OPINION:
For over 100 years, the Federal Trade Commission has been charged with protecting American consumers.
And while the party in the White House naturally changes the direction of the FTC, we have never seen a more aggressive, punitive and dictatorial version than we are right now.
This came to a head in recent days when the FTC’s sole Republican appointee, Christine Wilson, resigned after credibly charging FTC Chairwoman Lina Khan with abuse of power.
Ms. Wilson stated that Ms. Khan’s reckless attempts to remake federal antitrust law and general disregard for the rule of law left her without an option.
“I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining,” Ms. Wilson wrote of her resignation in The Wall Street Journal.
American companies have recently been left to fend for themselves as President Biden’s FTC bulldozes through lawsuits and oversteps Congress, stifling innovation and forcing companies to shoulder the burden of debating their future in an uncharted landscape.
In recent years, the FTC’s focus has been to provide regulatory oversight when and where it’s deemed worthy. The FTC’s failures stem from weak lawsuits without legislative support or congressional guidance.
In 2021, Mr. Biden made quick work of installing Chairwoman Khan, the underqualified 32-year-old progressive who now has enormous power over business.
Ms. Khan’s hyper-regulatory agenda began before she was chair of the FTC, calling for antitrust regulatory oversight and promising to focus on “unfair methods of competition.”
Ms. Khan’s guilty-until-proven-innocent approach to leadership has produced mediocre results, filing complaints and suits based on “reasons to believe” while providing insufficient evidence in the courtroom. Does she ever win a case?
Ms. Khan’s overreach continues within the halls of the FTC.
In her latest embarrassment, a federal judge this month rebuked the FTC for not doing its homework and dismissed its attempt to block Meta’s acquisition of the virtual reality app developer Within Unlimited. Bloomberg stated that FTC staff had recommended against the move to sue Meta.
“The move demonstrates Khan’s new, more aggressive approach to antitrust enforcement compared with her predecessors — as well as the challenges she faces in bringing the agency along with her,” Bloomberg reported.
In January, the U.S. Chamber of Commerce threatened to sue FTC over a proposed ban on noncompete clauses.
The Chamber of Commerce rightly argues that the FTC is overstepping its bounds and does not have the authority to lift noncompetes for all employers. The Senate has already proposed bipartisan legislation banning noncompete clauses.
The chamber called the proposal “blatantly unlawful’” and ignorant of established state laws where “noncompete agreements are an important tool in fostering innovation and preserving competition.”
According to her Wall Street Journal column, “Why I’m Resigning as an FTC Commissioner,” Ms. Wilson resigned, citing that “Since Ms. Khan’s confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. 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.”
“Under President Biden, FTC leadership has abused the merger review process to impose a tax on all mergers, not only those that hinder competition. Progressives tried but failed to enact a legislative moratorium on mergers in early 2020 and to pass other restrictions since. Ms. Khan now does so by fiat. Abuse of regulatory authority now substitutes for unfulfilled legislative desires,” she wrote.
House Energy and Commerce Chairwoman Cathy McMorris Rodgers, Washington Republican, said: “Inevitably, the commissioners would favor certain business models over others, triggering massive penalties against practices they personally disfavor. … Attempting to rewrite privacy law by executive fiat would be a blatant overreach that would almost certainly invite legal challenges.”
One of the largest and most impactful FTC overreach examples is aggressive litigation against the Idaho tech company Kochava.
Last Aug. 29, Mr. Biden’s FTC filed suit against Kochava, alleging that it was selling sensitive geolocation data. The FTC’s failure to clearly define “sensitive locations” created immense confusion and frustration across the industry. While no current laws specifically mention or deal with mobile geolocation data, countless companies and political operators continue to use this data to market products, legislative issues, and for campaign advantages.
Instead of providing clear guidelines for data companies to protect consumer privacy when visiting sensitive locations, Ms. Khan has left data companies to fend for themselves. Furthermore, by avoiding the fundamental issue of protecting sensitive locations from campaign tracking, the FTC has done more harm than good. They have launched aggressive lawsuits, overstepping Congress while attaining lackluster results.
The FTC has clearly stated that it plans to set precedents on data issues that are currently not defined by Congress or the courts, regardless of the users’ interests.
Enough is enough.
Under Ms. Khan’s leadership, the unchecked FTC wreaks immeasurable havoc on the private sector and the products that everyday Americans enjoy, as it continually oversteps its authority and circumvents Congress.
Now is the time for Congress to provide real oversight and create the regulatory foundation needed to stop the FTC’s aggressive agenda that stands to impose huge costs on companies and risk the innovative standing that the U.S. has long held.
• Matt Mackowiak is president of Potomac Strategy Group, a Republican consultant, former Bush administration official, Bush-Cheney reelection campaign veteran and former press secretary to two U.S. senators.
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