The FTC is Radicalizing. The Two GOP Commissioners Can Push Back
As congressional Democrats rush to ram through a laundry list of progressive priorities ahead of what’s expected to be a brutal midterm election season for the party, the Democratic-led Federal Trade Commission’s power grab has largely flown under the radar.
Made up of three Democrats and two Republicans, all appointed by President Biden, the FTC has taken a sharp left turn over the last couple of years, most recently progressing an agenda that punishes businesses and ignores basic constitutional protections while also trying to expand the Commission's power. Specifically, the Commission is bypassing long standing guidelines on why it might investigate a company for antitrust violations in an effort to regulate businesses.
The most recent case involves tobacco company Altria’s acquisition of a 35 percent stake in e-cigarette maker Juul Labs. In April 2020, the FTC complained the acquisition eliminated competition in violation of federal antitrust laws. Nearly two years later, an administrative law judge dismissed the FTC complaint, claiming the Commission failed to show that Altria’s removal of its e-vapor products from the market was based on its acquisition of Juul. The judge, Michael Chappell, also found the e-cigarette market had become more competitive following Altria’s exit, not less.
The case ends there, right? Wrong. Due to the anti-democratic setup of the FTC, which lacks any form of checks and balances, the case was kicked back to the Commission for review. Beginning next month, the FTC will hear oral arguments on the case, after which the commissioners will vote on whether to uphold or reverse Chappell’s decision.
Unfortunately, this is hardly the first case in which the FTC has acted as both judge and jury. Over the last three decades, the FTC has ruled for itself in 100 percent of its cases. In other words, the Commission has affirmed every single case in which their administrative law judge ruled for the FTC and overturned every single case in which their administrative law judge ruled for the defendants.
While precedent indicates the outcome of the Altria/Juul case is almost certainly predetermined, the two Republican commissioners, Noah Phillips and Christine Wilson, have the opportunity to demonstrate to the American people that the agency’s judicial process is not entirely a sham. Both have previously criticized the FTC’s radical shift under chairwoman Lina Khan, with Wilson testifying before the House Judiciary Committee in September 2021 that Khan was tarnishing the FTC’s “rich bipartisan tradition” and undercutting its reputation. Wilson also claimed the FTC’s failure to provide clarity “regarding what constitutes lawful and unlawful behavior harms honest businesses that seek to comply with the law.”
This is not simply a partisan issue, either. Last year, the Supreme Court stripped the FTC of its ability to impose fines in certain consumer protection cases due to several instances of overreach. Unless the FTC changes course, the Commission is likely to see its statutory authority further diminished.
As the FTC gears up for next month’s oral arguments in the Altria case, now is the chance for Republican commissioners Wilson and Phillips to stand up to their Democratic colleagues and vote to affirm Chappell’s decision. While their support will not change the outcome of the vote, it will show both Congress and the public that the FTC is an agency committed to administrative integrity rather than a kangaroo court.
Diante Johnson is the president of the Black Conservative Federation and a former member of the Black Voices for Trump advisory board.
