Lina Khan Has Some Explaining To Do

On Thursday, Federal Trade Commission Chair Lina Khan will testify in front of the House Judiciary Committee. Khan is the tip of the spear in President Biden’s mission to expand government control over the economy and weaponize the executive branch to push progressive policy. 

Lawmakers have an opportunity to put Khan on the record on a number of different issues, some of which are below: 

Misleading Congress on Recusal

1. Bloomberg recently reported that FTC ethics official Lorielle Pankey formally recommended that you recuse yourself from the FTC’s lawsuit to block Meta from acquiring Within, a virtual reality fitness company. Pankey based her recommendation on you “repeatedly calling for the FTC to block future acquisition by Facebook,” which Pankey said “would raise a question in the mind of a reasonable person about Chair Khan’s impartiality as an adjudicator in the commission’s Meta/Within merger.”
   
   
   • When Congresswoman Cathy McMorris Rodgers asked if there were “any instances where you’ve not followed the FTC’s Designated Agency Ethics Official’s advice,” you answered “no.” Do you remember that?
     
     
   • During your confirmation hearing, Sen. Mike Lee asked you to explain the situations which would lead you to recuse yourself from a case. You responded “I would seek the guidance of the relevant ethics officials at the agency and proceed accordingly.” Do you remember that?
     
     
   • The Bloomberg report indicates that after consulting with your hand-picked general counsel, you ignored Pankey’s advice and continued your involvement in the Meta/Within case. How long did it take you to decide that you were going to remain involved in the case? What does that process look like?
     
     
   • Based on your answers to both Rep. Rodgers and Sen. Lee, do you believe you lied to or otherwise misled Congress when you said that you’d abide by the recommendations of ethics officials when deciding to involve yourself in a case? Why or why not?
     
     
   • Why was any mention of Pankey’s letter redacted from former Commissioner Christine Wilson’s dissent in the Meta/Within case? Did you personally order Cmr. Wilson to redact her dissent?
     
     
2. The FTC recently sued Amazon for allegedly making it too difficult for consumers to cancel their Prime memberships. While your record of comments against Facebook are well-documented, your record against Amazon is arguably more extensive. You made your bones in progressive circles with “Amazon’s Antitrust Paradox,” a paper that called for Amazon’s breakup.
   
   
   • Have ethics officials recommended that you recuse yourself from the FTC’s new case against Amazon?
     
     
   • Media reports indicate that a larger antitrust case against Amazon is forthcoming. Have ethics officials recommended that you recuse yourself from the FTC’s forthcoming case against Amazon? If ethics recommends that you recuse, will you do so?
      
     
3. Have you been asked to recuse yourself from any other pending FTC lawsuits? 

Squandering Agency Resources on European Misadventures and Shoddy Cases

1. You have just asked Congress for historic budget increases of $160 million, a 37% increase. And in every testimony that you’ve given to Congress, you have cited staffing shortages and insufficient resources as basis for this increase. Yet in April, the FTC and Department of Justice Antitrust Division jointly announced that the agencies are sending staff over to Europe to assist with implementing the Digital Markets Act.
   
   
   • How is this an appropriate use of taxpayer resources? If the agency is so cash-strapped, why prioritize these trips to Europe when there are better ways to spend taxpayer resources?
     
     
   • How much does it cost to send an FTC staffer to Europe? How long are they there for? What expenses are they being reimbursed for?
     
     
   • What exactly are staffers doing in Europe? How often are they required to report back to the FTC on their work?
     
     
   • According to the New Yorker, you work remotely from New York City. Given that you run the agency from NYC, why do you need to physically send staffersto carry out their work in Europe?
     
     
2. You have launched a number of different antitrust cases that have failed in court. 
   
   
   • How much money has the Meta-Within case cost to prosecute in terms of staff hours, legal expenses, travel and accommodations, opportunity cost?
     
     
   • How much money has the Illumina-Grail case cost to adjudicate and prosecute in terms of staff hours, legal expenses, travel and accommodations, opportunity cost?
     
     
   • How much money has the Microsoft-Activision case cost to prosecute in terms of staff hours, legal expenses, travel and accommodations, opportunity cost?
     
     
   • How much money has the case into Amazon Prime’s cancellation policies cost to prosecute in terms of staff hours, legal expenses, travel and accommodations, opportunity cost?
     
     
   • An FTC staffer privately complained that you have a tendency to set aside facts and the law when bringing cases. You yourself have argued that antitrust enforcers need to avoid the “pathology” of waiting for the “most immaculate set of facts” before they move forward. When do you determine that enough is enough?  
     

Using Taxpayer Money To Push Progressive Activism

• On June 29 of this year, New York Times’ The Daily published a podcast about you, that was generally positive regarding your meteoric rise from law student to the agency entitled “Is Washington Finally Ready To Take on Big Tech” praising the Biden administration for taking on Big Tech. 25 minutes in, the reporter says that you are “taking an approach that doesn’t make [her] think of lawyers, it almost makes [her] think of activists.”
  
  
  • Why should Congress not be troubled that the perception of your strategy to the public is signaling that the current head of a federal agency is using your taxpayer dollars to fund cases that are the sort that an activist would take as opposed to an attorney?
    
    
• Commissioner Rebecca Kelly Slaughter has called for an “equity, inclusion, and anti-racist” agenda in antitrust enforcement. As you know, antitrust law under the consumer welfare standard is focused on promoting competition and consumer welfare as opposed to pushing a policy agenda. 
  
  
  • Do you agree with Slaughter’s call for a “equity, inclusion, and anti-racist” lens for antitrust enforcement? Why or why not?
    
    
  • If so, how has the agency worked to implement this agenda during your tenure?
    
    

• You previously argued that “you think doing a rulemaking on non-competes…could be an important tool to help address some of the structural racism issues because non-competes can disproportionately hinder labor mobility among lower-income workers.” Since then, the FTC has embarked on non-compete rule making that multiple legal experts argue that the agency overstepped its boundaries in pursuing this rulemaking, with Eugene Scalia going as far as to call it a “breathtaking power grab” due to its expansive scope, using federal authority to ban the sort of noncompete agreements that predate America itself in their legality.  To what extent is this rule making power grab inspired by your desire to tackle this anti-racist agenda? Are executive branch power grabs justifiable if they are done in the name of anti-racism?
  
  

• Slaughter has also said that antitrust cannot be value neutral. For example, if they cannot be value neutral, which sector of the population has attained the least value from the general rulemaking or enforcement actions that have come out of the FTC? Which portions of the population have been the focus of attaining value from the FTC’s work? Which portions have been neglected in favor of others?
  
  
• On July 10th, you joined a demonstration in NYC with striking Writers Guild members.
  
  
  • Is there precedent for FTC chairs participating in union strikes? Does the FTC planned to get involved in this dispute in any formal way?

• Did you take PTO to participate in the demonstration? 
  
  

• If you were at a union strike, a greater mass gathering than anything that you could experience at the FTC offices, then your excuse for working remotely cannot be explained by a looming concern over COVID. Why were you in New York as opposed to Washington DC working alongside FTC staff? So what is the reason for your continued insistence on working virtually, if not related to the pandemic?
  
  

Plummeting Staff Morale And Replacing Experts With Unpaid Consultants

1. In the 2022 Best Place To Work rankings, the FTC’s overall score ranked them as the 7th worst place to work out of 27 midsize agencies with a 2022 Engagement and Satisfaction Score of 67.3 was slightly boosted by higher scores within the subdivisions of the FTC’s Bureau of Consumer Protection (72.1), Office of the Executive Director (80.3), and Regions (75.4). The one division that considerably tanked the overall score came from the FTC’s Bureau of Competition’s 2022 Engagement Score, which was a disastrously low 57.3.
   
   
   • Why does it seem that the staffers of the Bureau of Competition have a significantly lower satisfaction score for your leadership than the other sub-agencies?
     
     
   • When it comes to the Bureau of Competition’s perception of their Senior Leaders per that survey, their score for the effective leadership from their senior leaders was a stunningly low 30.5. This score went down from your first year as chair, the most senior leadership position at the agency, when you scored a measly 37.6. However, these issues seemed to only start when you arrived, as in the three years prior to your arrival, the Bureau of Competition gave its senior leaders scores of 72.9, 73.2, only to be capped off in 2020 with an incredible 85.8. Compare this to the Bureau of Consumer Protection, in which the senior leaders scored a higher yet still failing score of 44.5. Additionally, the Bureau of Competition scored their direct supervisors at an astoundingly high 92.2. Thus, the issues that exist at the FTC seem to primarily exist among the Bureau of Competition staffers, and while those staffers are highly satisfied with their direct supervisors, they seem consistently frustrated with senior leadership, and that consistent frustration only appears to be getting worse.
     
     
   • Why do staffers at the Bureau of Competition, more than any other subagency, appear consistently frustrated with the efficacy with your leadership and why do these numbers seem to keep getting worse year after year?
     
     
2. Declining agency morale has led you to install hand-picked, unpaid consultants from left-wing nonprofit groups to carry out your agenda. According to an inspector general report from last year, you failed to provide these consultants with adequate guidance and constraints on the scope of their work.
   
   
   • How many unpaid consultants are currently in FTC employ? What are they working on? How often do you interact with them? 
     
     
   • Are unpaid consultants working on the Amazon or Microsoft cases? 
     
     
   • What guidance have you given the unpaid consultants regarding the scope of their work?