Antitrust scholar and Big Tech critic Lina Khan was sworn in as chairwoman of the Federal Trade Commission Wednesday after President Joe Biden unexpectedly elevated her to the agency’s top post.
Khan, 32, was confirmed by the Senate to serve as a commissioner Tuesday. She’ll take the agency’s reins from acting Chairwoman Rebecca Kelly Slaughter, a Democrat appointed by former President Donald Trump.
With the addition of Khan the commission now has a 3-2 Democratic majority. Democrat Rohit Chopra is expected to leave the commission soon. He has been nominated by Biden to lead the Consumer Financial Protection Bureau, and Biden could have used his departure to nominate a chairperson for the FTC, making Khan’s elevation a surprise.
“Khan was nominated only as a commissioner, had a hearing only as a prospective commissioner, and was confirmed only as a commissioner — and then was instantly promoted to chair,” Stephen Calkins, a law professor at Wayne State University in Michigan and a former FTC general counsel, told CQ Roll Call.
“Maybe this process was the result of a good faith last-minute decision by the White House,” he said in an interview. “But if Republicans perceive that this was a bait-and-switch, it could make for some strained relationships on Capitol Hill.”
The selection of Khan to lead the FTC follows Biden’s decision to appoint Tim Wu, another progressive antitrust scholar and Big Tech critic, to serve as an adviser on the National Economic Council.
Khan was most recently an associate professor of law at Columbia University. She became a prominent figure in the “New Brandeis Movement,” which is aimed at getting Washington policymakers and regulators to fundamentally rethink the U.S. approach to antitrust enforcement, particularly in light of emerging concerns about Big Tech companies.
Proponents of the movement espouse a 21st century version of the populist competition policies once championed by Supreme Court Justice Louis Brandeis. Some have referred to it as “hipster antitrust.”
“Irrespective of how recent Neo-Brandeisian ideas are, this contested approach is now coronated as a governmental policy through this key [FTC] position,” said Aurelien Portuese, director of antitrust and innovation policy at the Information Technology and Innovation Foundation, a Washington think tank whose board includes tech executives.
Prior to her position at Columbia, Khan was counsel to the House Judiciary Antitrust Subcommittee, where she helped lead an investigation of competition in the technology sector. The probe concluded that Amazon.com Inc., Apple Inc., Facebook Inc. and Alphabet Inc.’s Google all wield monopoly power in their respective markets. She also was legal adviser to Chopra.
“It is a tremendous honor to have been selected by President Biden to lead the Federal Trade Commission,” Khan said in a statement. “I look forward to working with my colleagues to protect the public from corporate abuse. I’m very grateful to Acting Chairwoman Slaughter for her outstanding stewardship of the Commission.”
Khan’s swearing in came a day after the Senate cleared her to serve as a commissioner. She was confirmed on a vote of 69-28, with 21 Republicans voting in her favor. The vote reflected strong support on Capitol Hill from both sides of the aisle for tougher antitrust enforcement, especially when it comes to Big Tech.
“Given her background and the beehive of activity on the Hill — with lots of antitrust bills being dropped — I think you will see the FTC be both more creative and aggressive,” said Philip Bartz, an antitrust partner at Bryan Cave Leighton Paisner LLP. “This might come in the form of litigation, and possibly even rulemaking in the antitrust space, which the FTC has thought about since the 1970s but has never done.”
“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,” Lee said in a statement in March. “Her views on antitrust enforcement are also wildly out of step with a prudent approach to the law.”
A spokesperson for Lee, who serves as the top Republican on the Senate Judiciary antitrust subcommittee, didn’t immediately respond to a request for comment on Khan being named FTC chair. A Blackburn spokesperson declined to comment.
Khan first rose to prominence after writing an antitrust research paper focused on Amazon’s business conduct while attending Yale Law School. She argued Amazon engaged in anticompetitive practices that escaped U.S. antitrust scrutiny, including “predatory” pricing of goods or services at such a low level that rivals can’t compete. The paper also called for an overhaul of the U.S. antitrust approach to help regulators with reining in powerful tech platforms.
“We think this is a huge step towards bringing about change to runaway corporate concentration,” said Alex Harman, competition policy advocate for consumer advocacy group Public Citizen. “We are very pleased with her appointment and are excited to support what we hope is an aggressive agenda.”