It’s time Congress break up Lina Khan’s monopoly over antitrust reform

For someone seemingly devoted to the creed “big is bad,” Federal Trade Commission (FTC) Chair Lina Khan is wholly uncompromising when it comes to her own behemoth of a political agenda. As one result, Commissioner Christine Wilson announced her resignation from the agency this month in a public letter, denouncing Khan’s disregard for sound policy, mistreatment of staff, and allowing political goals to subvert the FTC’s primary consumer protection efforts.

Wilson, the sole Republican commissioner remaining at the “independent” agency, detailed how Khan’s “abuses of government power” rendered it impossible to continue in her role. She now joins a chorus of voices demanding a check on Khan’s reckless and officious reign over an agency once hailed as a bastion of bipartisanship.

Biden’s appointment of Khan to chair the FTC in 2021 shocked many people as an enormous overreach; Khan had no background in economics and was still a law student during the Trump administration. While an article she authored in law school on the supposed threats Amazon posed to society made her the toast of far-left antitrust activists, she lacked leadership experience to head a federal agency and failed to demonstrate any foundational knowledge of corporate operations or basic market dynamics.

Her fundamental deficiencies have become glaringly obvious throughout her short tenure and earned her scathing reviews from accomplished legal scholars and policy experts. Khan seems to have confused the pursuit of personal political capital with the FTC’s designated purpose: to protect both consumers and market competition.

Khan instead is committed to a “Neo-Brandeisian” approach to antitrust reform centered on one fundamental ethos: big is bad. Eschewing nuanced, contextual analysis on a case-by-case basis, Khan has fixated on this hyper-simplified view of the world—abandoning decades of economic and legal precedent. One tag that has stuck came from a former FTC commissioner who labeled her work “hipster antitrust.”

The consumer welfare standard is a time-tested theory used to guide the FTC as they make decisions based simply upon what most benefits the consumers they are charged to serve. This cornerstone purpose was immediately renounced by Khan and replaced by no standard, only a subjective focus on breaking up any commercial enterprise she deems as “too big.” 

Khan’s self-conjured directive started by targeting the app-based economy, leveraging the agency’s newfound “broad jurisdiction” to unnecessarily regulate gig workers. At an FTC Open Meeting, app-based workers expressed concern about threats that unnecessary litigious action could pose to their livelihood. Stakeholder groups like the U.S. Hispanic Chamber of Commerce and National LGBT Chamber of Commerce called on the FTC to consider that these apps serve as a lifeline to members looking to empower themselves through another income stream. Prioritizing power over people, Khan ignored their pleas, issuing regulations on “worker protections” that exceeded the agency’s statutory authority. 

In yet another political coup, Khan conveniently revised a policy statement, granting herself an even broader scope of statutory authority to bring suit to companies. Rather than produce evidentiary harm, the FTC now need only demonstrate that a company’s business decisions had a
“negative impact on competitive conditions” – an incomprehensibly vague and nonsensical standard Wilson noted, “abandons the bedrock principles of antitrust… accepted by the Commission, the courts, the business community, and enforcers.”

In Khan’s latest attempt at an artificial power grab, the FTC has proposed banning non-compete clauses in employment contracts, a rule that many see as unworkable while also leading to an explosion of litigation in IP and trade secret litigation. In response, dozens of national and state organizations and Chambers of Commerce sent a letter to Congress imploring them to oppose the measure while warning them to check actions taken by the agency “improperly usurping the role of Congress.”

In Lina Khan’s world, “big is bad” can be affixed to any successful company or industry to be targeted by the FTC on her whim, not established principles of antitrust law. Yet as an aspiring autocrat she embraces the motto of “the bigger the better” for her agency’s own exclusive power to regulate every industry within our economy. Like a toddler in the cockpit of a jetliner, Lina Khan doesn’t know what she’s doing, yet is mindlessly pressing buttons on the delusion she does.

Americans desiring a strong and stable economy deserve an FTC committed to the central tenet of the agency’s statute: to champion the interests of the American consumer. We cannot afford to allow Lina Khan’s personal, ultra-progressive political agenda to dominate this crucial policy space. Congress must hold an oversight hearing to rein in her unruly oligarchy within this critical government agency. It’s time for elected officials to break up Lina Khan’s monopoly over antitrust reform.

Gerard Scimeca is an attorney and serves as chairman and co-founder of CASE, Consumer Action for a Strong Economy, a free-market oriented consumer advocacy organization.