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ADventures in Law

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Last week, the House Judiciary Committee held an oversight hearing regarding the Federal Trade Commission (FTC or the Commission). FTC Chair Lina Khan was the sole witness appearing at the hearing. The <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/p210100housejudiciarytestimony07132023.pdf">FTC’s written testimony</a> was typical – a detailed description of everything the FTC has been up to for the past year or so, including both competition and consumer protection developments. The hearing, however, was anything but typical, and you can read about some of the somewhat explosive details <a href="https://www.nytimes.com/2023/07/13/technology/ftc-lina-khan-hearing.html">here</a>. It got ugly.

In short, it was a pretty hostile affair that got quite personal and in many respects reflected the political divide that we see every day. Half the members expressed anger and outrage about what the FTC has been up to, and the other half were quite supportive of the agency’s work and policy positions. As someone who worked at the agency for decades, I had never seen an FTC hearing with this level of rancor. It is not uncommon to see a member expressing displeasure at something the agency did or didn’t do, but I can’t recall any other hearing where the temperature was quite this high and for so long. (But trust me, every member has at times raised concerns about robocalls.)

The issues raised at the hearing ran the gamut from overly broad investigational inquiries to recent court losses in merger challenges to the non-compete rulemaking to ethical issues to poor agency employee morale. And to be clear, every one of these issues is a legitimate issue that can and should be explored in an oversight hearing. It’s all fair game and appropriate to discuss at such a hearing. Should it be done in a manner that is so personal and hostile? I guess that is where minds may differ. As someone who has been watching the agency quite closely for the past two years, I too have concerns about what it is doing in some areas. But does a hearing like that provide real transparency or clarity into these issues? I can’t say it does. The only real takeaway from the hearing for me was that there are truly deep-seated concerns about the FTC’s current approach to competition and consumer protection.

Perhaps one of the factors contributing to the overt hostility at the hearing is that for several months now, Republicans have not had any voice at the Commission. With Commissioner <a href="https://www.adventures-in-law.com/ftc/why-the-resignation-of-commissioner-wilson-from-the-ftc-is-a-big-deal/">Christine Wilson’s departure</a> at the end of March 2023, three Democrat commissioners remain, and since then, all matters that have been voted on have been unanimous. There have been no dissenting statements raising concerns or questions about Commission actions or policy. That will likely change sometime this year since, just a few weeks ago, the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/07/03/president-biden-announces-nominees-to-bipartisan-boards-and-commissions/">White House nominated</a> Andrew N. Ferguson and Melissa Holyoak to fill the two vacant slots at the Commission. (As an aside, how odd is it that the nominees happen to be the solicitor generals of their respective states, Virginia and Utah?)

After the hearing, a few people asked me whether I thought that – given the tenor of the hearing – we should expect to see some modulation or perhaps retrenchment on some of the agency’s more aggressive positions of late. My prediction is maybe at the margins just a bit, but not likely in a way that suggests any sort of dramatic shift. Even once the two new commissioners are confirmed (and that is many months away in all likelihood), there will still be three consistent votes to support the current agenda. Minority commissioners still do have an important role to play through highlighting their concerns publicly and working with their counterparts to make changes internally. That is, traditionally, a process that has often allowed the agency to reach consensus and has generally meant that hearings haven’t been hostile and adversarial headline events.

But for now, things remain status quo at the FTC, and we can only imagine what might be in store for the next House FTC hearing.

That House FTC Oversight Hearing Sure Was Something

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