WASHINGTON (Legal Newsline) - Federal Trade Commission Chair Lina Khan will face a hostile audience tomorrow morning when she appears before the Republican-run House Judiciary Committee to explain, as the committee puts it, her “record of enforcement actions and politicized rulemakings.”
That record hasn’t been good so far – most recently, a judge rejected the FTC’s challenge to Microsoft’s $75 billion purchase of Activision – but Khan could be quietly building a lasting legacy by stocking the agency with like-minded lawyers and bureaucrats. Senior attorneys are “leaving at apace not seen in at least two decades,” according to Bloomberg, with 71 staff attorneys leaving since 2021.
Replacing them are people like Elizabeth Wilkins, who joined the agency as chief of staff and director of the Office of Policy Planning in February 2022. A Yale Law School grad like Khan, Wilkins belongs to a generation of policymakers who believe antitrust law should do more than simply ensure consumers have access to the greatest variety of goods and services at the lowest price.
Dubbed neo-Brandeisians for their embrace of the expansive legal theories of the late U.S. Supreme Court Justice Louis Brandeis, they see antitrust law as a tool for increasing the power of labor unions and breaking up corporations they believe have gotten too large.
“Worker mobility and worker power will be at the forefront of merger policy,” Wilkins said in a March speech to the Communications Workers of America. Dismissing the idea some mergers benefit consumers by driving efficiency and reducing costs, Wilkins said: “`efficiency’ is nowhere in the antitrust laws.”
Another of Khan’s high-profile hires is Sarah Miller, who became Special Advisor to Khan in March. A University of Chicago graduate, Miller previously ran the American Economic Liberties Project, a group she founded in 2020 with the financial assistance of eBay founder Pierre Omidyar and George Soros’ Open Society Foundations. Like Khan and Wilkins, Miller rejects consumer welfare as the paramount goal of antitrust law in favor of reducing the concentration of industries and increasing the power of organized labor.
In a 2020 article in the New York Times titled “She Wants To Break Up Big Everything,” Miller said: “If you look at meat processing, if you look at media, if you look at plagiarism detection software, if you look at baby formula, if you look at pacemakers, everywhere you look you see markets that have been rolled up and monopolized.”
Miller worked for the Treasury Department during the Obama administration and was deputy economic policy director for Hillary Clinton’s 2008 presidential bid. She married Faiz Shakir, later campaign manager for Bernie Sanders, in a wedding officiated by Democratic Party power broker John Podesta. She also helped launch the Washington Center for Equitable Growth, which accuses large companies like Walmart of using their market power to drive down wages and employment, now a key consideration in Khan’s merger analysis.
While still executive director of the American Economic Liberties Project, she said bank consolidation led to fewer branches in poor neighborhoods, increased debt, evictions and “a rise in burglary and property crime.”
“It has been shown to depress real estate values and inhibit local construction, throttling economic development, and correlated to rise in unemployment, declines in median income, and worsening income inequality,” she said at a symposium reported by American Banker.
In an example of the tight connections between progressive nonprofits and federal regulatory agencies in the Biden administration, Miller’s spouse Shakir took over as head of Economic Liberties after Miller left, while also running More Perfect Union, a pro-union media organization where he earned $221,000 in 2021. More Perfect Union loudly supports the FTC under Khan. A post in advance of her Congressional hearing says: “Reps attacking FTC Chair Lina Khan are funded by big tech.”
A Freedom of Information Act search of the 300 or so hires since Khan took over as FTC chair in June 2021 shows other like-minded officials including Mark Russell Suter, a former associate with the class-action law firm Berger Montague who co-authored a 2021 article about “Antitrust as Antiracism” that suggested using antitrust law to “fill gaps left by antidiscrimination law.”
Antitrust law “can offer relief when those with capital -- disproportionately white men -- distort markets to harm workers in general -- in many industries, disproportionately people of color,” the article states.
Another attorney hire, Jake Walter-Warner of the Technology Enforcement Division, interned for New York State United Teachers and was an intern at the International Labor Organization as a Cornell undergraduate. Other staff hires in the last two years have strong connections to the Democratic Party and the Biden administration or progressive non-profits such as the Center for American Progress and the American Civil Liberties Union.
Every presidential administration attempts to stock federal agencies with like-minded officials, of course. But staff positions, especially for attorneys in agencies with enforcement powers, traditionally have been thought of as being nonpolitical. Critics of the FTC under Khan – including Democratic FTC Commissioner Alvaro Bedoya, who publicly objected to her enforcement efforts against Meta – say she’s turning the agency into a political operation.
“It’s often said that personnel is policy,” said Robert Bork Jr., President of the Antitrust Education Project and son of Robert Bork, one of the chief architects of the consumer-welfare theory of antitrust. “The replacement of nonpartisan, expert staff with younger people who hail from far-left NGOs and progressive centers of power is a sure sign that Lina Khan is playing the long game.”