The Next Era Of Antitrust — ft. DOJ’s Jonathan Kanter

25:50These new picks are probably in the same camp. And that's for the benefit of the public, basically. What is the other side of it? What could he have gone with otherwise? Let me just, if you don't mind me picking at that a little bit, I think I am not super pro-regulation. So my belief is that I believe I'm a capitalist. I believe in markets. I believe that ultimately free markets and competitive markets can yield better outcomes for society and that are much better alternative to invasive regulation. And so sometimes regulation rules are necessary, but I would much rather have markets sorted out through competition in the first instance.

26:27That's ultimately the theory that I had and animated our approach to antitrust enforcement. And I think it actually reflects the theory that animates the approach to antitrust enforcement in the current administration, but we'll have to wait and see. The alternative to that is a neoliberal view, one that really dominated in the era of Reagan and George W. Bush, the Clinton administration to some degree part of the Obama administration, which is ultimately that mergers are efficient, monopolies are efficient, and ultimately we should just regulate the big companies rather than stopping them from getting big or maintaining their bigness.

27:02And I think that view is pretty much out of fashion right now in Washington. So if you had to outline the top priorities for this administration when it comes to antitrust, maybe one or two things they definitely want to accomplish when you look at what they've done so far, what do you think those priorities would be? Taking them at their own word, I think those priorities are big tech, workers, and what remains to be seen, but I think what should be among the highest priorities is health care. Interesting. Why do you think that healthcare is such an important priority right now? The healthcare markets today remind me a lot of big tech in 2016 or 2017, where we've seen this sort of gradual, if not alarming, march toward concentration and convergence around a handful of conglomerate platforms that have outsized control in the healthcare system.

27:55and there is now a greater appreciation that those integrated companies are essentially emerging as platforms unto themselves and control our healthcare system. And so whether you're a doctor or a nurse, a pharmacist, another insurance company, you kind of have to plug into those healthcare platforms and they're exerting a massive amount of control and it constitutes a massive spend for our economy. And so I think the degree of concern, the degree of concentration, the degree of control and the impact on our economy are all the ingredients that usually point to greater antitrust enforcement and greater interest by business in seeing antitrust enforcement.

28:37One of the things I noticed when I was at the government was that there are lots of businesses who want to invest in fixing our health care system. They want to invest in improving the ability to get access to pharmaceuticals for less money. The insurance system is completely bloated and bureaucratic, not at the government level, but at the private sector level. And there's a great interest of business to disrupt that, to compete, but they can't break in in part due to the moats that surround these large healthcare platforms. I think one of the other big issues that a lot of people are talking about is just the power of lobbying.

29:11That's certainly important in the cultural conversation around healthcare, the idea that politicians are basically being paid off, or at least, you know, these healthcare companies are investing millions, maybe billions into lobbying such that these regulations can work in their favor. You served in government for three or four years. You can now speak freely, I assume. How bad is lobbying in government? Is it something that you experienced yourself? It's everywhere, right? But so you have to, when you take a job like the one I took, you have to decide you don't give a shit. And ultimately, I'm a lawyer and I have clients and I viewed my client as the public.

29:51And I was going to jump in front of a train if I had to in order to protect my client, which was the public. That's my philosophy toward representing companies in the legal area. And so that's what we did. And so we, if companies came in and made sensible arguments and presented facts, we would listen. But the idea of playing politics, going to the media, going after us personally, going to Congress and trying to interfere with legitimate antitrust enforcement, we tune that out. But I would say that there's a real risk that that kind of lobbying and PR campaigns and public affair campaigns can take hold.

30:28And it's really dangerous when it does. Companies pour a ton of money into this. I'll also say that, you know, the bigger they get, the more weight they can throw on Washington. And one of the things that I think people inside Washington understand, sometimes it's not appreciated outside, is that it's really hard to do something. It's really easy to get people to do nothing. right? And so most of the money that gets invested is not into solving the problem and fixing the problem. Most of the lobbying money goes into throwing sand in the gears against any effort to actually make things better. And so you have to have a tremendous amount of will.

31:05You have to have a tremendous amount of courage and perseverance in order to actually make a difference. That's something that we did, but it's really freaking hard. The whole lobbying industry feels so obscure and strange. In a lot of ways, I just don't really understand how it actually works. So just at a very basic level, what does lobbying actually look like? Is it a meeting with someone and they present all the arguments as to why something should or should not be done? Why is it so compelling and why does it push politicians so far in either direction? So there are a number of different dimensions that go into this.

31:43First, there's kind of the to rate traditional lobbying, which is I'm going to pour a ton of money into a campaign, right? And people who are running for office, especially if it's every two years, need a constant influx of cash, right? And so they're trying to figure out how do they come up with a policy agenda that allows them to stay in office. And it's very easy to rationalize that, well, if I compromise and get enough donors, then I can stay in office and do other good things, right? But that can easily tilt into a very dangerous place. That's one. But it's more than just that. Most of the money that gets reported as lobbying is really just for that going up to Capitol Hill and meeting with a senator or congressman.

32:19That's not where most of the money goes, though. Most of the money goes into PR campaigns. It goes into funding university professors who write favorable articles that then they can cite to in their PR campaigns. It's planning stories and getting people to talk on podcasts and this insidious layer of operatives who you don't realize are speaking on behalf of big business, but are there to seed ideas and promote their clients' interests, often not disclosing who they work for, who paid for their stuff. I can't tell you how many times I heard the same arguments from these grassroots public advocacy organizations that are just front groups for the same handful of big companies.

33:08They're everywhere. They're pouring a ton of money into it, and it far outstrips the amount that they're disclosing in their lobbying forms. I mean, it sounds like, you know, you are fighting against that to the best of your ability. It's possible now that the DOJ will have its funding cut with DOJ. I mean, what do you think of that? Do you think that DOJ will target the DOJ? And if so, what would that mean for antitrust? It would be devastating. Let me just give you a little bit of context, right? So when I ran the antitrust division at the Department of Justice, we were in charge of antitrust enforcement.

33:44We were about 800 people. That's about 250 fewer people than we had in 1979. We were smaller than 1979. But I will also tell you this in terms of efficiency. We ran at zero cost to taxpayers. And each year during my tenure, we had a budget surplus. And we relied on fees, merger fees, to fund the entire antitrust division, even though that's not what we did. So taxpayers got a great deal. And during that time, we brought cases against Google. We brought cases against Apple, Ticketmaster, American Airlines, Visa, UnitedHealthcare, RealPage and the big landlords, the big meatpackers we touched through a case involving a company called Agristats.

34:26We brought some of the most effective, significant antitrust cases. We did it at zero cost to the taxpayers, and we did it at a budget surplus, while at the same time investing in things like AI and other tools to make ourselves more efficient. If there's a real interest in making government more efficient, then there's a real conversation to have. But I don't believe that's what's happening. I think what's happening right now is attempt to dismantle our government infrastructure because they don't want it there. Are there any sectors of the government that you believe actually could benefit from budget cuts or from at least being inspected by some form of government efficiency oversight?

35:01I think they can all benefit from being more efficient. So I think the amount of process and sometimes norms that have good intentions often create debilitating bureaucracy. And so I will tell you, sure. Right. And in fact, I was an agent of change. And I came in and despite those headwinds, we were able to move things forward, change policies, change the composition of our workforce, hire more experts. Invest in more technology. There are plenty of things you can do to make it more efficient. I will say this, though. If you wanted to address efficiency in government spending, employees, federal employees, are the last place you'd probably start.

35:43They're a sliver of the federal budget. Just from an employment perspective, I think four-fifths of government employees reside outside the D.C. area. One-third are veterans. And that's before you factor in all the money that goes into funding employers like state universities and hospitals, particularly in the Midwest and the South, that are themselves the largest employers in their states. The federal government is the largest employer in the U.S. So one, firing people wholesale indiscriminately without regard for whether they are talented or whether they are lower wage than someone who's been there a long time is not the way to improve efficiency and lower cost.

36:22You wanted a lower cost, the place you'd start would be government contractors. Massive amounts of money, fraud, waste, and abuse is often in private government contractors who are overcharging the government. You talk about Medicare, for example. There have been studies by the Wall Street Journal and reports about massive billions upon billions of dollars in overcharging due to things called upcoding, which is when an insurance company goes in, they take someone on Medicare, make them look really sick, and then they get to bill for all that, but then they don't necessarily reimburse for all that, and they keep the money in between.

37:01These are the kinds of areas you would focus if you're actually trying to make government less expensive and more efficient. There might be things you can do in terms of personnel and in terms of process, but that's not where you'd start if you were actually trying to address the problem. We'll be right back.

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39:37We're back with Prof G Markets. Let's talk about some of the biggest antitrust cases that you brought and how you think they may play out in the next few years. So let's start with Google. You brought one of the biggest cases against Google for maintaining an illegal monopoly in the search market. The judge ruled in your favor. But of course, Google is now working on appealing that decision. Give us the state of play on Google. Where does that case stand today? And how do you expect that lawsuit will play out? So there are two cases. against Google. One is the search case, which we won, and now is in what they call the remedies phase.

40:15So Google was found to be an illegal monopolist that illegally maintained its monopoly position in search, in part through spending tens of billions of dollars a year contracting with companies like Apple and others to say, you won't work with anyone else, or there'll be limits on your ability to work with other folks. That case is really all about not just those contracts, but it's about the network effect. It's about the moat that protects Google's search business. We are at a moment in time, we're at a key inflection point where AI and other kinds of technologies may not be perfect replacements for search yet, but they are in shooting distance.

40:53They have the opportunity with the right nurturing to start creeping into those markets and then eventually hopefully take on some of those advertising markets, the search advertising markets. The remedies phase really, the current proposal on the table from DOJ, which I was a part of, is focused on making sure that those markets have the opportunity to develop and the inflection point, the disruption that can come from things like AI, have the opportunity to achieve their full potential. There will be a trial in a few months to address the remedy, and we'll see how that goes. But it's a very important part of this.

41:29Second case involves what people call ad tech. That's the stuff that you don't realize is being bought and sold through Google. But when you go to any website or often an app and you see an ad, that is going through a stock-like exchange or commodities-like exchange that is run by Google. Google owns the exchange. They buy on the exchange and they sell on the exchange and they run the tools that run the infrastructure for publishers, news publishers and others who want to show ads. And that case is full of allegations that Google abused that position, manipulated the market and squeezed out competition.

42:06We finished the trial there and we're waiting for a decision. One of the suggestions from the DOJ, on the first case at least, was a breakup, breaking Google up into several, or I guess two different companies. Specifically, it's the search product. Why do you think breaking up Google is the answer? And I'll just plug in a little bit of my opinion here. Why wouldn't simply making Google stop paying those contracts to Apple and other companies to be the default search engine? Why wouldn't that cut it? Why couldn't that be the remedy for this situation? So those are backward-looking remedies, which are important, right?

42:46And so cutting off the mechanism that a company used to dominate a market is really critical. But, you know, if you focus on competition and if you focus on where the next competitive threat is going to come from, you have to look at the ingredients that go into creating competition. And in something like search, it's data. It's an index. It's the ability to monetize that through a sufficient base of advertisers, right? That's the kind of, those are the kinds of market dynamics that create the important infusion of capital. There are conflicts of interest when you're on all sides of a market, right?

43:20And so if you want to create competition, you have to look at, okay, what are the ingredients that a new competitor needs? Also, to what extent if conduct in an antitrust case has occurred over a year or two, it's much easier to fix, right? Because their company's not entrenched. But if the conduct occurred, for example, over a 10-year period, which is what happened in the search case, then it's far more entrenched. The network effects, the scale effects, the learning by doing and the feedback loops are far more significant today than they would have been a decade ago. And so if you want to create openings in competition, you have to think about a suite of remedies that are going to create the opportunities to compete and start addressing the scale advantages that were obtained through illegal behavior.

44:05You also launched an investigation into NVIDIA last year. And I'd like to get your views on NVIDIA from an antitrust perspective more generally. But there was also just some confusion over that investigation because all these news outlets said that the DOJ had subpoenaed them, NVIDIA. And then NVIDIA said, no, we never received a subpoena. So I'd love to just get clarification from you. What happened there? Did NVIDIA get a subpoena? Was that falsely reported on? Why was there so much confusion with that? Yeah, there are still some things. I'm free to speak about a lot of things now, but there are things that are confidential that I can't talk about that occur.

44:42But what I can say broadly is that AI is a really important focus. And when you think about the areas of competition or where competition can come into place in AI, you have to think both about the hardware infrastructure and you have to think about how that technology is deployed. And we were looking at all of it, and I think my recommendation is that enforcers should continue looking at all of it. The way to focus in a market like this is look for the choke points, right, and then look for the exclusion. So where are the choke points in AI? Well, let's start with the hardware. They're all pretty obvious, right?

45:16It's the equipment that's used to make it. It's ASML, right, in the Netherlands. It's the fabs, the highly specialized fabs, which are in Taiwan, TSMC. And it's the chip design. Now, it's easy to say, OK, well, chip designs are just science and somebody else can come up with a better design and great. But it's not just the chip design that can create lock-ins and modes. It's the software that goes into operating those chips. And so one of the things that people talk about, for example, in the context of NVIDIA, is its CUDA, which is its software layer that people who want to interoperate with NVIDIA chips must use.

45:57And the ability, for example, to have a data center that might have workloads running on different kinds of chips and mixing and matching. And so to the extent that we're going to see competition emerge in this space, we're going to need to address some of those choke points, or potentially at least. One is by creating more manufacturing and process tool capability. The other is by making it easier to mix and match chips in a data center and elsewhere in order to diversify your dependence on one particular supplier. I'd also like to get your views on AI in the startup world. This has been probably one of my biggest concerns when it comes to AI from an antitrust perspective.

46:37I just see all of these big tech companies investing in all of these AI startups. And it feels like they're all kind of investing in each other, collaborating with each other. You've got Microsoft, which was on the board of OpenAI for a while, but they also invested in Mistral and Inflection, which compete with OpenAI. You've got Reid Hoffman, who was on the board of Microsoft. And then he's also the co-founder of Inflection. And then all the employees at Inflection suddenly go over to Microsoft. I just see what's happening in AI, and it feels like it's all kind of puppeteered by the big dogs in big tech.

47:11And it feels like they're sort of playing pretend competition, but ultimately they're all collaborating with each other, has been my sense of the situation. What is your read on the AI startup scene, and do you think there is legitimate concern for antitrust enforcement, as I have on this subject? This is a significant question and concern that has been raised quite a bit. It's actually something we raised in our proposed remedy in the Google case, which is that if there are query-based AI solutions, generative AI solutions that have the potential to compete against search, Google would need to divest its investments, existing investments, and refrain from making additional investments.

47:49These are the kinds of things that seem self-evident in the context of antitrust. We have an opportunity finally after all these years to introduce new actors, new players, create new opportunities for companies to go public and create tremendous amount of value. And whether it's through acquisition in form or acquisition in substance, if these massive players are essentially pulling the puppet strings of smaller emerging rivals and disruptive players, then it creates the same kind of antitrust concern and will lead to the same small number of firms controlling our economy. And that's bad for so many different reasons, not the least of which is already our indices are too dependent on a small number of players so that it creates resiliency risk.

48:34And one or two of those players get hurt in the stock market and our home markets crumble. We need to be more diversified. We need newer voices alongside the bigger companies. We need smaller players nipping at their heels in order to make them more competitive. And we need more companies going public. I think that's been a real deficiency is good companies going public at entering. And frankly, some of these companies might be well-suited to unlock value by divesting assets that might be worth more as independent companies than they are as part of a conglomerate. After DeepSeek happened, I feel like there was an opportunity for the technologists to push back on that argument and say, hey, you know, AI is happening really fast.

49:18China's getting really good at AI. Look at this thing they've just created with supposedly less money and less compute. We need to increase or at least we need to pull back our regulation. We need to make sure that big tech can build bigger AI, more AI. You know, we don't want to be too harsh from a regulatory perspective. I think that's an argument that is beginning to emerge. I just would love to get what would be your response to those concerns. I think that's a distraction. So first, you know, there's DeepSeek. I think we all need to learn a little bit more. If you listen to some, it sounds like they used, you know, 20 bucks and an Olive Garden gift certificate to create this major competitor.

50:02I think, you know, people who understand the industry know that's not true, right? The models were trained using something called distillation, probably, which is essentially when you copy someone else's stuff. And a lot of the investment, the innovation is in the reasoning part, which is a little less compute intensive. And so that's not to say there weren't really exciting innovations that come from DC. There were. But I think what happened behind it, whether they were circumventing export controls in order to get chips is something I don't know. But I think those are the kinds of questions that people need to ask.

50:31It is antithetical to our system to say that we need a small number of really big players in order to compete against China. The way to compete against China is not to be more like China. We are at our best when we have a free, open, fair market economy that allows a thousand flowers to bloom and to innovate. And if anything, we become too dependent on a small number of players, many of whom are not. I mean, these are great companies, but they're global companies. They're not the U.S. government. Many of them have huge alliances with China and care deeply about China, both for manufacturing and for growth.

51:08And so we are at our best when we are promoting the development and growth of more companies, when we are forcing more innovation. I would much rather see a world where we have numerous chip suppliers, where we have more onshore manufacturing capability, where we have big players and small players and everybody in between innovating on top of the various different models and structures. Yes, some of this is very capital intensive, and some of these markets are going to result in a handful of small big players. Hopefully not. But now our question is, are we going to let those big players now vertically integrate and conglomerate so they can take over every market that relies on that platform?

51:45These are the kinds of lessons we learned from the internet age. We did nothing for 15 years with respect to big tech. And I think we got to a place where everyone in Washington, or at least most people in Washington, realized that antitrust enforcement was too lax. And rather than having invasive regulation and rules, we're better off creating a market where we can have a significant amount of competition and entry. And I think that is far more important. The other thing I will say is in terms of regulation, I sometimes roll my eyes at this because here we are in 2025 and we still don't have any basic privacy regulations.

52:24Zero. Think about all the data that these companies collect. There's not a single comprehensive privacy bill that's ever made it out of Congress, right? This is the most unregulated industry relative to its size and its significance that the country has ever seen. So this idea that there's been too much regulation is not something I quite understand. That being said, I think the, you know, so I push back against this concept that we need a small number of really big players and then we regulate them through government control. That to me sounds like a planned economy. It sounds more like China.

52:59I would much rather have a free and open market that keeps these big firms from dominating, allow smaller or medium-sized player to get the scale they need in order to compete effectively. As you look at the state of competition across the U.S., and I think maybe let's put big tech aside, because I think it's clear what's at stake there. Which sectors would you say are most in need of antitrust enforcement? In other words, where in the economy, aside from tech, is monopolization most problematic or most egregious? Number one on my list is healthcare. Another area is defense. We had massive consolidation starting in the 90s among our prime contractors.

53:41And the government spends a lot of money without enough competition. And too many contracts are sole source or, if you're lucky, dual source. And there needs to be more manufacturing, more supply, more prime contractors. I think there's a lot we can do to help save money there. Another is agriculture. talk to farmers. They are the lifeblood of our economy and our society and our rural communities. They're being squeezed, whether it's seeds, meat packers, tractors. I mean, it's unbelievable. A farmer can't fix their own tractor. He or she has to go to a specialized retailer, buy expensive parts that might be hours away.

54:23They can't fix their own stuff in order to operate on their own farms because of right to repair restrictions. These kinds of things are debilitating for farmers around the country. And if you go to rural communities, they will tell you that they are being squeezed and they need more help. Everything you've said so far feels so bipartisan. Like, I can't figure out how you could really take issue with any of your positions that that have been explained on this podcast. But I'm going to try. And, or at least, you know, I want to point out some things that would maybe be said on the Republican side of things.

55:00Not always the Republican side. That's the part I would just, so this issue creates strange bedfellows, right? And so figuring out who's favor and who's opposed is not as simple as looking at red or blue. These issues transcend politics. And I think they go to different philosophies on do we want a controlled economy with a small number of players and more regulation, or we'd want a decentralized economy with lots of players and perhaps lighter regulation only when necessary in order to promote safety and security. I love that distinction. Who, in your view, is on the side of the former? Who, in your view, in America today, or which kinds of people want more monopolization in America?

55:42The monopolies. So this is actually really the kind of, you know, interesting little bit from my experience. For every case we brought, for every monopoly we went against, there probably were 20 or 30 companies that were asking us to bring the case. Not because they wanted a handout. They weren't going to make any money from our litigation. They just wanted the opportunity to compete. So the dirty little secret is that business actually likes what we do. They're the ones encouraging us to bring cases because they want access to markets. They want supply chains that are affordable. They want greater supply of key inputs, right?

56:20This is something that's quite popular in business. The monopolies, though, hate it, right? Because the one or two companies in each market that control it don't like it when they're sued. I will say this. They might not like it, but it's better than massive industry-wide regulation. It's more surgical. It's more of a scalpel. Two is they invest tremendous amount of money to throw sand in the gears. They'll, you know, go after you personally, and they'll send people to your house, and they'll, you know, get op-eds written in the newspaper, and they'll go pay university professors to say that you're destroying innovation and this, that, and the other thing.

56:58You just have to rub, you know, brush that off. But, you know, most of the cases that we brought, the only people defending the monopolists were the monopolists or people paid by the monopolists. So it's basically in line with what we're seeing in government right now, which is, you know, the tech oligarchy is emerging, where we have a few monopolists who are running around trying to convince everyone that we should maintain these monopolies. And now they're getting cozy with the president. What is your view on these people's relationship with Donald Trump? And does it concern you? Yeah, it concerns me.

57:33I mean, I've seen this movie before and it doesn't end well, right? Like, you know, the role of Google in the Obama administration was well-documented in terms of their role, not just in getting the campaign and the data, but in terms of the infiltration in government. We tried to squeeze that out and we tried to say we're going to put people in people like me and others who don't care and who are going to focus on representing the public first, not the big companies and the donors. And I worry that if we go right back to that situation, it's going to be a problem. The other is you can't dismiss self-dealing, right?

58:08And so when companies are advising a government and have something to gain from it, it creates distrust in government. I'll also say, and this to me was a concern, is think about the inauguration, the day of the inauguration. It was held indoors because supposedly it was too cold to be outside. So in the Capitol Rotunda, nice and warm and cozy, you had the CEOs of Google and Apple and Amazon and Meta and others, while the rank-and-file grassroots supporters were outside freezing their tuchuses off, right? So, like, to me, that's a metaphor for the situation. And I think if the public wants government to work for it and not just big companies, then it needs to say so.

58:57Well, Jonathan, this has been exceptional, and I really appreciate your time. I have one final question for you. If you had to give a piece of advice to young people who are listening to this program who are interested in government, who are interested in service, and they're trying to figure out how to provide value for our country, what would your advice be? Have a North Star. So I kept a compass on my desk because it was a reminder that every day, ultimately, my North Star was making sure we had a competitive economy that worked for the broader public. I think developing your North Star early on in your career, understanding what values you hold dear, and then working through public service or organizations around public service in order to further those values, in order to make people's lives better.

59:46That's what my advice, it's really easy in Washington, it's really easy in this public policy conversation to get caught up in attention and caught up in ideas and catchphrases. Have a North Star, start by helping people, figure out what you believe in and then work backwards from that. Jonathan Cantor is the former assistant attorney general for the antitrust division of the U.S. Department of Justice under the Biden administration. During his tenure, he brought major antitrust lawsuits against Google, Apple, Live Nation, and Ticketmaster, UnitedHealth, RealPage, American Airlines, the meatpacking industry, and many others.

1:00:21He also previously served as an attorney at the FTC, and he founded his own law firm, Cantor Law Group. Jonathan, this was so great. I really appreciate your time. And I will just say, it's very nice to have you out of office, because now we get to hear about how things actually work, which is a great benefit. So, you know, there's a silver lining there. All right. Well, it's good to look under the hood every once in a while and let's go Mets. Thanks, Jonathan. Take care. This episode was produced by Claire Miller and engineered by Benjamin Spencer. Our associate producer is Alison Weiss. Mia Silverio is our research lead.

1:00:57Isabella Kinsel is our research associate. Drew Burrows is our technical director. And Catherine Dillon is our executive producer. Thank you for listening to Profity Markets from the Vox Media Podcast Network. If you liked what you heard, give us a follow and join us for a fresh take on markets on Monday.

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