Outgoing FTC Commissioner Rohit Chopra advocated for Khan’s nomination.
Lina Khan, an antitrust expert, Columbia law professor, and thorn in the side of Big Tech, has been nominated to fill one of the commissioner roles at the Federal Trade Commission under President Joe Biden, the White House announced on Monday.
If confirmed by the Senate, Khan will fill the commissioner seat currently held by Rohit Chopra, a Democrat who Biden has tapped to run the Consumer Financial Protection Bureau (CFPB). Recode first reported in January that Chopra was advocating for the nomination of Khan, and that one person familiar with deliberations considered her a “frontrunner” for the nomination. Khan served as a legal fellow at the FTC in Chopra’s office in 2018 and at the CFPB as a summer associate while Chopra worked there.
The Capitol Forum first reported on Khan’s traction.
The FTC plays a key role in investigating companies’ business practices to preserve competition by enforcing federal antitrust laws, and to prevent consumer harm. The agency also reviews major company acquisitions and mergers in an attempt to preserve industry competition, and it can sue companies and impose penalties for violating federal laws. For example, the FTC in the last year has separately sued the companies that own the Gillette and Schick razor brands, respectively, to stop them from acquiring or merging with up-and-coming rivals.
The FTC is led by five commissioners, but Biden has two roles to fill with Chopra leaving and current Republican FTC chair Joe Simons recently announcing his resignation. When those two spots are filled, Democrats will have a 3-2 majority at the top of the commission and can decide to file lawsuits or agree to settlements with companies alleged to have violated antitrust laws.
If Khan is confirmed by the Senate, it would mark a blow to the Big Four tech companies — Amazon, Facebook, Google, and Apple — that have been trying to avoid having the government rein in their unmatched economic and societal power. Khan played a crucial role as legal counsel for the House antitrust subcommittee’s 16-month investigation into the Big Tech giants, and in producing the 400-page House Democrat report that alleged that all of the tech giants engage in anti-competitive practices and need to be reined in.
Khan burst onto the scene in antitrust circles in 2017 when she penned a legal paper dubbed “Amazon’s Antitrust Paradox,” which spread widely among proponents and critics alike. It emphasized the need for enhanced antitrust enforcement and argued that current antitrust doctrine is ill-suited to rein in internet giants like Amazon. Over the last few decades, US antitrust enforcers have for the most part favored business practices that keep consumer prices low; companies like Amazon, with its low prices, or Google and Facebook with their “free” services, have until recently avoided much scrutiny.
Google is already facing three antitrust lawsuits filed late last year by the Department of Justice and the attorneys general of dozens of states. And the FTC and other state attorneys general have filed antitrust suits against Facebook that call for the company to unwind its Instagram and WhatsApp acquisitions. Recode has previously reported that the Federal Trade Commission also continues to probe various Amazon business practices to determine if Jeff Bezos’s corporation is violating antitrust laws.
While one FTC commissioner’s worldview alone won’t directly lead to the commission taking action against the tech giants that it otherwise wouldn’t have, Khan’s appointment could signal that the Biden administration is ready to take a harder stance against Big Tech than the Obama administration was. Biden recently named another critic of Big Tech, Tim Wu, to the National Economic Council as a special assistant to the president for technology and competition policy. Progressives in favor of increased regulation of Big Tech had been concerned by reports that Biden is considering two officials — who have previously advised tech giants — for the top antitrust role at the Department of Justice, which can also bring suits against companies for violating antitrust laws.
It remains to be seen whether Biden’s antitrust appointments at the DOJ and FTC will end up being a patchwork of officials with varying views of how big of an issue corporate consolidation is in tech and beyond, or whether they will be aligned in a belief that the power and business practices of these giants are also a threat to the economy and consumers. Either way, it’s hard to think of an appointment that worries the tech conglomerates more than Khan’s, both because of her expertise in scrutinizing their practices and the huge role her writings and counsel have already played in influencing lawmakers’ view of the threat Big Tech poses.
Update, March 22: This article was originally published on January 22, 2021, when Recode reported that Khan was a frontrunner for the nomination.