Protect Americans from Big Business

Biden’s overlooked campaign to protect Americans from Big Business

Many Americans are focused on inflation, but from Big Tech to junk fees, Biden is advancing a pro-consumer agenda.

by Nicole Narea

President Joe Biden has embraced a decidedly pro-consumer agenda at a time when many Americans aren’t feeling confident about the state of the economy — even though it may do little to assure voters whose primary economic concern is higher prices. 

Through his executive authority, Biden has taken steps to combat “junk fees” — hidden fees that make everything from airline bookings to concert tickets more expensive than their sticker price, but also just feel like shady corporate attempts to get the better of consumers. He has also required companies to provide more transparency in their pricing. 

His administration has also tackled monopolies like it’s the Roosevelt era, filing a flurry of sweeping lawsuits against major companies, including four Big Tech companies, on the grounds that they are harming competition in their industries and, therefore, American consumers. 

Though those lawsuits have yet to be decided, they have already put companies on watch and, if successful, could create new legal precedents that would protect consumers well after Biden leaves office. That’s important because any actions he takes through executive authority could be easily overturned if former President Donald Trump wins the election.

Biden’s not done yet, either: In the next few months, the administration is also eyeing policies to protect consumers purchase advance access to their wages or who have been forced to pay certain fees when taking out mortgages, as well as pro-consumer legislation in Congress.

In both its use of executive action and litigation, the Biden administration has been “more aggressive on antitrust than any previous administration in at least the last 50 to 75 years,” said Andre Delattre, who directs national campaign programs at the Public Interest Network, a public interest advocacy group. 

Whether he will be remembered for that depends on the success of those lawsuits, but at the very least, he can now campaign on trying to hold big corporations to account. Whether that resonates with voters — particularly young ones, who are concerned primarily about prices — is again another matter.

What Biden has done on junk fees and improving price transparency

Biden has targeted junk fees and price transparency across industries in measures that attract rare bipartisan support and have become a key part of his pitch to swing voters. 

The Federal Trade Commission (FTC) has proposed a still-pending broad regulation to combat junk fees overall, but other federal agencies have already introduced or adopted regulations aimed at industry-specific junk fees. To name a few: 

• The Consumer Financial Protection Bureau (CFPB) proposed a rule to curb overdraft fees incurred when consumers withdraw more than the available funds in their bank account — a move that might save customers about $3.5 billion a year overall. It would limit those fees to only what’s necessary to cover the institutions’ costs, which is somewhere between $3 and $14, instead of the $35 some banks charged before the rule was announced. This is a “huge way in which the administration has shown up in a way that affects everyday consumers,” said Mitria Wilson-Spotser, the federal policy director at the Center for Responsible Lending. Though it’s not in effect yet, some banks have already changed their policies in anticipation that it will be implemented.
• The CFPB cracked down on loan servicers who were illegally charging homeowners junk fees such as property inspection fees when they were struggling to pay their mortgages.
• The Federal Communications Commission (FCC) implemented a rule that requires satellite and cable providers to more clearly disclose the “all-in” cost of their packages in their promotional materials and on subscribers’ bills. 

Some of Biden’s junk fee policies have come under legal scrutiny. A federal judge temporarily blocked a Biden administration rule that would limit fees on late credit card payments to $8 per month, which the CFPB said would cut costs for Americans by $10 billion a year. Bank and credit card company lobbyists, supported by some Republican members of Congress, had argued that the rule was unconstitutional.

Airlines also recently sued the Biden administration over a new final rule that requires airlines and ticket agents to disclose upfront any fees associated with booking a plane ticket. 

Biden’s aggressive antitrust strategy

The Biden administration has taken some big swings at companies it accuses of operating illegal monopolies that have thwarted competition and harmed consumers. The idea is that, by breaking up these monopolies or holding them to account for their anti-competitive practices, consumers will enjoy lower prices as well as more (and potentially better) options. 

“Antitrust has changed and is essentially back in an FDR style,” Tim Wu, a professor at Columbia Law School and architect of the Biden administration’s antitrust policies, previously told Vox. “I think a signature of the FDR-style antitrust was that they didn’t play around the edges. If they thought an industry was anti-competitive, they sued everybody, including the largest monopolists, for stuff that was core to their business.” 

The Biden administration has sued four major tech companies:

• It has accused Apple of maintaining a monopoly on the US market for smartphones, of which the iPhone makes up 65 percent. The complaint alleges that Apple has deliberately thwarted apps, products, and services that would make it easier for users to switch from the iPhone to other smartphones and lower costs for consumers and developers. 
• It has twice sued Google, now known as Alphabet: first, accusing it of illegally thwarting competition when it paid billions to companies including Apple to become the default search browser on their products in a suit in which a judgment is imminent; second, over the company’s ads business, which it claims has achieved dominance through anti-competitive mergers and by strong-arming publishers and advertisers.
• It has accused Meta of acquiring Instagram and WhatsApp to stymie competition and prevent consumers from having access to other social media platforms. A federal judge initially dismissed the lawsuit, ruling that the government had failed to define the market in which Meta has held a monopoly, before allowing the administration to refile.
• It has accused Amazon of preventing its sellers from offering lower prices on other online platforms and prioritizing its products over third-party products, artificially keeping prices high and quality down.

These lawsuits were all brought as monopolization cases under section 2 of the Sherman Act, which protects against unfair competition. Herbert Hovenkamp, a professor of antitrust law at the University of Pennsylvania Carey Law School, said they probably won’t succeed for that reason.

“I think the big actions against the major tech platforms are ill-advised,” he said. “The agencies brought them exclusively as monopolization claims, and I think that increases the likelihood that they're not going to win at least some of them.” It may prove difficult to make a case that these Big Tech companies — which are highly innovative, are top recipients of patents, don’t seem to be colluding with each other, and are competing fiercely in fields such as AI — are monopolies in the legal sense of the word, he said. 

He added the government would have had a better chance of success if it had instead targeted contracts that these companies have signed that could constitute unlawful “restraint of trade” stifling future competition under section 1 of the Sherman Act. 

At the same time, Stacey Dogan, a professor of antitrust law at Boston University School of Law, said the lawsuits are a “healthy development,” even if some of them fail. 

“Many of the claims are targeting behavior that on its face appears to reduce consumer choice and harm competition,” she said. “Sometimes advances in technology improve outcomes for consumers, and sometimes they don’t. Sometimes, the effects are mixed. Existing antitrust law struggles with those cases, and some of these lawsuits will give courts an opportunity to develop that law.”

That may take a long time. Except for the Google Search lawsuit, judgments in these cases aren’t expected for years, with likely lengthy appeals if the government prevails. Given that the FTC is made up of five members who each serve a seven-year term, they will remain in their positions and continue to pursue these lawsuits even if Trump is elected.

Aside from the Big Tech cases, the Biden administration has also notably filed a lawsuit seeking to break up Ticketmaster’s parent company Live Nation, accusing it of operating an illegal monopoly through anti-competitive behavior that has harmed everyone from consumers to venues to artists. The lawsuit claims that Live Nation controls about 60 percent of the market for concert promotions and manages more than 400 artists. Through Ticketmaster, it also controls about 70 percent of the market for ticketing and live events and more than 80 percent of major concert primary ticketing.

The Biden administration has also been active on antitrust outside the courts. Notably, it unveiled stricter guidelines under which the FTC will not approve a merger that may stifle competition, hurt wages and working conditions, or increase consumer prices.

The Biden administration is contemplating further consumer protection policies

The Biden administration is planning further pro-consumer actions in the coming months:

• The CFPB has announced that it will issue more stringent regulatory requirements to protect consumers in “earned wage access” programs, in which workers pay for the ability to access their paycheck early. “It mimics some of the same concerns that we had around payday lending, which is that you put people into a cycle of debt,” Wilson-Spotser said. “This is an area where we see [the CFPB] being bullish.”
• The Treasury Department is weighing reforms to title insurance, which home buyers who take on a mortgage are forced to purchase to protect against financial loss due to defects in a property's title. This is part of Biden’s push to lower the costs of homeownership.
• Some of the changes Biden is seeking require congressional action. Biden has called on Congress to end student loan origination fees, which range from 1 to 4 percent of the total amount of each federal student loan, as part of his 2025 federal budget proposal. He has also pushed for a right-to-repair law that would make expensive devices such as iPhones easier and cheaper to fix by empowering independent repair shops to do the work.

The outcome of the November election may determine whether any of these policies survive, Wilson-Spotser said. “If President Biden were to lose, it’s obvious that the candidate he's facing would not have the same take on consumer protection,” she said. “I did not see from the prior Trump administration an emphasis on consumer protection.”