Federal Trade Commission (FTC) Board Member Christine Wilson, the board’s lone Republican, recently announced her resignation in an op-ed for The Wall Stret Journal. Wilson is leaving the FTC in protest of the way FTC Chair Lina Khan, along with two other Democrats on the FTC board, are implementing her radical agenda.
According to Wilson, Khan has centralized power in her office, making it impossible for the FTC to be transparent about its activities. Khan is also not interested in listening to any criticism of her leadership. Commissioner Wilson feels she has no other choice but to resign and blow the whistle on the Chair.
Khan became a progressive superstar while still in law school because of her law review article, Amazon’s Antitrust Paradox. The article argued that the government must change its approach to antitrust enforcement in order to counter the threat to our economy—and even our democracy—posed by the rise of big tech companies like Amazon. Khan went on to work as a congressional staffer, where she wrote a report for Congress arguing that Meta, the parent company of Facebook, What’s App, and Instagram, should be prohibited from making any further acquisitions since it is already “too big.”
Given Khan’s history, it is not surprising that when the FTC brought a case against Meta challenging its proposed acquisition of the virtual reality company Within Unlimited, they requested that Khan recuse herself from the case. Meta appeared to have a strong case for Khan’s recusal since, as Wilson pointed out in her op ed, courts have required FTC board members to recuse themselves in cases where there was far less reason to suspect bias. Commissioner Wilson also pointed out that federal ethics rules instruct FTC officials to avoid even the appearance of unfairness. Allowing Khan to play a role in determining whether Meta can acquire smaller companies like Within Unlimited, after she publicly called for government to stop Meta from acquiring smaller companies, certainly appears unfair.
Wilson penned a memo of her objections to Khan’s refusal to recuse herself from cases involving Meta. Unfortunately, neither the public nor Congress can see the full extent of her argument because of major redactions in the memo made at the direction of the Democratic members of the FTC board. The FTC is only supposed to redact information to protect business secrets, not to protect the FTC Chair from criticism from other commissioners, Congress, or the general public.
Khan may have thought she could get away with flaunting federal ethics rules and basic due process rights because the Democratic Congress would never investigate a progressive superstar like her. This is likely the same reason why Khan also thought she could get away with reinterpreting the FTC's statutory mandate to prohibit “unfair” conduct, wasting resources by bringing cases she knew the agency would likely lose to signal to her allies in Congress that she needed more power.
However, elections have consequences and thanks to the 2020 midterms Representative Jim Jordan, Chair of the House Judiciary Committee; Representative Andy Comer, Chair of the House Oversight and Investigations Committee; and Representative Cathy McMorris Rogers, Chair of the Energy and Commerce Committee, now have the authority to investigate and expose Khan’s actions.
Even better, any investigation into Khan done by the House Judiciary Committee will be heard by Representative Thomas Massie, the new Chair of the Judiciary Committee’s Subcommittee on the Administrative State, Regulatory Reform, and Antitrust. Massie is the most principled and fearless defender of the Constitution in the House. The fact that Chairman Jordan selected Massie to Chair the Antitrust Subcommittee over Representative Ken Buck is a hopeful sign that Jordan is interested in holding hearings on Khan’s agenda and conduct as FTC Chair. Representative Buck, who usually can be counted on to oppose big government, has unfortunately allowed his anger at big tech to blind him to some of Khan's actions. Hopefully Massie will work with Commissioner Wilson and other notable critics of Khan to expose how she is abusing her power to implement policies that would cripple the already frail U.S. economy.
