Joe Biden’s choice of chairperson for the Federal Trade Commission was a bold one: The antitrust prodigy Lina Khan, godmother of the “hipster antitrust” school that argued for a rethink of the last half-century of competition law. Khan, the millennial firebrand, represented something like an antitrust version of “drain the swamp.” But as happened the last time an outsider came to D.C. threatening to shake things up, D.C. has fought back. On Tuesday, not only did the lone remaining Republican commissioner at the agency resign, but she ripped Khan over and over again in a fiery Wall Street Journal op-ed that ran over a thousand words. “Consider this my noisy exit,” wrote Christine Wilson.
An attorney with deep ties to the Republican Party, Wilson was a commissioner at the agency since her appointment by former President Donald Trump in 2018. Not only was her exit noisy, but she labeled Khan a lawbreaker who habitually abused her power. Wilson claimed the FTC chair disregarded the rule of law as well as legal precedent, while pushing for the regulator to reach far beyond its mandated jurisdiction and authority. Wilson’s departure leaves the FTC without any Republicans among its leadership, since Noah Phillips, the second Republican commissioner who made up the traditional 3–2 split, stepped down in October. To Khan’s supporters, her disregard of decades of antitrust law and pushing the FTC into new jurisdictions is exactly the point.
Since the 33-year-old Khan shot to Beltway fame in 2017 with her seminal Yale Law Journal paper titled “Amazon’s Antitrust Paradox,” she’s been a vocal critic of tech giants’ hegemonistic control over the economy. And Wilson’s op-ed confirmed what antitrust watchers have long theorized: The chair’s long-running campaign against Mark Zuckerberg in general, and the FTC’s case against a recent Meta acquisition in particular, was a big deal behind closed doors, and especially ruffled the feathers of the agency’s Republican commissioners.
FTC divides
Among other complaints, Wilson’s op-ed highlighted Khan’s lawsuit against Meta in July, opposing the tech company’s proposed acquisition of a tiny virtual reality company, as well as the White House–backed proposal last month to ban noncompete clauses.
“I refuse to give their endeavor any further hint of legitimacy by remaining,” Wilson wrote of the Khan initiatives. “Accordingly, I will soon resign as an FTC commissioner.”
Wilson accused Khan of bias in relation to the Meta case after the current chair repeatedly criticized the social media company for violating antitrust law before joining the agency. In 2021, Facebook even petitioned to have Khan recused from participating in antitrust lawsuits against the company, citing her past statements, including one that Meta should not be allowed to make another acquisition—ever. While Democrat commissioners backed Khan’s decision not to recuse herself, Wilson publicly dissented.
Wilson claimed her Democrat colleagues redacted significant portions of her dissent statement with “no purpose but to protect Ms. Khan from embarrassment.” She pointed to previous instances of FTC chairs being recused from cases where they made similar remarks, which “were far milder than Ms. Khan’s definitive pronouncement that all Meta acquisitions should be blocked.”
Wilson also criticized Khan’s leadership abilities at the agency, which has suffered from a steep drop in morale during her tenure, claiming staffers at the FTC were uncomfortable with Khan’s “dishonesty and subterfuge to pursue her agenda.”
In a joint statement with FTC commissioners Rebecca Slaughter and Alvaro Bedoya, both Democrats, Khan opted to take the high road without directly addressing Wilson’s critiques: “While we often disagreed with Commissioner Wilson, we respect her devotion to her beliefs and are grateful for her public service. We wish her well in her next endeavor,” they wrote.
When Khan was appointed as FTC chair in 2021, her tough stance on tech was largely backed by both parties. Khan had become well-known in antitrust circles, especially where tech was involved, with her argument that 40 years of antitrust enforcement was upside down for how it ignored the market power wielded by firms such as Amazon and Facebook, as it was then known.
Her 2017 academic paper was so influential it made Khan a household name in D.C. and Silicon Valley, giving rise to the “hipster antitrust” school in reference to Khan’s young age and how it called back to more expansive 1960s-style antitrust practice. Critics, including former Republican FTC commissioner Joshua Wright, dismissed Khan’s view as a misguided effort to use antitrust to solve societal issues like inequality and climate change.
Tweeting about Wilson’s forthcoming resignation on Tuesday, Wright claimed that the Supreme Court would increasingly turn against Khan and the FTC. Fairly or not, the fact it has zero Republican commissioners means that its “bipartisan balance” is “illusory,” he argued.
SCOTUS distinguished the FTC from the CFPB, emphasizing the former is "balanced along partisan lines," whereas the CFPB is not. That distinction, with three Democratic Commissioners and zero Republicans, is now illusory. (3/x)
— Joshua Wright (@ProfWrightGMU) February 14, 2023
It’s a far cry from 2021, when congressional Republicans were enthusiastic about Khan’s appointment, citing it as an important opportunity to rein in tech companies. “I look forward to working with you,” Republican senator from Texas Ted Cruz told Khan at her nomination hearing, adding: “I think there’s a lot more the commission can do in terms of ensuring transparency from Big Tech.” (Cruz is among the prominent Republicans to whom Wilson, the freshly departed Republican commissioner, has donated.)
The Republican Party has increasingly had its gripes with Big Tech since the later stages of the Trump era. However, while Democrats have criticized tech companies for their monopolistic tendencies, Republicans have focused on what they perceive as censorship. In 2021, a House Republican committee put forth an agenda detailing the party’s position on strengthening antitrust enforcement while also holding companies accountable for censorship of right-wing voices.
The concern over censorship on the right is if anything intensifying, as Republicans accused Big Tech companies this year of colluding with Democrats to censor conservative views online. On Wednesday, the same Republican House committee subpoenaed CEOs at several major tech firms requesting “communications relating to the federal government’s reported collusion with Big Tech to suppress free speech.”
Many of the same Republicans who welcomed Khan’s appointment have soured on her in the past year, with some criticizing her for politicizing the FTC. Cruz called Wilson a “critical counterweight at the FTC” in a statement to the Washington Post Wednesday, adding that he hoped the two vacant Republican spots at the agency will be filled soon, saying the “extreme partisanship” at the FTC leaves “whole swaths of the U.S. economy vulnerable to Lina Khan’s activist agenda.”
Khan has stuck closely to her values despite the criticism, arguing that FTC’s loose and permissive antitrust policies of the past 40 years have enabled companies like Meta, Amazon, and Google to corner their industry and destroy competition. The FTC is preparing for more cases initiated under Khan’s leadership. In addition to the pending lawsuit against Meta, the FTC sued tech giant Microsoft in December to block its $69 billion acquisition of the video game maker Activision Blizzard.
“I think antitrust and anti-monopoly and fair competition are enormously pro-business,” Khan said in a 2021 interview with the New Yorker. “Monopolistic business practices are not conducive to a robust and thriving economy.”
