The FTC's Veneer of Democracy is Fading

The Federal Trade Commission, with Chairwoman Lina Khan at the helm, is taking a hard stance against America’s largest companies — at the cost of discourse and debate.

Chairwoman Khan and her colleagues are trying to change antitrust laws by decree, not merit. This Neo-Brandeisian push for reform seeks to end the 40-year “failed” experiment that championed consumer welfare. If successful, they will re-imagine antitrust law as Louis Brandeis saw it — a tool for broader social and economic issues — while, ironically, abandoning the ideals he cared for the most. 

Brandeis was wary of big businesses, but he also did not support big government. And as evidenced by his famous Brandeis Brief, he valued input from others, believing that they could help inform complex legal problems. Although he used these perspectives to reach different conclusions, Brandeis nonetheless tried to raise voices, not suppress them as Neo-Brandeisians have done. 

Antitrust experts with fair and legitimate criticism of enforcement decisions have not only been ignored, they’ve been shut out from standard procedures and accused without merit of having dark money ties. For example, the FTC launched an administrative complaint against Illumina for its acquisition of Grail, a cancer-screening startup. A group of 23 prominent economics professors and experts attempted to file an amicus brief to call attention to the problems associated with the trial. They warned that such punitive antitrust sanctions, based on speculative allegations of harm, would negatively impact innovation.

FTC staff opposed the brief, insinuating that the academics have been bought off by Illumina and should thus be ignored: “Although they aver that they were not directly compensated to provide this brief, Amici do not state whether they—or the institutions they represent—have an otherwise meaningful relationship to Respondents.”

There is no evidence that the academics were paid by the merging parties to write the amicus brief. As Professor Thom Lambert, one of signatories, wrote on Twitter: “It’s awfully rich for FTC to cry bias in an administrative proceeding in which it acts as both prosecutor and judge...I really wish antitrust interventionists would stop accusing everyone who disagrees with them of being bought off.”

Professor Lambert went on to caution that “when government enforcers discount opposing viewpoints as biased, it’s downright dangerous.” But as expected, the administrative judge sided with the FTC staff and rejected the motion.

It is reckless, if not repressive, for Khan and other FTC staff to implement sweeping changes while pushing down anyone who has a differing opinion. This problem is widespread, even within the FTC: Staff’s ability to participate and access information is entirely determined by the view they hold. Republican Commissioners Christine Wilson and Noah Phillips lack access to important documents, and their dissenting statements have been intentionally excluded during policy changes. In a recent speech — a rare occurrence since Khan instituted a no-public appearances policy — Wilson shed light on the dysfunction at the agency, highlighting how her staff has been “sidelined” and “disdained” by current leadership.

These actions stand in stark contrast to the values that Khan has publicly stood for. Since her appointment this summer, Khan has repeatedly committed to agency transparency, public participation, and the pursuit of democracy. The past few months have proved she’s all talk and no action — at least for those who disagree with her. 

It is telling that well-respected voices in the antitrust community are being muzzled in conversations they deserve to be a part of. As Commissioner Wilson stated, the “Neo-Brandeisian antitrust revolution is bound to fail” because it dismisses “the rule of law and due process,” treats different views as if they do not deserve to be heard, and devalues “free markets, which beget free people, because command and control economies fail.” But according to Khan and her FTC staff, these concerns have no merit. So much for democracy

Rachel Chiu is a contributor and Technology Fellow for Young Voices. Her work has been featured in USA Today, The Hill, RealClearMarkets, City A.M., and elsewhere. Follow her on Twitter @rachelhchiu.