The Biden administration’s most activist regulator may soon need a job — unless the next president taps Federal Trade Commission Chair Lina Khan to stay on for another term.
With the controversial FTC chair’s tenure having ended on Sept. 26, it will be up to the next president to decide whether Khan will have another four years leading the agency tasked with antitrust enforcement and consumer protection. Vice President Kamala Harris vowed in front of the Economic Club of Pittsburgh last week to be “pragmatic” if elected and not be “constrained by ideology” in how she governs. Given this noble pledge, she must show Khan the door.
President Biden’s choice of Khan to lead the FTC was an exciting one. Khan, now 35, was and still is young, energetic, and ideologically motivated. She is representative of a critical new generation of Democrats who want to take up the mantle of trustbusting, taking aim at large tech firms.
Since then, Khan has taken the FTC to war against Microsoft, Meta, Google and Amazon, as well as against corporate mergers between handbag companies, hotels, and grocery stores.
The most bizarre and revealing defeat for Khan came in court against Microsoft for its effort to merge with Activision-Blizzard, the video game company behind Call of Duty. The case came about because of the FTC’s shift in focus away from obvious harm to the consumer, modeled by her revamped mission statement for the agency. Khan’s FTC removed language stating its commitment to not hindering legitimate business activity while playing its role as watchdog.
Put more simply, even if a corporate action is known to be legal, Khan will make you fight for it in court.
When you watch Khan’s recent “60 Minutes” feature, this theme is front and center. Khan says “We’re doing our job, enforcing the law.” She is then interrupted by Lesley Stahl, who adds, “You are. [Businesses are] afraid you’re going to tie them up in court, cost them a lot of money, and they’re saying it’s just not worth it.” Khan nods along. Stahl also asks, “If someone just says, ‘I’m not going to go forward,’ that’s a win?” to which Lina Khan replies, “That’s right.”
The FTC under Khan has made it the position of the federal government to oppose reflexively and antagonize all mergers, treating any market consolidation with hostility. That posture amounts to a corporate tax on mergers and acquisitions.
Candidate Harris shares Khan’s proclivity for blaming inflation and higher prices of gadgets and groceries on corporate misbehavior. But if Harris wins the presidency, she will have done so on the promise of understanding middle-class concerns. You don’t see Harris campaigning in the suburbs against one-day Amazon Prime deliveries and Prime Day deals on televisions, which is exactly what Khan is up to in her case against Amazon.
Donald Trump, if he wins in November, will certainly fire Khan, but Harris would have to contend with a tough reconfirmation battle for Khan to keep the job. Khan would struggle to maintain the same level of Republican good faith she received at the start of the Biden administration. High-profile defeats in federal court and agency resignations, including a commissioner’s public rebuke in the pages of the Wall Street Journal, would be the main event of a confirmation hearing, and seriously degrade any wavering support for Khan to continue leading the FTC.
Before grabbing the top spot for antitrust enforcement, Khan was a fresh face with a paper trail of hot takes on how to break up Amazon. Today she’s a federal official with spurned former colleagues willing to speak out against her “disregard for the rule of law and due process” and Federal Employee Viewpoint Survey results showing a dramatic drop, from 87 percent to 49 percent, on the question of whether “senior agency officials maintain high standards of honesty and integrity” within the FTC.
Khan has broken trust and morale within the agency while simultaneously performing on “60 Minutes” and Comedy Central’s “The Daily Show” as a media darling and anti-capitalist icon.
There is nothing “pragmatic” about Khan. It’s why she was hired — to throw the kitchen sink at corporations and test the constraints of congressional oversight of the FTC. She did just that. Were she to retain Khan, Harris would betray her message of common-sense government responsive to policy results.
Biden brought Khan into the fold for what you could call “bold, persistent experimentation” around antitrust, and it has been a failure. Harris can be a fresh leader by correcting that mistake.
Stephen Kent is the media director of the Consumer Choice Center.
