Lina Khan angered American businesses.
It has used one of the most powerful government departments in the world, the Federal Trade Commission, to challenge big business mergers and issue new regulations aimed at giving more rights to workers and consumers.
Business leaders, therefore, I wanted her fired. And with the new Trump administration, they will get what they wanted.
On Tuesday, President-elect Donald Trump announcement he will elevate Andrew Ferguson, a current Republican commissioner at the FTC, to the role of chairman of the agency. Trump said he would also nominate Mark Meador, a former member of Utah Republican Sen. Mike Lee’s antitrust staff, as FTC commissioner.
Trump’s decision will likely be good news for some companies, but certainly not all, and especially for big tech companies — which Ferguson has sharply criticized and, in Google’s case, filed a lawsuit against then that he was solicitor general of Virginia.
Here’s where Ferguson’s record suggests the FTC could be headed under his leadership.
A former aide to Senate Republican leader Mitch McConnell, Ferguson has been an outspoken critic of big monopolies. He has supported calls for a national data privacy law and called concentration in the tech industry the “competition issue of our time.”
All of this suggests some alignment with the FTC’s current priorities, including recognizing the role technology companies play in the modern economy and the importance of vigorously enforcing the nation’s antitrust laws.
His biggest differences with Khan are over what they see as the power of the FTC itself and whether or not it can rein in companies by writing regulations, or whether it should first wait for a Congress deadlocked on passing legislation.
Ferguson broke with Khan, for example, over the FTC’s groundbreaking national rule banning clauses in workers’ contracts that prevent them from leaving one employer and working for a competitor. The 2024 rule, which immediately sparked objections from business leaders who called it a government power grab, was outside the FTC’s authority to create, Ferguson wrote in a dissent.
“We are not a legislature; we are an administrative agency exercising only the power lawfully granted to us by Congress,” Ferguson wrote.
This dissent reflects a deep and long-standing disagreement between Democrats and Republicans over the scope of the FTC Act – the congressional charter defining the commission’s powers. In this situation, Ferguson argued that the “best interpretation” of the law was that it only authorized the FTC to make rules for itself, not for private companies.
With Ferguson at the helm, the FTC appears poised to pursue prosecutions in monopoly and consumer protection cases, including the antitrust case. to break Meta filed under the first Trump administration and a pair of case against Amazon.
His past role as solicitor general of Virginia, in which he, the Justice Department and a number of other states, underscores the chances that Ferguson will be tough on technology. sued Google to monopolize the digital advertising technology market. The major case targeted the $31 billion portion of Google’s business that connects website publishers with advertisers and went to trial this fall. A decision could be made within a few weeks.
But it’s important to note that Ferguson appears to want to avoid sweeping types of regulations. that Khan had defended.
It’s also becoming clear that Ferguson may seek to use the country’s antitrust laws as a tool to force social media platforms to promote conservative speech even more than they do.
It’s unclear how far that effort will go in court, but Ferguson announced his intention during congressional testimony last year and again in a statement following Trump’s announcement this week.
“At the FTC, we will end Big Tech’s vendetta against competition and free speech,” Ferguson posted onTuesday. Mainstream tech platforms have insisted they don’t censor speech based on a political viewpoint, and some companies have gone out of their way to adapt and even promote right-wing viewsbut conservatives have long accused them of anti-conservative bias, resulting in weaker platform application against electoral lies and disinformation.
Ferguson outlined the nexus between antitrust and political discourse last year during his Senate confirmation hearing.
Consolidation in the tech sector makes it easier for governments to pressure social media companies to remove content, Ferguson told Missouri Republican Sen. Eric Schmitt. Schmitt, as state attorney general in 2022, led a highly publicized trial over alleged social media censorship that ended up before the Supreme Court during his last term.
The case targeted the Biden administration’s communications with social media companies that pressured them to remove Covid-19 and election misinformation, which Missouri, Louisiana and a handful of parties say private, was a First Amendment attack on conservative speech.
“It is much easier for the government to control the conduct of every citizen if all it needs to do is coerce a few market players,” Ferguson told Schmitt. “This is why the aggregation of private power is potentially so dangerous, because if the government can coordinate with just a few actors, it is much easier to control the rest of us. And I think the litigation initiated by your state has revealed how this can potentially work in real time.
Earlier this year, the Supreme Court decided that the White House can continue to report what it considers misinformation on social media platforms for the time being, while the case continues in lower courts. HAS pleadingThe justices expressed deep skepticism of the states’ legal arguments, saying they could lead to unintended consequences, such as the government’s failure to warn social media platforms about violent threats against officers public.
Ferguson has also weighed on social media discourse in other ways. During his tenure as solicitor general of Virginia, he, alongside representatives from 17 other states, filed in support controversial Montana law seeks to ban TikTok on personal devices throughout the state. Trump claimed he would “save” TikTok from a nationwide ban, although it was unclear how he could do so.
Ferguson’s track record suggests that while he and Khan both share some level of skepticism about the technology, the new FTC chairman is motivated by conservative grievances against online platforms, which distinguishes him from Khan, whose concerns with technology have focused primarily on economic outcomes. .
In other ways, however, Ferguson and Khan seem to share commonalities. In a June interview with the Mercatus Center, a libertarian think tank, Ferguson defended some initiatives led by Khan’s FTC.
For example, he highlighted how an ambitious update to the U.S. government’s program merge guidelines – which set out the expectations for which merger regulators may consider anticompetitive – do not constitute a radical departure from existing judicial precedent.
While he may disagree with some of the new guidelines, Ferguson said he doesn’t think it’s productive to rescind the guidelines with every change in administration.
“I think a lot of what’s in the guidelines is actually a restatement of previous guidelines and cases, and in that sense it kind of promotes predictability,” he said . “I think other elements of the guidelines push the boundaries a little bit.”
“The guidelines will become useless to everyone if everyone thinks that they only embody the very particular preferences of a particular party,” he added.
Elsewhere in the interview, Ferguson emphasized his deep belief in the separation of powers, as well as the safeguards established to protect it. Congress makes laws; the administrative state enforces them; and judges decide whether enforcement is fair based on a careful reading of the law.
In this regard, Ferguson presents himself as an institutionalist, completely different from the man who is about to offer him a big promotion.