Not A Great Look
Last week, Christine Wilson, a commissioner at the FTC, wrote an op-ed in the Wall Street Journal announcing her resignation from the FTC. The reason: Lina Khan’s continual disregard for the rule of law, abuse of power, and the enablement of it by senior officials.
We’ve written a lot about the dangerous direction of the FTC under Chairwoman Khan, as you can see here and here and here. There’s a reason. The actions of the Chairwoman have spurned decades of antitrust precedent, bipartisan consensus and stifled innovation. Her actions also disregard the rule of law, the legislative process, and the legal limitations of regulatory agencies.
First, there is the ideology behind Khan’s crusade: That big is bad. This is why the FTC has blocked mergers and believes big companies must be broken up. This was the philosophy we’ve continually pushed against. Now, however, it’s being revealed more and more that the methods are undemocratic and are an abuse of power.
It would be easy to dismiss Wilson’s critique in the article as a disgruntled employee with a different vision for the work of the FTC. Yet, as has been shown before, morale is low throughout the agency.
“In 2020, the last year under Trump appointees, 87% of surveyed FTC employees agreed that senior agency officials maintain high standards of honesty and integrity,” writes Wilson. Today it’s only forty-nine percent. This, even though many in the FTC share Khan’s agenda—just not her methods.
“Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don’t necessarily reflect disagreement with her ends,” writes Wilson. So, many within the FTC believe in the “hipster antitrust” policy of Khan. Yet even though the staffers agree with the ends, they are uncomfortable with the authoritarian means of achieving them.
Wilson goes on: “[T]he data convey the staffers’ discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda…My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.”
In the article, Wilson says that she and her staff have tried to uncover more abuses of power, but that’s become difficult due to how she has consolidated power. Yet, she does cite some instances.
In November 2022, the agency adopted an “I know it when I see it approach” to condemn abuses of power from companies. Who is the judge? Three unelected FTC commissioners. Then, in January 2023, they also disregarded the Supreme Court’s ruling in West Virginia v. EPA, which stated that an agency can’t claim “to discover in a long-extant statute an unheralded power representing a transformative expansion in its regulatory authority.” That’s precisely what they did as they sought to flex their regulatory muscles in the realm of noncompete clauses in employment agreements. Finally, she also says that her dissents within the agency have been redacted from documents to keep Khan from embarrassment.
Unfortunately, regulatory agencies usurping the legislative process is not new—nor unexpected. This kind of thing is bound to occur as the administrative state grows, both federally and at the state level.
In the words of Wilson, “Abuse of regulatory authority now substitutes for unfulfilled legislative desires.”