Wilson’s departure will leave Republicans without a voice on the Commission until the seat is filled
By: David Bland
On Feb. 14, the Federal Trade Commission’s lone Republican Commissioner, Christine Wilson, announced in a blistering Wall Street Journal op-ed that her resignation was imminent due to her belief that Commission Chair Lina Khan has been abusing her power.
Nominated to the FTC in 2018 by President Trump, Commissioner Wilson is an antitrust lawyer who has penned several dissenting statements to push back on Khan’s ambitious agenda, including the Commission’s November 2022 Policy Statement that more broadly construes “Unfair Methods of Competition.” The FTC had also presented a rulemaking proposal in January 2023 to ban virtually all noncompete contracts.
Wilson Torches Chair Khan’s ‘Abuses’ in ‘Noisy Exit’
Coming four months after the resignation of her Republican colleague, Commissioner Noah Phillips, Wilson echoed Phillips’ frustration with Khan’s enforcement priorities. However, Phillips’ departure was low-key and amiable compared to Wilson’s self-described “noisy exit.”
“Since Ms. Khan’s confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power,” Wilson penned in the WSJ opinion piece. “That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law.”
Commissioner Wilson called Chairwoman Khan’s ethics into question for failing to recuse herself from the FTC’s challenge to Meta’s acquisition of a virtual reality gaming company after Khan previously voiced her opinion that Meta should be prohibited from acquiring any new companies. Khan wrote a report on the subject when she was a congressional staffer.
Wilson also questioned the ethics of Khan’s allies—Commissioners Rebecca Slaughter and Alvaro Bedoya—after they heavily redacted Wilson’s dissenting statement on the Meta acquisition case.
“Commission opinions commonly use redactions to prevent disclosure of confidential business information, but my opinion contained no such information. The redactions served no purpose but to protect Ms. Khan from embarrassment,” wrote Wilson.
While Wilson conceded that “elections have consequences,” she stated that her objection to Khan’s leadership goes beyond policy differences. Wilson called the Chairwoman’s honesty and integrity into question and suggested that the annual Federal Employee Viewpoint Survey results convey a drastic drop in the rank and file’s respect for FTC leadership.
In 2020, 87% of FTC survey respondents believed that their senior leaders “maintain high standards of honesty and integrity.” Commissioner Wilson stated that this figure currently stands at 49%.
“Many FTC staffers agree with Ms. Khan on antitrust policy, so these survey results don’t necessarily reflect disagreement with her ends,” Wilson stated. “Instead, the data convey the staffers’ discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda.”
Wilson concluded the WSJ op-ed by categorizing her statements as following her own advice that she would give to her clients when they found themselves in legally questionable situations.
“Although serving as an FTC commissioner has been the highest honor of my professional career, I must follow my own advice and resign in the face of continuing lawlessness,” said Wilson. “Consider this my noisy exit.”
US Chamber Calls for Congressional Hearings
Two days after Commissioner Wilson’s statement, the U.S. Chamber of Commerce’s Senior Vice President of International Regulatory Affairs and Antitrust, Sean Heather, called for Congressional oversight action to reign in the Commission.
This statement comes one month after U.S. Chamber President and CEO Suzanne P. Clark’s WSJ op-ed accusing the FTC of “making an illegal power grab banning noncompete agreements in employment contracts.”
On Feb. 16, the Chamber sent a letter to Members of four House and Senate Committees asking Congress to forgo granting any further rulemaking or enforcement for the Commission “until it conducts a thorough investigation and oversight and puts forward reasonable guardrails around agency activity.”
The Chamber’s letter called out the Commission’s questionable use of unpaid experts and consultants to perform governmental functions, as reported by the FTC’s Office of Inspector General, stating it put the agency at legal and reputational risk. Heather’s letter also questioned the Commission’s use of “zombie votes” that allowed departed Commissioner Rohit Chopra’s votes to be counted on certain issues after he had departed the agency.
End of the Consumer Welfare Standard
The U.S. Chamber’s letter to Congress echoed the alarms previously raised by Commissioner Wilson in regard to Chairwoman Khan’s moves to end the agency’s use of the consumer welfare standard in matters of antitrust enforcement.
The consumer welfare standard, one of the FTC’s guiding principles for over four decades, evaluates whether a business practice is likely to harm consumers through anti-competitive practices. The standard essentially provides that if a consumer is not harmed, then the Commission does not act.
“Beginning in June 2021, the Khan FTC upended decades-long, bipartisan practice by consolidating power to the Chair in Magnuson-Moss Rulemakings in consumer protection matters and ending its application of the consumer welfare standard in competition matters,” stated the U.S. Chamber in its letter. “These actions set the stage for the Commission to make end runs around congressional intent in both rulemakings and enforcement.”
Critics of the consumer welfare standard charge that it focuses too narrowly on price while ignoring other factors beneficial to consumers, such as the impact on small businesses, innovation and broader societal concerns.
White House Considers Virginia Solicitor General for Commissioner Seat
Bloomberg News reported on Feb. 17 that the Biden Administration was eyeing Republican Andrew Ferguson for one of the two empty seats at the Commissioner’s table. Law dictates that no more than three members of the same party can serve as FTC Commissioners.
Ferguson, Virginia’s Solicitor General since 2021, is a former aide to Senate Minority Leader Mitch McConnell and was recommended for the Commissioner seat by the Kentucky Senator. Commissioner Wilson has not yet set a date for her resignation.
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