By: Joseph Murgida
Last week, the House Energy and Commerce Committee had its first opportunity to ask newly-anointed FTC Chair Lina Khan questions regarding her plan for running the FTC. Congressman Gus Bilirakis (R-FL) questioned, if Khan would “commit to [run the FTC] in a bipartisan fashion where you will consult and coordinate with all commissioners and ensure that they have the resources of the commission available to them on all pending business.” Khan answered affirmatively, stating that she would be “happy to find shared areas of agreement” at the FTC.
What a wonderful sentiment, if only Khan meant it. So far, Khan has launched one of the most partisan crusades in the history of the FTC. She has taken advantage of her temporary 3-2 majority to steamroll consequential changes and smash long-held bipartisan norms. 71 percent of proposals during the Open Commission Meetings have been pushed through with this 3-2 majority. Some of these proposals overturned enforcement principles previously agreed to with bipartisan support. One example is the 2015 “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition Under Section 5 of the FTC Act,” which was written to limit the FTC’s “standalone” authority over unfair methods of competition when addressing anticompetitive conduct outside of the scope of the Sherman or Clayton Acts. Another example is the Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases, which essentially functions as imposing a decade-long merger tax on corporations.
Even though Khan said that “staff is always available to provide analysis and assessment and commissioners are routinely requested that analysis from staff and staff is providing it,” FTC commissioners from the Republican minority have disagreed with that description. Commissioner Christine Wilson has discussed that the loss of “full consultation with staff through oral briefings,” along with “comprehensive memoranda” and “a robust dialogue amongst the commissioners” has harmed her ability to make fully informed decisions, as they only give monologues that are “akin to theater.”
We may not know for a long time the perspective of staffers on the impacts of this half-fast procedural approach due to an agency-wide gag order. Jen Howard, Khan’s chief of staff, has put a “moratorium on public events and press outreach.” The internal and external silencing of FTC staffers under Khan is troubling. Thankfully, Khan has been unable to silence commissioners that have emphasized her careless changes to long-standing procedures.
House Republicans, including House Energy and Commerce Committee Republican Leader Rep. Cathy McMorris-Rodgers (R-Wash.), Rep. Jim Jordan [R-Ohio], and James Comer [R-Ky.], wrote a letter to the FTC denouncing these radical reforms. They noted that “reports suggest radical changes at the FTC may be damaging morale and having significant negative effects on experienced FTC staff.”
Khan reckless pursuit of “reforming” the FTC appears to be willingly ignoring the commissioners outside of the temporary Democrat majority and the perspectives of other scholars. Despite Khan’s words promising bipartisanship, her actions promote a partisan transformation of the agency.