The party seems to be over for hipster antitrust, and the progressives propping it up aren’t happy about it.
Let’s start with the biggest ticket item. Late last month, the House Judiciary Committee released a bombshell report, outlining the incompetence and abuse of FTC Chair Lina Khan. While she has risen to the heights of political celebrity, that evidently does not confer on her managerial competence or economic coherence.
Khan’s record of failure in court and her negative effect on FTC staff morale are both well documented. The committee report dives in further, using FTC emails and interviews with commission managers to detail an agency being torpedoed by the very person charged with its proper administration.
The report highlights one manager who believes that Chair Khan purposefully brings cases against companies she cannot win in order to run to Congress demanding she be granted additional authority. There is a lot to unpack in a claim like that. This is likely because she prioritizes the short term interests of her career and ideology over the long term health and credibility of the FTC. Losing in court doesn’t just look bad; it comes with precedent-setting ramifications. Khan’s arrogance will likely cost the agency across its different issue areas and compromise its ability to be effective moving forward.
Her willingness to misrepresent her failures to Congress also highlights what has been an ongoing issue with Khan’s stewardship: a total disrespect for democratic oversight. Bringing loser cases on purpose and using them to trick federal representatives is not strategic; it’s duplicitous and a violation of the Chair’s oath.
Her allies have worked overtime to justify her misconduct. Progressive Republican Senator J.D. Vance, speaking at a progressive economics event, praised Khan as the member of Biden’s administration doing the best job. What does Senator Vance think Chair Khan’s job is for him to feel she’s doing well at it?
These comments were panned across the conservative movement and show just how isolated the Republicans are who have embraced hipster antitrust. Indeed, the political fallout for embracing sham economics has been bipartisan. Former House Antitrust Subcommittee Chairman Rep. David Cicilline (D-RI) resigned from Congress when his agenda was sidelined by his own party. His counterpart, progressive Rep. Ken Buck (R-CO), was passed over for leadership of the subcommittee because he spent most of his time carrying water for progressive causes. He too is planning his next career as a cable news talking-head, having announced he will quit his job this week. This will force his constituents to cover the cost of a special election months before another full election has to be held.
The Judiciary Committee’s report has been followed by interesting developments in Congress. Seemingly in recognition of Khan’s misconduct, appropriators have included legislative language in the government funding bill that passed this month. It rolls back last year’s Merger Filing Fee Modernization Act. The bill, one of the only antitrust bills to make it out alive last Congress, was essentially a $50 million business tax that was set to flow into the FTC’s pocket. While proponents of the legislation at the time argued the money raised would not go to the FTC and DOJ, that was clearly a lie. Senator Klobuchar, speaking last week, lamented the move to limit the merger fee legislation. She’s changed her tune, admitting that the money is meant to “boost antitrust enforcement” through the very agencies she said wouldn’t benefit from the law. It’s clear the money was always intended to flow directly into the pockets of political appointees intent on undermining the free market.
Also this month, Senator Josh Hawley lifted his hold on the two Republican FTC commissioner nominees. The FTC finally has conservative counterweights to Chair Khan. While it is far too early to say what their tenure will bring, there is no question that the commission will benefit from some balance.
While the usual suspects are furious at this affront to Khan’s omnipotence, Congress’ potential reversal carries with it an important lesson: you cannot spurn Congress and undermine your own agency with impunity. At some point, you will and should be held accountable. Hopefully, this is just the beginning for genuine consequences at the FTC.