FTC (Federal Trade Commission) Chair Lina Khan has worked overtime to smash bipartisan norms and grow her power during her tenure. She has “abused her statutory authorities” by using a consent decree over Twitter to request a list of journalists that has worked with the agency to intimidate them against releasing more Twitter Files. She has employed a number of admittedly handpicked unpaid consultants while simultaneously ignoring her own staffers recommendations to an unprecedented degree when deciding whether to adjudicate looming costly cases.
Most recently, Khan has decided to send multiple FTC staffers on trips to Europe to help them defend their antitrust laws, the Digital Markets Act and the Digital Services Act, against American companies. However, she has claimed in multiple testimonies to Congress that the agency “continue[s] to lack sufficient funding” to adequately enforce America’s antitrust laws. Sending the staffers all the way to Europe to accomplish this misguided goal seems like a wasteful use of funds, when even Lina Khan works remotely from New York City.
In the joint written testimony of all FTC commissioners for Tuesday’s House Energy & Commerce Subcommittee on Innovation, Data, and Commerce hearing, the commissioners acknowledge that “the total number of FTC employees working on these issues is dwarfed by our European counterparts.” According to Khan, the FTC is insufficiently staffed, especially in comparison to their European counterparts. However, she still asserts that efficiently allocating resources entails sending staffers from an understaffed American agency to help a sufficiently staffed agency in Europe.
At Tuesday’s hearing, Rep. Jeff Duncan (R-S.C.) perceptively recognized that the Digital Markets Act also discriminately targets American companies, thereby benefitting China. A CSIS study found that the EU’s Digital Markets Act and Digital Services Act “conservatively entail some $22 billion to $50 billion in new compliance and operational costs to U.S. digital services providers and force them to forego critical business opportunities, such as being able to leverage proprietary data to develop new goods and services or even to offer European firms bundled services.” The study also noted that “If U.S. digital services raised their costs on U.S. companies by just 5 percent due to EU regulation, U.S. companies could incur over $97 billion in new costs.” Thus, the effects on US industries from these additional regulations expand beyond tech to every company and user that utilizes these services to increase their own productivity or for other beneficial purposes.
By sending American staffers to help enforce these anti-American laws, Lina Khan is using American taxpayer dollars to raise costs for American consumers. When Khan was asked by Rep. Duncan about her use of this practice, Khan’s refused to engage directly in the congressman’s questions about the laws she is enforcing by trying to align her unprecedented actions with traditional FTC cooperation with international agencies. However, there has not been a long history of laws explicitly targeting American businesses and consumers like these European laws. In this case, Khan’s cooperation subjects Americans to the consequences of discriminatory and aggressive laws from foreign countries that are not subjected to the democratic will of the American people. Americans cannot vote out legislators that voted for the law or do anything to protest these laws. European governments are not subjected to the will of the American people. To say the least, it is odd that Khan insists that the American people be subjected to the will of European governments.
Concerned by this reality, Rep. Duncan asked Khan for the legal authority that allowed her to use FTC resources to enforce European antitrust laws. He also asked whether Khan has the authority to lobby European regulators to impede on American business activities overseas when the reviews are conducted without the inclusion of the US federal court. Khan responded to both questions that the agency makes its “own independent determinations” about these matters. In other words, Khan wants an enforcement agency to make adjudicative and punitive determinations as if it is a judicial body.
Khan wants to be judge, jury, and executioner – with all of her rulings conveniently designed to bring devastating harm to American companies and consumers. However, her failure to directly tie the legal mandate of the FTC to her problematic actions overseas suggests the need for further congressional inquiry. Instead of granting her request for a budget increase of $160 million more dollars to continue to suppress American businesses, Congress must investigate whether Khan is using her authority to undermine legitimate American business practices overseas.