Assistant Attorney General Jonathan Kanter Delivers Remarks for the Fordham Competition Law Institute’s 51st Annual Conference on International Antitrust Law and Policy

Source: United States Department of Justice Criminal Division

Remarks as Prepared for Delivery

Thank you for that introduction, James. And thank you to the organizers and to everyone around the world who has come here to Fordham to learn from one another and exchange ideas. This has always been a great event, and I am sure this year will be no different.

We meet today at a truly historic moment in competition policy. We have gone from years of debating how to evolve competition enforcement to a moment when the new era is emerging before us. In cases throughout the country and the world, we are seeing the reinvigoration and modernization of antitrust and competition law enforcement emerge before our very eyes. Many in this room are supporting that process, whether as advocates before the agencies and courts on each side, or as experts providing their uniquely important perspective.

You can feel the energy of this new era of competition enforcement in the air. Increasingly, I hear messages of hope from the people I meet with around the country. Suddenly, Americans have a sense that the creeping erosion of their economic power can actually be slowed, stopped and maybe even reversed. People beam with optimism about the prospect of economic opportunity, freedom and self-determination.

Our work at the Justice Department is leading the way. Just last month, the Antitrust Division won its first major monopolization action in decades and only the second in nearly 50 years. This win is one of more than 170 significant actions the Antitrust Division has taken on behalf of the American people in just the last two and a half years. In that time, we have seen more than 20 mergers abandoned in response to division concerns, and we are seeing fewer problematic deals come in front of us to begin with. Our criminal program has obtained more than 60 criminal convictions and resolutions, using proactive detection methods like wiretaps and innovative remedies like divestitures to send a clear message that antitrust violations are a serious crime.

Our work has both driven and built upon a wave of historic court decisions protecting competition in airlines, book publishing, fast food work and many more industries in both public and private cases.[1] These cases rely on the application of timeless antitrust precedents to protect competition in modern markets. And our work comes against the backdrop of unprecedented success by competition enforcement authorities throughout the world.

Although some opponents of antitrust enforcement had expressed the misguided idea that the federal courts would elevate narrow policy objectives over statutory text and binding precedent to defend a hands-off approach to antitrust, the rule of law has proven resilient. Enforcers understand that we can succeed by presenting courts rigorous cases that reflect a sound application of modern facts to settled law. The record of recent decisions in the U.S., from Chase and Duke on refusal to deal, to Google on monopolization, to JetBlue and Penguin on the incipiency standard, among so many others, demonstrates that the Sherman and Clayton Acts are not just alive and well but thriving.

And the incredible series of decisions, merger abandonments and criminal resolutions in the last few years are just the beginning. In the United States, federal and state enforcers have many important cases under way, seeking to protect and restore competition in so many industries that impact the daily lives of the American people. By way of example, we have historic actions involving concert tickets, groceries, smartphones, agriculture and even the cost of rent. Together with a revitalized merger enforcement program backed by the 2023 Merger Guidelines, these actions will lower prices and ensure greater freedom of opportunity for the American people.

That is just in the United States. Enforcers around the world have also engaged in this transformative moment. I have seen firsthand what the international enforcement community can do together to level up their expertise and engage with today’s challenges by bringing together time-honored principles and laws with state-of-the-art tools and expertise. We have benefitted enormously from incredible communication and engagement across the international community as we enforce our respective laws and protect our sovereign interests for the benefit of our respective countries.

Events like this conference are so important because the advances in thought and understanding that underlie today’s successes have at their heart the engagement and deployment of expertise. Conferences like this, and international institutions like the International Competition Network (ICN) and Organization for Economic Cooperation and Development (OECD), were created to support the debate and dissemination of competition expertise to help enforcers do their jobs better at home. Expertise plays a critical role in antitrust policy.

And then in the crucible of litigation, those same experts can help guide the litigants and courts to better understand market realities and reach sound conclusions.

But we have a crisis of expertise in our antitrust and competition community, and it is growing. That is what I want to discuss today.

Among enforcement authorities, I have heard whispers of this problem for years. Recently, the volume and frequency of these concerns have grown to the point that I think it is time we talk openly, publicly, and respectfully about how to address issues that have become too significant for our community to ignore any longer.

Let me start by asking you what these three stories have in common:

• Story one — an international enforcer attended an event thinking they were receiving training from experts associated with the U.S. government. Later, they were shocked to learn the training was funded by companies the enforcer was scrutinizing, with topics and content geared toward encouraging non-intervention.
• Story two — an academic associated with an institute funded by several large technology firms signed an amicus brief opposing a country’s enforcement action. Later, without disclosing that fact, they gave a purportedly expert presentation at the OECD attacking that same enforcement action and advocating the OECD take a position favoring the institute’s funders.
• Story three — a Court of Appeals cited an economic study written by a professor paid by the defendants in support of the defendants’ litigation position. But the paper had no disclosure and so the court had no way to know it was citing advocacy, not merely academic expertise. That appellate decision has become binding precedent in some courts that impacts scores of unrelated cases.

I should mention, these are all true stories. What do they have in common?

You may be thinking these stories involve the same academics, or maybe the same small group of companies, but they do not. These are just a few of countless examples of a pervasive breakdown in the distinction between expertise and advocacy in competition policy.

All over the world, money earmarked specifically to discourage antitrust and competition law enforcement is finding its way into the expert community upon which we all depend.

Economics teaches that incentives matter. And the inevitable incentive of that flow of money is to distort the academic dialogue and reshape expertise into advocacy.

We see this playing out from legal academia, to economics, to public policy. We see it in academic workshops, treatises and wonky empirical reports. In competition policy today, the expertise-buying game is ascendant. Conflicts of interest and capture have become so rampant and commonplace that it is increasingly rare to encounter a truly neutral academic expert.

Let me say this clearly — this will not end well. Already we see a seeping distrust of expertise by the courts and by law enforcers.

Unless we find a new way forward, we may see the critical role of expertise in competition policy dwindle away. No one should welcome that outcome.

I do not stand before you with definitive answers or solutions. But I know that we need to start having the conversation in earnest. With my time today, I will share my views on three related topics.

First, the important role of expertise as distinct from advocacy. Second, how corporate money is threatening expertise in competition policy as it once did in tobacco regulation. Third, why I believe international antitrust and competition law enforcers and policy makers are uniquely equipped to lead the way toward developing solutions to address this crisis.

1. We need expertise in addition to advocacy.

First point: we need expertise in addition to, and as distinct from, advocacy.

Competition enforcers rely on expertise in nearly every part of our work, and for good reason. Expertise is a critical element of understanding market realities and of assessing and evolving the legal landscape. At the Antitrust Division, we rely heavily on our Expert Analysis Group (EAG) — dozens of PhD economists, statisticians, data scientists, financial analysts and technologists whose work is vital to our mission. I am so proud of the critical work of EAG. They remain the gold standard.

Increasingly, EAG is relying on varied forms of expertise, from behavioral economists to algorithmic experts, in order to understand the market realities in our cases. And we routinely pull in outside experts in our cases, as part of policy and fact-gathering efforts and in our international dialogues.

These experts, in turn, rely on academic communities like the legal and economics academies for the building blocks of their analyses. But if a paper was shadow-funded or influenced by corporate money, it can pass that influence and whatever flaws or biases it introduced into the papers that build on it. This insidious ripple effect is difficult — if not nearly impossible — to detect.

That is a problem because we trust expertise for the deep-rooted tradition of academic independence on which it draws. The academy has a reputation of integrity and independence forged over generations. It is fundamental to the expert enterprise.

Over a century ago, the American Association of University Professors incorporated academic freedom directly into its founding principles.[2] They declared that the goal of a university is to “advance knowledge by the unrestricted research and unfettered discussion of impartial investigators.”

One of the chief purposes of a university, the association explained, was to develop impartial expertise for the benefit of government decisionmakers. They recognized that, “to be of use to the legislator or the administrator, [an academic] must enjoy their complete confidence in the disinterestedness of [his or her] conclusions.”

The Supreme Court has similarly described the special and unique independence of academic inquiry. As Chief Justice Warren wrote in 1957, “[t]o impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”[3]

I agree with that view. The world is a murky enough place. We believe in an independent academic dialogue as a critical element of seeking and finding truth. And as markets evolve, we need that in order to get competition policy right.

The kind of independent expertise that the academy was created to promote, and that academic tenure and free speech rights still protect, is distinct from advocacy.

We also need advocacy, of course. I love the crucible of debate and have made my own career as an advocate. I want to be extremely clear: I do not think we should do anything to chill honest and open debate. Advocacy is the cornerstone of our system. I have no quarrel with advocates taking positions, whether it is in a court of law or public opinion. I have no quarrel with individuals or organizations such as issue-based think tanks and trade associations openly and honestly debating or defending positions.

Today, the concerns I am raising relate to the more insidious influence that flows from the blurring of lines between advocacy and expertise. Put simply: we need both because advocacy and expertise serve different purposes.

When experts engage and opine, they help create the building blocks of further development in their fields in a way that advocates simply cannot. We need the building blocks of expertise to be solid. Trusted experts, whether in courtrooms or in academic journals, are critical to the expansion of human knowledge.

For generations, universities have resided as neutral centerpieces of expertise and thought leadership in the antitrust and competition policy community. Academic institutions have functioned as trusted and integral incubators for emergent ideas and technical refinement. But that trust is eroding among enforcement authorities. I am here as a call to action so that we can restore that trust and reinvigorate independent academic expertise to coexist alongside the important role that advocates play on all sides of our issues.

2. The threat that money earmarked for influence poses to expertise.

My second point is that money earmarked for influences threatens expertise.

It is precisely because disinterested expertise is so valuable that the crisis we face is so concerning. Money earmarked by corporations and foundations to discourage antitrust enforcement is flowing by the millions into academia. It funds conferences, centers, papers and everything in between. It provides professors with connections, influence, opportunities and consulting dollars.

And one thing is for sure: the companies cutting all those checks are not doing so in order to encourage the “unfettered discussion of impartial investigators” on which the American Association of University Professors was chartered.

No. Checks are being cut, university centers and institutes are being established and conferences being funded specifically to influence the evolution of expert thought in competition policy. All that money is turning our experts into advocates. Sometimes knowingly and directly. Sometimes indirectly by affecting incentives and capturing institutions. Not only does this undermine the trust in those academics and institutions, but it unfairly calls into question and erodes confidence in the academics who choose not to associate or affiliate with advocates.

This playbook is not new. We saw it play out most tragically with Big Tobacco’s successful campaign to twist scientific research about the harms caused by its products.

The story is well-known:[4] In the 1950s, the tobacco industry was faced with emerging science on the negative health effects of cigarette smoking. The industry recognized that it could not solve the problem through advertising, which would come off as transparently self-interested. Instead, it decided to seize control of the scientific process from within. Tobacco companies poured millions into scientific research, identifying, supporting, and amplifying skeptics of the emerging health research — with the goal of attracting more researchers to their view.

The strategy was massively successful, suppressing for decades the scientific consensus that smoking causes lung cancer, and leading to countless deaths in the process. It infected the legal system as well, with Big Tobacco’s hand-picked experts — the products of their influence operation — testifying repeatedly that there was no conclusive link between smoking and health.

Influence campaigns like this are pernicious precisely because they are subtle. Many of the academics involved may consider themselves sufficiently distant from the funding that the money makes no difference.

But research shows us that corporate influence can impact a researcher in a wide range of different ways — whether consciously or unconsciously.[5] We see reports of academics who receive funding from corporations feeling pressure to self-censor, or corporations lobbying university administrations behind the scenes.[6] Or, just as we saw with tobacco, corporate money impacts what work gets promoted and amplified, with the inevitable impact this promotion has on future research.[7]

Fordham antitrust law professor Mark Patterson has written on this exact topic, noting that “conflicts may be reflected in subtle research choices whose implications will be very difficult for legal fact finders to assess.”[8] As Upton Sinclair said, “[i]t is difficult to get a man to understand something, when his salary depends on his not understanding it.”[9]

As enforcers, we are learning more how the expert influence game in antitrust is being played. One tactic involves the use of academic research centers, which allow corporate funders to evade disclosure requirements. For example, disclosure policies for academic journals and other institutions often do not require disclosure of an institution’s funding sources.[10]

This is not to say that some progress has not been made. Some leading economics journals now require disclosure statements and that authors provide data and code for replication purposes.[11] But this practice is new and not widespread in the profession, and even these new policies do not clearly require disclosure of an academic research center’s corporate donors and often fail to account for the invasive and insidious capture that occurs over years or decades of influence and funding.

This means that if a company seeking to buy influence channels money through a separate center, endowment or the like, they can often avoid impacted professors and trainings having to report the company’s involvement.

The problem with all of this is that it leads to advocacy being deceptively presented as expertise. I admire and appreciate advocacy — just because someone is paid to argue a position does not mean they are wrong. But we put advocacy through a different kind of crucible of debate and dissection than we do independent expertise.

When expertise loses its independence, when it becomes just more argument to be dissected, we lose something profoundly important. The reputation of our academic institutions — built over generations, will quickly erode. The building blocks of the academic dialogue may prove too weak a foundation even for the remaining disinterested academics. The ability to grow our knowledge iteratively through dialogue and publication will crumble away.

I fear that as the line blurs between expertise and advocacy, we risk losing expertise altogether. But that is precisely where we are heading as a community.

3. How the international antitrust community can help.

Third, I want to talk about why the international antitrust community is uniquely positioned to help address this growing problem.

International forums like this one, and like OECD and ICN, not only bring together the stewards and leaders of our profession, but they engage the most directly with our expert community.

I hope that today can mark the beginning of an open and candid discussion. As we have in many other areas over the past few years, we can learn from each other and build a consensus around how to address the problem of paid influence in our expert community while respecting the rights of all involved. We can engage candidly with the expert community to better understand and define effective rules, disclosures and prohibitions against conflicts of interest. We can understand the different challenges that agencies face in engaging with experts and how to mitigate those challenges.

Perhaps most importantly, we can find ways to create a model for the world to follow. This is delicate. We cannot and should not chill free speech. But I am confident there are meaningful steps that we can take as a community to better distinguish and disclose the lines between advocacy and expertise so that our community can benefit from both.

 Ultimately, this will make us all more effective both as an international antitrust community and as enforcers of our respective national laws. I look forward to that conversation.

Before I leave the podium, I would like to acknowledge the exceptional career of Executive Vice President (EVP) Margrethe Vestager. She has truly been a force, and an inspiration for competition leaders all around the world like myself. EVP Vestager, on behalf of the Antitrust Division, my deepest thanks for your friendship and for the great relationship you have helped foster between our agencies. Your courage and leadership have been an inspiration, and your indelible presence will be felt and admired for generations to come.

Thank you.