Stacy Mitchell writes that the Neo-Brandeisian movement is as strong as ever. Despite its champions, Federal Trade Commission Chair Lina Khan and Assistant Attorney General Jonathan Kanter, exiting their posts, grassroots momentum is only growing. Today, it’s in state legislatures and attorneys general offices where the movement is now advancing—and where future antitrust policy is being shaped.
This article is part of a series that explores where the Anti-Monopoly or Neo-Brandeisian movement goes next: What are the academic questions and problems scholars affiliated with the movement have struggled to answer and need to focus on? What policies have the movement promoted for which the case still needs to be made? What policies has it neglected so far that it should champion? How does it continue as a political movement? You can read the other contributions here as they are published.
We encourage our readers to submit their own opinions on the future of the Neo-Brandeisian movement. Pitches can be sent to Promarket@chicagobooth.edu.
For decades, Rhode Island lawmakers gave little thought to antitrust policy. “We have not been paying attention,” Lt. Governor Sabina Matos told me in a private interview. “We didn’t track how monopoly was going to affect communities.”
Today, rising grocery prices and the spread of food deserts are among the consequences of that inattention, Matos contended. Much of the city of Woonsocket qualifies as a food desert. Independent grocers who want to open stores there face two barriers that make it all but impossible to succeed. One is that they cannot access competitive wholesale prices from suppliers because of the federal government’s failure to enforce the Robinson-Patman Act, which forbids suppliers of commodities to discriminate on price when selling to buyers. The second is that the powerful supermarket chains that abandoned the city have attached restrictive covenants to their former locations, ensuring those buildings can never be occupied by grocery stores.
“They’ve been creating this monopoly right in front of our eyes,” Matos said of the big grocery chains.
Now Matos, working with members of the legislature, is advancing a package of bills aimed at curbing market power in grocery retailing. One would create a state-level Robinson-Patman Act to ban price discrimination in the industry. Another would prohibit restrictive covenants. A third seeks to protect against surge pricing at the grocery store by regulating electronic shelf tags. A fourth would require supermarkets to make any coupons or discounts they offer available in-store to all customers—effectively outlawing surveillance-based pricing.
Matos and her allies in the legislature have been steadily gaining support. Lawmakers had already begun addressing competition issues in sectors like health care and utilities, and that groundwork has helped extend the conversation to grocery markets. Still, the workings of antitrust—and how it applies to the grocery industry—are new to many state legislators. “They are starting to see the connection now,” Matos says, referring to the link between market power and the hardships facing their constituents.
Matos is one of a growing number of local and state policymakers taking up the cause of fighting concentrated market power. Lawmakers across the country are pushing bills to strengthen state antitrust laws, including measures that would effectively sidestep current court precedents by establishing new legal standards, making it possible to pursue violations like predatory pricing that have been largely out of reach for decades. At the same time, more state attorneys general are becoming assertive trustbusters—not only bringing cases, but engaging the public on the issue and expanding political support for anti-monopoly action.
Taken together, this ground-level activity is the clearest sign yet that the movement revived by a small band of antimonopoly advocates nearly a decade ago, and brought into the center of the Biden administration’s economic agenda, is here to stay. Antitrust is undergoing a durable revival: this once obscure and closed-off area of policy has returned to the public discourse and gained grassroots relevancy. Many Americans across the political spectrum now realize that there’s a body of law designed to directly address a problem they encounter in their daily lives—one that had long seemed entrenched and unchangeable: the coercive economic and political power of large corporations. Former Federal Trade Commission Chair Lina Khan’s role in bringing this body of law into public view so electrified people that it’s made her something of a celebrity.
States have real power to respond. One of the “happy incidents” of federalism, to borrow a phrase from Supreme Court Justice Louis Brandeis, is that states are empowered to enforce the federal antitrust laws and create their own. They can develop antimonopoly policy to meet the moment—regardless of whether the Trump administration manages to carry out a coherent federal antitrust agenda or simply caves to its corporate benefactors.
While the spotlight during the Biden years often fell on Khan and her counterpart at the Justice Department, Assistant Attorney General Jonathan Kanter, state enforcers were frequently out in front. The attorneys general of Washington, D.C., and California were the first to bring cases targeting practices that later became key elements of the FTC’s monopolization lawsuit against Amazon (which was joined by 17 other states). Two state attorneys general—Colorado’s Phil Weiser and Washington’s Bob Ferguson—challenged the proposed Kroger-Albertsons merger independently of the federal case to block the deal. The resulting trials drew expansive local media coverage. A particularly striking moment in the Colorado case came when a Kroger executive testified that the company systematically raised prices in “no-comp stores”: locations without competitors nearby. For the public, the trials offered a riveting glimpse into how antitrust law plays out in practice, and why it matters in their lives.
Today, more attorneys general are making the fight against monopolies a central part of their agenda. Attorney General Kris Mayes of Arizona is among those leading the charge. “These are issues that are impacting everybody, regardless of their political stripes, and that’s why we’re being so aggressive about it,” she said in January at an event hosted by my organization, the Institute for Local Self-Reliance. States are increasingly shaping the direction of antitrust enforcement, often by bringing first-of-their-kind cases. Mayes and D.C. Attorney General Brian L. Schwalb were the first public enforcers to target algorithmic pricing, in which a software program designed to optimize prices enables sellers using the program to engage in tacit collusion and set anticompetitive prices. Months before the DOJ filed its case against property management software company RealPage last year, Schwalb and Mayes had already brought lawsuits against the company and major landlords in their respective jurisdictions, alleging a conspiracy to inflate rents. Mayes contends that this “rental monopoly” inflated rents by 12 percent or more in Phoenix and Tucson, as detailed in the complaint.
Taking action against monopolies is popular: polls show deep and persistent alarm about corporate power, with strikingly similar levels of concern expressed by Democrats and Republicans alike. But even more important for the staying power of this issue is that antitrust reform now has a base—a set of mobilized supporters who have a deep stake in change. In recent years, local grocers, pharmacists, labor unions, farmers, and others have driven a surge in antitrust advocacy.
In Minnesota, nurses and other healthcare workers campaigned for the passage of legislation two years ago that grants the state attorney general and the Department of Health significant new authority to block health care mergers. This year, lawmakers are considering a measure to address price and access discrimination in the grocery industry—an effort backed by independent grocers. At a hearing in late March, Jessica Rohloff, manager of a small grocery cooperative in New London (population 1,300), told lawmakers that the town had several grocery stores when she was growing up, but then went 15 years without one. The New London Food Co-Op opened last year, but faces a steep challenge. The store pays higher wholesale prices than its larger competitors, even those served by the same delivery trucks. “We are not asking for favors,” she said. “We are asking for fairness.”
The devastating impact of food deserts in both urban and rural areas has led to bipartisan support for the measure. Its co-sponsors in the Minnesota House of Representatives are Representative Emma Greenman, a Democrat from Minneapolis, and Representative Isaac Schultz, a Republican from a rural district. “I believe in competition,” Schultz said at the hearing, noting that there is little of it left in his part of the state.
A trailblazing bill in New York, the 21st Century Antitrust Act, would introduce an abuse of dominance standard for single-firm conduct, including in labor markets. A departure from existing doctrine, this framework would compel courts to revisit how they assess anticompetitive behavior and make it simpler for enforcers to stop dominant corporations from engaging in practices like predatory pricing and tying. It would also allow the state attorney general to issue rules limiting “unfair methods of competition.” Sponsored by Senate President Michael Gianaris—who became an anti-monopoly champion after helping defeat Amazon’s bid for billions in subsidies to open a second headquarters in Queens—the bill has passed the Senate each of the last four years, with support from a coalition of labor, small business, and community groups. It is slowly gaining traction in the Assembly, and this year secured a prominent co-sponsor: Assembly Majority Leader Crystal D. Peoples-Stokes.
Similar proposals are gaining ground in other states. In January, the staff of the California Law Revision Commission recommended that the state adopt a single-firm conduct provision with an abuse of dominance standard, along with stronger criteria for merger reviews. In Massachusetts, Senate President Pro Tempore Will Brownsberger has introduced a similar proposal, the “Small Business and Worker Protection Act,” which has drawn support from both small business and labor groups.
States are limiting corporate power in other ways, too. Many have imposed limits on pharmacy benefit managers, adopted right-to-repair laws, and taken action on non-competes and junk fees. Some are now weighing measures to block investors from buying up single-family homes or rolling up medical practices. California is weighing bills that would broadly limit surveillance pricing.
All of this suggests that a fundamental shift has taken place: antitrust is no longer the exclusive domain of federal agencies or elite legal circles. It is becoming a live issue in statehouses, courtrooms, and communities across the country.
Author Disclosure: The author works for the Institute for Local Self-Reliance, which receives funding from foundations such as the Wellspring Philanthropic Fund, Wallace Global Fund, Amalgamated Charitable Foundation, Methodist Healthcare Ministries, and Tides Foundation.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
