Today, FTC (Federal Trade Commission) Chair Lina Khan and her fellow agency commissioners faced questions from the House Energy and Commerce Committee Subcommittee on Innovation, Data, and Commerce to determine whether Congress ought to approve her budget request of $160 million more than 2023. For context, this request is $60 million more than President Biden’s “historic” $100m request for the Department of Justice’s Antitrust Division. For Khan to make such an audacious request from taxpayers on Tax Day, she needed to dispel of any doubts regarding her leadership of the agency. Instead, she added to them.
Last year, the Office of the Inspector General (OIG) panned Khan’s unprecedented use of unpaid experts and consultants. Khan defended her practice in the hearing by pointing out that this practice had been used before by her predecessors. While true, the OIG report pointed out that the issue was not with Khan generally using unpaid consultants, the report still criticized her use of them because she did so in significantly greater numbers than her predecessors, and without providing adequate, narrow confines for the scope of their work. The OIG expressed concern that these practices may violate policies for federal agencies that stipulate that such hires are not allowed to play an “inherently governmental function” in the course of their work for the agency.
Representative Kat Cammack (R-Fla.) inquired Khan regarding her process for hiring these unpaid consultants. During this exchange, Khan acknowledged that she did not place public employment job openings for these roles. Instead, she admitted to directly contacting handpicked individuals to serve in these broad roles. As Rep. Cammack astutely pointed out, this practice could lend itself to severe fraud and corruption that would thereby tarnish the agency’s reputation.
In light of reports that suggest Khan’s failure to rely on staff to complete critical agency functions, such as engage in the Meta-Within lawsuit, it is troubling to know that Khan stacked the agency with an unprecedented number of handpicked consultants. Khan lacks any litigation experience. If the staffers did not advise Khan to make this decision, then her decision to override them must have been advised by some other party. Khan simply does not have the experience to make such a bold move without any guidance. Thus, Khan possibly stacked the agency with people likely to adopt her similar creative, yet inaccurate, conception of her laws to fill the FTC with an echo chamber of people with a radical progressive, Neo-Brandeisian antitrust philosophy.
Congress needs to investigate the credentials of the individuals hired by Lina Khan to ensure that she is not stacking the agency with radicals disguised as experts. They also must examine the activities of these handpicked consultants to ensure that they are not deciding policy.