What Does a Biden Presidency Mean for the Google Antitrust Case?

In October of 2020, the Department of Justice filed an antitrust suit against Google. At the time, this was heralded as a potentially historic case. It was the government’s most aggressive move since the Microsoft case in 2001 and was seen as potentially consequential as the AT&T case of the mid-1980s that led to the breakup of that company. With Trump’s ongoing and increasing animosity towards Big Tech, a suit like this had been expected. Although filed on narrow grounds – the case only alleged antitrust violations related to its search engine – the suit closely paralleled the legal arguments of the successful Microsoft case. Similar to Microsoft, Google is accused of forcing its search engine to be the default on devices and of tying its search engine to Android and Chrome. This simplified focus increased the likelihood of success and demonstrated the administration’s seriousness.

Now, with a transfer of power, we are left to speculate about the potential effects of a Biden administration on this case. Unfortunately, antitrust issues were not a focus of the election campaign, so commentators have been left to try reading the tea leaves based on limited information. Biden has three options: he can aggressively pursue the lawsuit, possibly adding additional claims; he can try to quietly settle or dismiss the suit; or he can remain neutral, allowing the career personnel at the Department of Justice to continue with little or no outside influence. Proponents of each of these three paths can find some support, depending upon which of the three Biden’s they choose to focus on.

Biden on the campaign trail

Biden never directly addressed the issue, but some of those associated with his campaign made the case for an administration that would aggressively pursue antitrust issues. Matt Hill, a campaign spokesman, made the strongest statement on the issue, saying that technology companies had “abused their power,…misled the American people, damaged our democracy, and evaded any form of responsibility” adding further, that “ends with a President Biden.” Similarly, Ben Harris, Biden’s chief economist during his vice presidency, said Biden was “deeply concerned” about antitrust issues in the tech industry and was committed to working with Congress, states, and antitrust advocates on these issues. These statements, however, may have been nothing more than smart politics. There is strong bipartisan support for antitrust enforcement against Big Tech right now. A recent Data for Progress poll showed that around two-thirds of both Democrat and Republican voters support breaking up the largest tech companies. With the lawsuit, Trump was taking a strong stand on this issue, forcing Biden to do the same.

Biden as a member of the Obama administration

The underlying message of the Biden campaign was that his presidency would be a continuation of the Obama years. Unfortunately, the Obama administration was infamous for both its surprisingly lax enforcement of antitrust and its close relationship with Big Tech. During Obama’s presidency, the DOJ and FTC brought no major monopolization cases and only investigated around three percent of all merger transactions. They also did not challenge a single merger of any of the largest tech companies. This close relationship was particularly pronounced with Google. In 2016, the Intercept did an in-depth article showing what they termed the “vertical integration” between government and Google during Obama’s presidency. They tracked nearly 250 people that had gone back-and-forth between the administration and the tech company.

Although Google developed its relationship throughout both terms, it really ramped up its efforts at the beginning of Obama’s second term. It was then that the Federal Trade Commission released its damning staff report, since leaked, that recommended filing antitrust charges against the company. The report stated that Google had caused “real harm to consumers and to innovation in the online search and advertising markets.” The FTC, of course, did nothing, as the Obama appointees heading the agency voted unanimously to ignore the findings and not file charges.

Biden appears to be continuing this cozy relationship. He raised over $25 million from tech companies for his campaign. Regarding Google, former CEO Eric Schmidt, who was instrumental in developing the vertical integration with the Obama White House, has been just as diligent in doing so with the new administration. He hosted fundraisers for Biden and also personally donated over $6 million to the campaign. As a result, Schmidt is rumored to be Biden’s pick to head a new tech task force in his administration.

Biden since the election

Biden has announced Merrick Garland as his nominee for U.S. Attorney General. This selection suggested that Biden might take the middle path, allowing this case to continue as filed, but without adding anything stronger or making antitrust enforcement, in general, a focus of his administration. Garland had been Obama’s choice to fill Justice Scalia’s vacant seat on the Supreme Court. He was a strategic choice because he was seen as a politically moderate, pro-business jurist that would be more appealing to Republicans in the U.S. Senate. His specific background in antitrust, though limited, seems to reflect this overall reputation as a measured jurist, generally business-friendly, but without a strong political or ideological bent.

In contrast to his AG choice, Biden’s actions in choosing the head of the Antitrust Division at the DOJ have been more mixed. Shortly after the election, Google led a group of tech companies that were pushing Karen Dunn to be the Assistant Attorney General for Antitrust. Dunn, who was a former associate White House counsel for Obama, has an extensive history of representing the largest tech companies in antitrust cases. This would have been a clear signal that the Obama era was going to continue. Encouragingly, the transition team did not hesitate in rejecting Dunn.

This encouragement did not last long, however, as Renata Hesse, who maxed out on donations to the Biden campaign, is currently the top candidate for the assistant AG position. She worked in the Justice Department under both Bush (2002-2006) and Obama (2012-2016) and between her stints in government she spent five years at Wilson, Sonsini, Goodrich & Rosati, Google’s main law firm. More recently, she has been in the Antitrust Group at Sullivan & Cromwell. There she has garnered extensive experience representing antitrust defendants, including representing Amazon in its acquisition of Whole Foods. Probably most concerning, though, was her statements at a Federal Trade Commission field hearing in which she stated: “The reason why people use Google Search, generally, is because they like it better,” then asking “are we gonna punish someone because they did a great job?” Hesse is seen by many as an even more Big Tech-friendly choice.

If Biden rejected Dunn only to ultimately appoint Hesse, many in the antitrust community will be having Biden remorse.