President-elect Donald Trump’s nomination of Andrew Ferguson to chair the Federal Trade Commission signals a break from the aggressive stance of the commission under President Joe Biden. However, it also tees up a fight within the new Republican administration over the role of the FTC, with self-fashioned populists and more overtly big business-friendly Republicans disagreeing over the commission’s purpose and whether it should even exist.
The FTC maintained an unusually high profile in the 2024 election, with Lina Khan, the chair under Biden, drawing praise from progressives and scorn from some of Vice President Kamala Harris’s more corporate-friendly allies and advisors.
It’s not just the Democratic Party that Khan’s FTC leadership has divided, however. A handful of self-fashioned populist Republicans like Vice President-elect JD Vance, Missouri Sen. Josh Hawley, former Reps. Matt Gaetz, R-Fla., and Ken Buck, R-Colo., have expressed support for Khan. Collectively, these Republicans have been called “Khanservatives.”
“A lot of my Republican colleagues look at Lina Khan … and they say, ‘well Lina Khan is sort of engaged in some sort of fundamental evil thing. And I guess I look at Lina Khan as one of the few people in the Biden administration that I think is doing a pretty good job,” Vance said at Boomberg’s Remedy Fest earlier this year.
There has been no shortage of commentary questioning how serious Vance and other Republicans are in their support for Khan. What is clear, however, is that the nomination of Ferguson, who previously served as an aide to longtime Senate Republican leader Mitch McConnell, R-Ky., and the nomination of Gail Slater, who previously served as a policy advisor to Vance, tees up a confrontation between two divergent Republican approaches to antitrust, if indeed Republicans like Vance are serious about a more hawkish policy.
Tad Lipsky, a law professor at the Antonin Scalia Law School at George Mason University, told Salon “there’s a lot of chatter going around the antitrust community about this exact issue.”
Lipsky, who served in the Justice Department’s antitrust division under President Ronald Reagan as well as on the transition team for Trump after his 2016 victory, told Salon that the big question mark in the incoming antitrust regime is how Slater will act. Lipsky said, for instance, he would love to know how Slater feels about the new 2023 merger guidelines, that made it easier to challenge mergers, among other things.
“I would love to hear Gail Slater say in an open hearing how she feels about the Hart-Scott rules,” Lipsky said.
Lipsky explained that Ferguson is more of a known entity, having dissented from numerous rulemaking efforts spearheaded by Khan in her time at the FTC, like the agency’s ban on noncompete clauses and their rules aimed at making it easier to cancel subscription services.
There are some signs that there might not be much ideological difference between Slater and Ferguson. For instance, Ferguson applauded Trump for picking Slater last week, though his praise focused on her antagonism to “Big Tech,” which is an arena most conservatives agree on antitrust, given the perceived slights that tech has made against conservatives.
Lipsky said, however, that whatever differences there might be between Ferguson and Slater philosophically, he had no doubt that the current era of antitrust was over.
“I’m confident that the Lina Khan approach will quickly die. The details of how and when will have to be worked out,” Lipsky said. “I am equally confident that the approach to Big Tech will need to keep the pressure on but we’ll need to see how close that pressure will be tied to traditional antitrust analysis as opposed to companies making decisions based on their political opinions.”
The disagreements within the Republican Party over what to do on antitrust, however, run even deeper than what stance the FTC ought to take on issues like noncompete clauses or subscription cancellations. Some would like to see the FTC in its current form done away with in its entirety.
Sens. Mike Lee, R-Utah, and Chuck Grassley, R-Iowa, proposed the most concrete piece of legislation aimed at stripping the FTC of its rulemaking authority in 2021. Their bill would’ve removed the commission’s enforcement authority and increased the budget for the antitrust division of the Justice Department.
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The Heritage Foundation’s Project 2025 also poses the question: “Should the FTC Enforce Antitrust—or Even Continue to Exist?”
“Some conservatives think that antitrust enforcement should be invested solely in the Department of Justice,” Project 2025 reads. “Others think that the post–New Deal expansion of the administrative state has had baleful effects upon our society and earnestly share the hope that it can be greatly curtailed if not eliminated—or that its authority can be returned to the states and other democratically accountable political institutions.”
The same document goes on to lay out a plan for using the government’s antitrust authority to target companies engaging in “corporate social advocacy”, such as diversity programs and environmental, social and governance programs. Other potential targets for the FTC, if Project 2025 is heeded, would be internet platforms that “refuse customers based on their political or social views” or businesses that promise to forgo servicing the fossil fuel or weapons manufacturing industry.
In Lipsky’s opinion, prosecuting companies for hewing one way or another politically is unlikely to hold up in court. He is, however, almost certain that the incoming administration will try to target companies with allegedly left-leaning biases, based on Trump’s rhetoric. And, he suspects both Ferguson and Slater will be willing to follow Trump’s lead in pursuing this end.
