclude things, and Microsoft would have to pay a penalty if that deadline passed.

This is surreal: a judge ruled that a corporation’s radical, massive merger shouldn’t be subject to full investigation because that corporation itself set an arbitrary deadline to conclude the deal before such an investigation could be concluded. That’s pretty convenient for future mega-mergers — just set a short deadline and Judge Corely will tell regulators that the merger can’t be investigated because the deadline is looming.

And this is all about the future. As Stoller writes, Microsoft isn’t exactly subtle about why it wants this merger. Its own execs said that the reason they were spending “dump trucks” of money buying games studios was to “spend Sony out of business.”

Now, maybe you hate Sony. Maybe you hate Activision. There’s plenty of good reason to hate both — they’re run by creeps who do shitty things to gamers and to their employees. But if you think that Microsoft will be better once it eliminates its competition, then you have the attention span of a goldfish on Adderall.

Microsoft made exactly the same promises it made on Activision when it bought out another games studio, Zenimax — and it broke every one of those promises.

Microsoft has a long, long, long history of being a brutal, abusive monopolist. It is a convicted monopolist. And its bad conduct didn’t end with the browser wars. You remember how the lockdown turned all our homes into rent-free branch offices for our employers? Microsoft seized on that moment to offer our bosses keystroke-and-click level surveillance of our use of our own computers in our own homes, via its Office365 bossware product:

https://pluralistic.net/2020/11/25/the-peoples-amazon/#clippys-revenge

If you think a company that gave your boss a tool to spy on their employees and rank them by “productivity” as a prelude to firing them or cutting their pay is going to treat gamers or game makers well once they have “spent the competition out of business,” you’re a credulous sucker and you are gonna be so disappointed.

The enshittification play is obvious: use investor cash to make things temporarily nice for customers and suppliers, lock both of them in — in this case, it’s with a subscription-based service similar to Netflix’s — and then claw all that value back until all that’s left is a big pile of shit.

The Microsoft case is about the future. Judge Corely doesn’t take the future seriously: as she said during the trial, “All of this is for a shooter videogame.” The reason Corely greenlit this merger isn’t because it won’t be harmful — it’s because she doesn’t think those harms matter.

But it does, and not just because games are an art form that generate billions of dollars, employ a vast workforce, and bring pleasure to millions. It also matters because this is yet another one of the Reaganomic precedents that tacitly endorses monopolies as efficient forces for good. As Stoller writes, Corley’s ruling means that “deal bankers are sharpening pencils and saying ‘Great, the government lost! We can get mergers through everywhere else.’ Basically, if you like your high medical prices, you should be cheering on Microsoft’s win today.”

Ronald Reagan’s antitrust has colonized our brains so thoroughly that commentators were surprised when, immediately after the ruling, the FTC filed an appeal. Don’t they know they’ve lost? the commentators said:

https://gizmodo.com/ftc-files-appeal-of-microsoft-activision-deal-ruling-1850640159

They echoed the smug words of insufferable Activision boss Mike Ybarra: “Your tax dollars at work.”

https://twitter.com/Qwik/status/1679277251337277440

But of course Khan is appealing. The only reason that’s surprising is that Khan is working for us, the American people, not the giant corporations the FTC is supposed to be defending us from. Sure, I get that this is a major change! But she needs our backing, not our cheap cynicism.

The business lobby and their pathetic Renfields have hoarded all the nice things and they don’t want us to have any. Khan and her trustbuster colleagues want the opposite. There is no measure so small that the corporate world won’t have a conniption over it. Take click to cancel, the FTC’s perfectly reasonable proposal that if you sign up for a recurring payment subscription with a single click, you should be able to cancel it with a single click.

The tooth-gnashing and garment-rending and scenery-chewing over this is wild. America’s biggest companies have wheeled out their biggest guns, claiming that if they make it too easy to unsubscribe, they will lose money. In other words, they are currently making money not because people want their products, but because it’s too hard to stop paying for them!

https://www.theregister.com/2023/07/12/ftc_cancel_subscriptions/

We shouldn’t have to tolerate this sleaze. And if we back Khan and her team, they’ll protect us from these scams. Don’t let them convince you to give up hope. This is the start of the fight, not the end. We’re trying to reverse 40 years’ worth of Reagonmics here. It won’t happen overnight. There will be setbacks. But keep your eyes on the prize — this is the most exciting moment for countering corporate power and giving it back to the people in my lifetime. We owe it to ourselves, our kids and our planet to fight one.

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/07/14/making-good-trouble/#the-peoples-champion

[Image ID: A line drawing of pilgrims ducking a witch tied to a ducking stool. The pilgrims' clothes have been emblazoned with the logos for the WSJ, Microsoft, Activision and Blizzard. The witch's face has been replaced with that of FTC chair Lina M Khan.]

[quyotes]

U.S. leftists often think of Europe as a progressive wonderland, and in many ways it is, with its strong social benefits, national health care, free higher education, and highly developed taxation systems. But these are legacy policies from an earlier time when social democratic welfare states were built, nation by nation. The EU’s core economic policies, which all member states must obey, adhere to the neoliberal consensus, which favors unfettered free trade, laissez-faire regulation, privatization of public services, and globalized supply chains.

David Dayen, "Eurocrats on the Brink"

[arthropooda]

Looking at Jase Robertson and David Dayen, you wouldn't think the two of them have much in common. Robertson is known for his time on the A&E reality TV show Duck Dynasty. He currently hosts a show on the conservative digital outlet TheBlaze. David Dayen is a longtime progressive journalist and executive editor for The American Prospect magazine.

However, over the past few weeks, tweets from both Robertson's and Dayen's Twitter accounts have been sharing the exact same messaging.

[dontmeantobepoliticalbut]

Rep. Jim McGovern, a leading anti-hunger lawmaker in the House, expressed anger Tuesday that the debt ceiling legislation negotiated by Republicans and the Biden administration targets food benefits for older adults while doing nothing to raise taxes on the wealthy or rein in military spending.

During a House Rules Committee hearing on the bill, McGovern (D-Mass.)—the panel's top Democrat—slammed his Republican colleagues for claiming to care about the deficit but refusing to look to the Department of Defense, a paragon of wasteful spending and fraud, for savings. The White House and Republicans ultimately agreed to increase military spending for the coming fiscal year.

Meanwhile, Republicans rejected White House proposals to close tax loopholes exploited by the rich.

Instead, McGovern said Tuesday, the GOP insists Congress has to "cut funding that helps the most vulnerable in this country."

"Give me a goddamn break," he added.

McGovern voiced particular alarm over the bill's expansion of Supplemental Nutrition Assistance Program (SNAP) work requirements to include adults between the ages of 50 and 54, a Republican demand. Analysts and campaigners say the change, which would sunset in 2030, could put hundreds of thousands of older adults at risk of losing food aid.

White House officials and President Joe Biden himself have defended the new requirements by pointing to the legislation's proposed expansion of SNAP benefits for veterans, kids leaving foster care, and people experiencing housing insecurity.

Speaking to reporters on Sunday, Biden brushed aside progressives' warnings that the bill could cause some people to go hungry, calling such concerns "ridiculous."

McGovern pushed back during Tuesday's hearing, saying that "improving benefits for some does not justify putting 700,000 older adults at risk of losing critical, lifesaving food benefits."

The Congressional Budget Office (CBO) published an assessment late Tuesday that concludes the debt ceiling bill, titled the Fiscal Responsibility Act of 2023, would lead to roughly 78,000 people gaining SNAP benefits "in an average month, on net (an increase of about 0.2% in the total number of people receiving SNAP benefits)."

But observers cautioned that the CBO's estimate hinges on ensuring that vulnerable people, particularly those who are homeless, are aware they are exempt from SNAP work requirements and able to navigate the program's bureaucracy.

"This is HIGHLY theoretical," The American Prospect's David Dayen wrote of the CBO analysis. "There's no funding to identify eligible people without benefits or to help them apply or find the necessary documentation. I obviously haven't seen the model but it seems like wishful thinking to me."

"How are we exactly a) informing homeless individuals that 1 of the 2 work requirements for SNAP [has] been lifted, b) helping them collect and submit the documents that prove they meet the income test, and so on?" Dayen asked.

After a nearly six-hour hearing, the Republican-controlled House Rules Committee voted Tuesday to send the debt ceiling legislation to the full House for a vote, which could come as soon as Wednesday evening.

McGovern and every other Democrat on the panel voted no.

Ahead of Tuesday's committee vote, McGovern called the latest standoff over the debt ceiling an "all-time high in recklessness and stupidity" and said Republicans "manufactured" a "crisis that risks the full faith and credit of the United States."

"Republicans are unfit to govern," said McGovern, one of the lawmakers who—to no avail—urged Biden to use his 14th Amendment authority to unilaterally avert a debt ceiling catastrophe.

"This bill could have been a lot more awful than it is," McGovern added. "I didn't come to Congress to hurt people. And when I listen to my Republican friends, what is clear to me is that we don't share the same values."

[ebookporn]

What the Writers Won

The Guild’s agreement attempts to restore the elements of the traditional system that made entertainment writing sustainable. It mostly succeeds, with one caveat.

by David Dayen

The writers were on strike because the actual entertainment creators were poised to become the only ones to lose out in this transition. As I wrote when the strike began in May, entertainment writing over the past decade has shifted to a gig-economy model, making it next to impossible to earn a living. This was a function of streaming video popping up as a “new” distribution channel, unrestricted by the contractual agreements of broadcast and cable. The WGA went into the strike to fight that trend, which the contract they’ve won largely does. It will earn writers $233 million more per year than their previous agreement, according to Guild estimates, nearly tripling the offer that the Alliance of Motion Picture and Television Producers (AMPTP) first made. More important, it begins to add the kinds of protections and revenue-sharing that made the entertainment business so successful for creators for decades. But there is one important caveat that must be spotlighted: Whether writers will get fairly compensated depends on the quality of streaming viewership data.

READ MORE

[dreaminginthedeepsouth]

John Deering, Arkansas Democrat Gazette

* * * *

LETTERS FROM AN AMERICAN

January 25, 2023

Heather Cox Richardson

Democrats are generally staying out of the way and letting Speaker Kevin McCarthy and the House Republicans make a spectacle of themselves. In order to get the votes to become speaker, McCarthy had to give power to extremists like Marjorie Taylor Greene (R-GA), and now has openly brought her on board as a close advisor, making the extremists the face of the new MAGA Republican Party. If McCarthy appears to have abandoned principle for power by catering to the far right, Representative George Santos (R-NY) hasn’t helped: stories of his lies have mounted, and financial filings yesterday suggest quite serious financial improprieties.

Even the Senate Republicans seem to be keeping their heads down while the House Republicans perform for their base. Demanding big cuts in spending before they agree to raise the debt ceiling has put the House Republicans in a difficult spot. They have been clear that they intend to slash Social Security and Medicare, only to have Trump, who was the one who originally insisted on using the debt ceiling to get concessions out of Democrats, recognize that such cuts are enormously unpopular and say they should not touch Medicare and Social Security. Senate Republicans have said they will stay out of debt ceiling negotiations until the House Republicans come up with a viable plan.

While the House Republicans take up oxygen, the Democrats are highlighting for the American people how, over the past two years, they have carefully and methodically changed U.S. policy to stop the concentration of wealth and power in the hands of the few.

In July 2021, President Joe Biden signed an executive order to promote competition in the economy. Since the 1980s, he said, when right-wing legal theorist Robert Bork masterminded a pro-corporate legal revolution against antitrust laws, the government had stopped enforcing laws to prevent giant corporations from concentrating their power. The result had been less growth, weakened investment, fewer small businesses, less bargaining power for workers, and higher prices for consumers.

“[T]he experiment failed,” he said.

Biden vowed to change the direction of the government’s role in the economy, bringing back competition for small businesses, workers, and consumers. Very deliberately, he reclaimed the country’s long tradition of opposing economic consolidation. Calling out both presidents Roosevelt—Republican Theodore, who oversaw part of the Progressive Era, and Democrat Franklin, who oversaw the New Deal—Biden celebrated their attempt to rein in the power of big business, first by focusing on the abuses of those businesses and then by championing competition.

The administration put together a whole-of-government approach to restore competition based on the 72 separate actions outlined in Biden’s executive order. A terrific piece today by David Dayen in The American Prospect suggests that the effort has worked. Overall, Dayen concludes, the executive order of July 9, 2021, was “one of the most sweeping changes to domestic policy since FDR.”

While administrations since Reagan have judged whether consolidation is harmful solely by its effect on consumer prices, the Biden approach also factors in the welfare of workers, including their ability to negotiate higher wages. It has also taken on the sharing of medical patents that have raised costs of drugs and equipment like hearing aids by preventing others from entering the market. It has taken on large businesses’ strangling of start-up competitors simply by buying them out before they take off. And, crucially, it has claimed the ability to review previous mergers that it now deems in violation of antitrust laws, citing the 1911 breakup of Standard Oil.

Dayen notes that one of the causes for a sharp drop in mergers and acquisitions in the second half of 2022 is that government agencies are willing to enforce antitrust laws. “Just about everything on competition has been hard-fought,” he writes, “[b]ut there’s plenty of evidence of real movement.”

Not only government agencies, but also the Democratic Congress—along with some Republicans—passed a number of laws that have shifted the economic policy of the nation. Biden is fond of saying that he doesn’t believe in trickle-down economics and that he intends to build the economy from the bottom up and the middle out. New numbers suggest the policies of the past two years are doing just that.

The December jobs report from the Bureau of Labor Statistics showed that job growth continues strong. The country added 223,000 jobs in December, and the unemployment rate went down slightly to 3.5 percent. The last two years of job growth are the strongest on record, and the country has recovered all the jobs lost during the pandemic. According to the White House, 10.7 million jobs were created and a record 10.5 million small businesses’ applications were filed in the past two years.

On Monday the Wall Street Journal reported that median weekly earnings rose 7.4% last year, slightly faster than inflation. For Black Americans employed full time, the median rise was 11.3% over 2021. A median Hispanic or Latino worker’s income saw a 4.8% raise, to $837 a week. Young workers, between 16 and 24, saw their weekly income rise more than 10%. Also seeing close to a 10% weekly rise were those in the bottom tenth of wage earners, those making about $570 a week. The day after the Wall Street Journal’s roundup, Walmart, which employs 1.7 million people in the U.S., announced it would raise its minimum wage to $14 an hour, up from $12.

Democrats promised that the CHIPS and Science Act would bring “good paying” jobs to those without college degrees by investing in high-tech manufacturing. A study by the Brookings Institution out yesterday notes that the act has already attracted multibillion-dollar private investments in New York, Indiana, and Ohio and that two thirds of the jobs they will produce are accessible to those without college degrees. Those jobs do, in fact, pay better than most of those available for those without college degrees, although Brookings urged better investment in training programs to make workers ready for those jobs.

The Inflation Reduction Act gave Medicare the power to negotiate drug prices with pharmaceutical companies and capped the cost of insulin for those on Medicare at $35 a month (Republicans blocked an attempt to make that cap available for those not on Medicare). It made hearing aids available over the counter, making them dramatically cheaper, and it also expanded subsidies for the Affordable Care Act. Today the Department of Health and Human Services announced that a record number of Americans enrolled in the ACA in the last open enrollment period: 16.3 million people.

Greg Sargent of the Washington Post notes that much of the investment from these laws is going to Republican-dominated states even though their Republican lawmakers opposed the laws and voted against them. The clean energy investments of the Inflation Reduction Act are going largely to those states, bringing with them additional private investment. A solar panel factory is expanding into Greene’s own district despite her vocal opposition both to alternative energy and to the Inflation Reduction Act.

For 40 years the Republican Party offered a vision of America as a land of hyperindividualism, in which any government intervention in the economy was seen hampering the accumulation of wealth and thus as an attack on individual liberty. The government stopped working for ordinary Americans, and perhaps not surprisingly, many of them have stopped supporting it. Biden refused to engage with the Republicans on the terms of their cultural wars and has instead reclaimed the idea that government can actually work for the good of all by keeping the economic playing field level for everyone.

Biden and members of his administration are taking to the road to tout their successes to the country, especially to those places most skeptical of the government. If they can bring the Republican base around to support their economic policies, they will have realigned the nation as profoundly as did FDR and Theodore Roosevelt before them.

—

Notes:

https://www.nytimes.com/2023/01/23/us/politics/kevin-mccarthy-marjorie-taylor-greene.html

https://www.politico.com/news/2023/01/23/senate-republicans-kevin-mccarthy-debt-00079126

https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/07/09/remarks-by-president-biden-at-signing-of-an-executive-order-promoting-competition-in-the-american-economy/

https://www.washingtonpost.com/archive/lifestyle/1987/07/19/bork-and-the-pro-business-bias/f98206ec-5d73-4e1d-b1fa-066eab789284/

https://www.brookings.edu/research/with-high-tech-manufacturing-plants-promising-good-jobs-in-ohio-workforce-developers-race-to-get-ready/

https://www.wsj.com/articles/bidens-green-subsidies-are-attracting-billions-of-dollars-to-red-states-11674488426

https://www.bls.gov/news.release/pdf/empsit.pdf

https://www.whitehouse.gov/briefing-room/press-briefings/2023/01/24/press-briefing-by-press-secretary-karine-jean-pierre-12/

https://www.cnn.com/2023/01/24/business/walmart-raising-wages/index.html

https://www.hhs.gov/about/news/2023/01/25/biden-harris-administration-announces-record-breaking-16-3-million-people-signed-up-health-care-coverage-aca-marketplaces-during-2022-2023-open-enrollment-season.html

https://www.wsj.com/articles/biggest-pay-raises-went-to-black-workers-young-people-and-low-wage-earners-11674425793

https://prospect.org/economy/2023-01-25-pitched-battle-corporate-power/

https://www.washingtonpost.com/opinions/2023/01/25/biden-place-based-industrial-policy-muro/

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[from comments]

TCinLA

Writes Thats Another Fine Mess

TPM is now reporting that House Republicans want to pass a series of "clean" debt limit suspension bills that brings the debt default crisis to coincide with the new fiscal year, to create a mega crisis of default/government shutdown, and that they will then be putting the most egregious of their spending bills up for votes over the summer before the mega crisis arrives. Interestingly, this will benefit Democrats if they do this, since the Democrats will be able to point to all the egregious cuts the crazies want. Also, enough Republicans have now stated they do not intend to touch Social Security, Medicare, Obamacare or Defense that McCarthy does not have a majority to push those cuts, leaving them very few places they would have to cut heavily to achieve their goals.

In other words, the wheels are coming off the clown car already. Who could have expected that? I ask you!

[mostlysignssomeportents]

Antitrust is a labor issue

I'm touring my new, nationally bestselling novel The Bezzle! Catch me SATURDAY (Apr 27) in MARIN COUNTY, then Winnipeg (May 2), Calgary (May 3), Vancouver (May 4), and beyond!

This is huge: yesterday, the FTC finalized a rule banning noncompete agreements for every American worker. That means that the person working the register at a Wendy's can switch to the fry-trap at McD's for an extra $0.25/hour, without their boss suing them:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes

The median worker laboring under a noncompete is a fast-food worker making close to minimum wage. You know who doesn't have to worry about noncompetes? High tech workers in Silicon Valley, because California already banned noncompetes, as did Colorado, Illinois, Maine, Maryland, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Virginia and Washington.

The fact that the country's largest economies, encompassing the most "knowledge-intensive" industries, could operate without shitty bosses being able to shackle their best workers to their stupid workplaces for years after those workers told them to shove it shows you what a goddamned lie noncompetes are based on. The idea that companies can't raise capital or thrive if their know-how can walk out the door, secreted away in the skulls of their ungrateful workers, is bullshit:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

Remember when OpenAI's board briefly fired founder Sam Altman and Microsoft offered to hire him and 700 of his techies? If "noncompetes block investments" was true, you'd think they'd have a hard time raising money, but no, they're still pulling in billions in investor capital (primarily from Microsoft itself!). This is likewise true of Anthropic, the company's major rival, which was founded by (wait for it), two former OpenAI employees.

Indeed, Silicon Valley couldn't have come into existence without California's ban on noncompetes – the first silicon company, Shockley Semiconductors, was founded by a malignant, delusional eugenicist who also couldn't manage a lemonade stand. His eight most senior employees (the "Traitorous Eight") quit his shitty company to found Fairchild Semiconductor, a rather successful chip shop – but not nearly so successful as the company that two of Fairchild's top employees founded after they quit: Intel:

https://pluralistic.net/2021/10/24/the-traitorous-eight-and-the-battle-of-germanium-valley/

Likewise a lie: the tale that noncompetes raise wages. This theory – beloved of people whose skulls are so filled with Efficient Market Hypothesis Brain-Worms that they've got worms dangling out of their nostrils and eye-sockets – holds that the right to sign a noncompete is an asset that workers can trade to their employers in exchange for better pay. This is absolutely true, provided you ignore reality.

Remember: the median noncompete-bound worker is a fast food employee making near minimum wage. The major application of noncompetes is preventing that worker from getting a raise from a rival fast-food franchisee. Those workers are losing wages due to noncompetes. Meanwhile, the highest paid workers in the country are all clustered in a a couple of cities in northern California, pulling down sky-high salaries in a state where noncompetes have been illegal since the gold rush.

If a capitalist wants to retain their workers, they can compete. Offer your workers get better treatment and better wages. That's how capitalism's alchemy is supposed to work: competition transmogrifies the base metal of a capitalist's greed into the noble gold of public benefit by making success contingent on offering better products to your customers than your rivals – and better jobs to your workers than those rivals are willing to pay. However, capitalists hate capitalism:

https://pluralistic.net/2024/04/18/in-extremis-veritas/#the-winnah

Capitalists hate capitalism so much that they're suing the FTC, in MAGA's beloved Fifth Circuit, before a Trump-appointed judge. The case was brought by Trump's financial advisors, Ryan LLC, who are using it to drum up business from corporations that hate Biden's new taxes on the wealthy and stepped up IRS enforcement on rich tax-cheats.

Will they win? It's hard to say. Despite what you may have heard, the case against the FTC order is very weak, as Matt Stoller explains here:

https://www.thebignewsletter.com/p/ftc-enrages-corporate-america-by

The FTC's statutory authority to block noncompetes comes from Section 5 of the FTC Act, which bans "unfair methods of competition" (hard to imagine a less fair method than indenturing your workers). Section 6(g) of the Act lets the FTC make rules to enforce Section 5's ban on unfairness. Both are good law – 6(g) has been used many times (26 times in the five years from 1968-73 alone!).

The DC Circuit court upheld the FTC's right to "promulgate rules defining the meaning of the statutory standards of the illegality the Commission is empowered to prevent" in 1973, and in 1974, Congress changed the FTC Act, but left this rulemaking power intact.

The lawyer suing the FTC – Anton Scalia's larvum, a pismire named Eugene Scalia – has some wild theories as to why none of this matters. He says that because the law hasn't been enforced since the ancient days of the (checks notes) 1970s, it no longer applies. He says that the mountain of precedent supporting the FTC's authority "hasn't aged well." He says that other antitrust statutes don't work the same as the FTC Act. Finally, he says that this rule is a big economic move and that it should be up to Congress to make it.

Stoller makes short work of these arguments. The thing that tells you whether a law is good is its text and precedent, "not whether a lawyer thinks a precedent is old and bad." Likewise, the fact that other antitrust laws is irrelevant "because, well, they are other antitrust laws, not this antitrust law." And as to whether this is Congress's job because it's economically significant, "so what?" Congress gave the FTC this power.

Now, none of this matters if the Supreme Court strikes down the rule, and what's more, if they do, they might also neuter the FTC's rulemaking power in the bargain. But again: so what? How is it better for the FTC to do nothing, and preserve a power that it never uses, than it is for the Commission to free the 35-40 million American workers whose bosses get to use the US court system to force them to do a job they hate?

The FTC's rule doesn't just ban noncompetes – it also bans TRAPs ("training repayment agreement provisions"), which require employees to pay their bosses thousands of dollars if they quit, get laid off, or are fired:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

The FTC's job is to protect Americans from businesses that cheat. This is them, doing their job. If the Supreme Court strikes this down, it further delegitimizes the court, and spells out exactly who the GOP works for.

This is part of the long history of antitrust and labor. From its earliest days, antitrust law was "aimed at dollars, not men" – in other words, antitrust law was always designed to smash corporate power in order to protect workers. But over and over again, the courts refused to believe that Congress truly wanted American workers to get legal protection from the wealthy predators who had fastened their mouth-parts on those workers' throats. So over and over – and over and over – Congress passed new antitrust laws that clarified the purpose of antitrust, using words so small that even federal judges could understand them:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

After decades of comatose inaction, Biden's FTC has restored its role as a protector of labor, explicitly tackling competition through a worker protection lens. This week, the Commission blocked the merger of Capri Holdings and Tapestry Inc, a pair of giant conglomerates that have, between them, bought up nearly every "affordable luxury" brand (Versace, Jimmy Choo, Michael Kors, Kate Spade, Coach, Stuart Weitzman, etc).

You may not care about "affordable luxury" handbags, but you should care about the basis on which the FTC blocked this merger. As David Dayen explains for The American Prospect: 33,000 workers employed by these two companies would lose the wage-competition that drives them to pay skilled sales-clerks more to cross the mall floor and switch stores:

https://prospect.org/economy/2024-04-24-challenge-fashion-merger-new-antitrust-philosophy/

In other words, the FTC is blocking a $8.5b merger that would turn an oligopoly into a monopoly explicitly to protect workers from the power of bosses to suppress their wages. What's more, the vote was unanimous, include the Commission's freshly appointed (and frankly, pretty terrible) Republican commissioners:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri

A lot of people are (understandably) worried that if Biden doesn't survive the coming election that the raft of excellent rules enacted by his agencies will die along with his presidency. Here we have evidence that the Biden administration's anti-corporate agenda has become institutionalized, acquiring a bipartisan durability.

And while there hasn't been a lot of press about that anti-corporate agenda, it's pretty goddamned huge. Back in 2021, Tim Wu (then working in the White wrote an executive order on competition that identified 72 actions the agencies could take to blunt the power of corporations to harm everyday Americans:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

Biden's agency heads took that plan and ran with it, demonstrating the revolutionary power of technical administrative competence and proving that being good at your job is praxis:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

In just the past week, there's been a storm of astoundingly good new rules finalized by the agencies:

A minimum staffing ratio for nursing homes;

The founding of the American Climate Corps;

A guarantee of overtime benefits;

A ban on financial advisors cheating retirement savers;

Medical privacy rules that protect out-of-state abortions;

A ban on junk fees in mortgage servicing;

Conservation for 13m Arctic acres in Alaska;

Classifying "forever chemicals" as hazardous substances;

A requirement for federal agencies to buy sustainable products;

Closing the gun-show loophole.

That's just a partial list, and it's only Thursday.

Why the rush? As Gerard Edic writes for The American Prospect, finalizing these rules now protects them from the Congressional Review Act, a gimmick created by Newt Gingrich in 1996 that lets the next Senate wipe out administrative rules created in the months before a federal election:

https://prospect.org/politics/2024-04-23-biden-administration-regulations-congressional-review-act/

In other words, this is more dazzling administrative competence from the technically brilliant agencies that have labored quietly and effectively since 2020. Even laggards like Pete Buttigieg have gotten in on the act, despite a very poor showing in the early years of the Biden administration:

https://pluralistic.net/2023/02/11/dinah-wont-you-blow/#ecp

Despite those unpromising beginnings, the DOT has gotten onboard the trains it regulates, and passed a great rule that forces airlines to refund your money if they charge you for services they don't deliver:

https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/24/fact-sheet-biden-harris-administration-announces-rules-to-deliver-automatic-refunds-and-protect-consumers-from-surprise-junk-fees-in-air-travel/

The rule also bans junk fees and forces airlines to compensate you for late flights, finally giving American travelers the same rights their European cousins have enjoyed for two decades.

It's the latest in a string of muscular actions taken by the DOT, a period that coincides with the transfer of Jen Howard from her role as chief of staff to FTC chair Lina Khan to a new gig as the DOT's chief of competition enforcement:

https://prospect.org/infrastructure/transportation/2024-04-25-transportation-departments-new-path/

Under Howard's stewardship, the DOT blocked the merger of Spirit and Jetblue, and presided over the lowest flight cancellation rate in more than decade:

https://www.transportation.gov/briefing-room/2023-numbers-more-flights-fewer-cancellations-more-consumer-protections

All that, along with a suite of protections for fliers, mark a huge turning point in the US aviation industry's long and worsening abusive relationship with the American public. There's more in the offing, too including a ban on charging families extra for adjacent seats, rules to make flying with wheelchairs easier, and a ban on airlines selling passenger's private information to data brokers.

There's plenty going on in the world – and in the Biden administration – that you have every right to be furious and/or depressed about. But these expert agencies, staffed by experts, have brought on a tsunami of rules that will make every working American better off in a myriad of ways. Those material improvements in our lives will, in turn, free us up to fight the bigger, existential fights for a livable planet, free from genocide.

It may not be a good time to be alive, but it's a much better time than it was just last week.

And it's only Thursday.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/04/25/capri-v-tapestry/#aiming-at-dollars-not-men

[quyotes]

When MoviePass offers unlimited screenings for ten bucks a month, when Uber gets an $82 billion valuation for a low-margin taxi business it has never made a dime on, when WeWork implodes after the slightest scrutiny into its numbers, that’s the bullshit economy at work. We have seen the farcical bullshit of Juicero and the consequential bullshit of Theranos. We see this all over our economy: useless services, narrow supply chains, magnified fiascos. As long as confidence men lie to the right people, they can gain entry and take on enormous responsibility, until it all falls apart. We live in a country where you can spout New Age consultant speak, charm a large foreign investor, and make off to your guitar-shaped living room with over a billion dollars, paid effectively to go away. That’s WeWork guru Adam Neumann’s story, and increasingly it’s our story.

David Dayen, “Welcome to the Bullshit Economy“

[whitesinhistory]

Part 1:

We talk with David Dayen, the Executive Editor of The American Prospect, about the Senate race in New Jersey. The Governor's wife, Murphy, has dropped out of the race. This indicates that this will not be a "machine" election, and changes are being made around the "county line", which has been in place in the state for decades. An interesting discussion about this type of electioneering in New Jersey.

Part 2: We talk with Mareen Tkaacik, an investigative reporter at The American Prospect, about bankruptcy court corruption in Texas, which affects the country as a whole. She shares details of a recent case that highlights the 'strategic bankruptcy' used by large companies, and how this hurts investors. Corrupt judges, bankruptcy lawyers, sex, poorly written laws, etc. all figure in this story.

[whee38]

Real Estate Fees Crushed By Anti-Trust | David Dayen | TMR

[gnatswatting]

• [T]he greatest threat to democracy as it relates to the media is not the spread of disinformation, but the spread of paywalls. The information that an informed citizenry needs to make choices about who governs them and what is happening underneath the surface has been privatized, gated, and kept from those with an inability to pay. —David Dayen

The American Prospect The American Prospect (at Internet Archive)  

[plitnick]

Biden’s Surrender on the Debt Ceiling Will Have Serious Repercussions

The always worthwhile David Dayen has an excellent summary and breakdown of the debt ceiling deal at The American Prospect. If anyone needed a better demonstration of just how weak and ineffective Joe Biden is, the debt ceiling fiasco has certainly provided it. As Dayen correctly notes, “The second that Joe Biden agreed to negotiate with House Republicans on the debt ceiling, the results were…

[dserwer1]

Stevenson's army, May 24

– Politico notes that the GOP House members haven’t negotiated deals before. – Politico also cites criticisms of media coverage of the topic: What officials have done is begun circulating pieces calling out the fourth estate. Those include items from New York Magazine’s JONATHAN CHAIT and the American Prospect’s RYAN COOPER and DAVID DAYEN criticizing the mainstream press for normalizing GOP…