President Joe Biden is expected to pick Lina Khan, a critic of big tech companies, to join the Federal Trade Commission (FTC), a sign that the age of antitrust may have arrived for the tech industry.
Lina Khan is a law professor at Columbia University and a former Democratic staffer at the FTC and Congress. Khan was part of a group of House antitrust subcommittee staffers who wrote a report in October that concluded big tech companies, including Amazon, Apple, Facebook, and Alphabet’s Google, hold significant and durable market power resulting in less innovation, fewer choices for consumers, and a weakened democracy.
She previously worked at the anti-monopolist nonprofit Open Markets Institute and has since become a progressive leader in the movement known as “hipster antitrust.” Khan also served as a legal adviser to Rohit Chopra, an FTC commissioner nominated to lead the Consumer Financial Protection Bureau.
With Khan’s strong antitrust background and leadership in the progressive antitrust movement, the Biden administration is signaling that lax antitrust enforcement during the Trump years may soon come to an end. Public Citizen called Khan’s expected nomination “a hopeful sign that the Biden administration intends to take a more aggressive approach,” pointing to her experience as a congressional staffer.
Members of Congress have also begun weighing in on the potential nomination, specifically Khan’s former boss, Rep. David Cicilline (D-RI).
Choosing Khan for the FTC is “a major victory for locally-owned businesses, workers, and everyone who has been negatively affected by the dominance of Big Tech,” said Rep. Cicilline.
Meanwhile, others have expressed concerns over Khan’s potential nomination. Reportedly there is concern that Khan is being elevated too fast. She is in her early 30s and does not have as much litigation experience as some would like, such as Sen. Mike Lee (R-UT), who criticized Khan for both her age and her views.
“Ms. Khan no doubt has a promising career ahead of her, but being less than four years out of law school, she lacks the experience necessary for such an important role as FTC Commissioner. Her views on antitrust enforcement are also wildly out of step with a prudent approach to the law,” he said.
While it is likely Sen. Amy Klobuchar (D-MN), chair of the Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, will support Khan’s nomination, there’s evidence she is not entirely on board with all of Khan’s views on antitrust.
During Khan’s time as a House antitrust subcommittee staffer, part of the report she gave to the committee suggested that Congress consider forcing companies to separate large online platforms from other business lines. However, Sen. Klobuchar and other Democrats have not endorsed a law requiring structural separation like Khan suggested.
Instead, Sen. Klobuchar introduced the Competition and Antitrust Law Enforcement Reform Act which proposes legal changes to help the government win antitrust cases. The legislation would significantly change the legal standards to make violations of the Clayton, Sherman, and FTC Acts easier to prove. It would also grant U.S. antitrust agencies more tools, resources, and penalties to enforce the antitrust laws.
Sen. Lee has expressed concerns about the need to change antitrust laws in the manner that Klobuchar has suggested Congress should.
“There’s a lot of talk about antitrust legislation this Congress. One thing lost in many proposed reforms: the consumer welfare standard is not a get-out-of-jail-free card for Big Tech. We don’t need to change the law. We need to enforce it… I look forward to improving antitrust enforcement this Congress. It is imperative that we ensure markets work for consumers, not just monopolists. It is equally imperative that we not cede this task to the radical left. The consumer welfare standard is essential to both,” he tweeted in late January.
