- - Monday, July 18, 2022

As Congress works to advance antitrust legislation to break up major companies, the Federal Trade Commission tasked to enforce these laws and protect consumers is yet again testing its boundaries and proving its administrative integrity is on the brink of no return. 

Currently, under Democratic control, the FTC has expanded the scope of what it takes to open an investigation into antitrust violations. Going beyond current rules and taking cases congruent with the pressures of Congress and the media is a glaring overstep that must be reversed and is rightfully facing scrutiny from some of the commission’s own members.

By law, the FTC must maintain a three-to-two partisan divide, but the unelected commissioners experience very little oversight once confirmed by the Senate. As a result, the recent party-line vote to confirm Alvaro Bedoya, along with Lina Khan’s rise to FTC chair, has not only shifted partisan control but led the agency to pursue an overbroad and progressive agenda. 

Despite their minority position on the FTC, Republican Commissioners Noah Phillips and Christine Wilson have openly criticized the public comment process and argued there has been a lack of sufficient public input prior to their votes. Commissioner Wilson has gone as far as to blame Chair Khan over the latest survey, showing the agency staff is dissatisfied with senior leaders regarding matters of respect, honesty and integrity. 

Unfortunately, due to the inherently anti-democratic makeup of the FTC, these commissioners wield far too much power over the American economy, reined in by little more than systems and processes controlled by the commissioners themselves.

A prime example of this flawed system is a complaint filed by the FTC challenging the body camera manufacturer Axon and their acquisition of another company in the industry, Vievu. Axon asserted the purchase was legal and filed a lawsuit in federal court, which was ultimately rejected. The judge’s ruling stated that Axon cannot circumvent the FTC’s administrative process, a process that involves a handpicked judge by commission members and the opportunity for commissioners to appeal any decision made by the judge. Axon is now appealing their suit in federal court to the Supreme Court, challenging the FTC’s authority to dictate the outcome of its own cases.

Without an independent judicial process, the FTC has the final say once they file a complaint. This is particularly alarming given the concerns of commissioners and FTC staff that the Democratic majority is taking the agency into uncharted territory and expanding its caseload beyond its original mission.

This kind of agency overreach is likely to come to a head as the FTC moves towards a decision on another major case regarding Altria’s attempted acquisition of Juul. The antitrust complaint is similar to that of Axon, except the FTC’s administrative judge filed a 263-page ruling against the commission. Given the FTC’s power to appeal this ruling and force their own opinion upon the case, their decision could lead to another Supreme Court showdown with the FTC’s authority to hold administrative trials on the chopping block.

And given the FTC’s trial record, it would certainly not be the first time the FTC has lost power. After a 2021 Supreme Court decision, the commission was stripped of its ability to impose fines on companies that commit consumer fraud. If the FTC were to go to court again, the decision could render the commission without another vital tool. Therefore, it’s imperative the FTC’s two Republican commissioners vote with institutional integrity in mind. 

• Dean Heller formerly served as Nevada’s secretary of state, as a Nevada assemblyman, as a United States congressman and, most recently, as a United States senator. During his tenure in the U.S. Senate, he served on several committees, including the Committee on Commerce, Science and Transportation.

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