By Bob Barr and Jason Altmire
With the Supreme Court recently expressing clear disapproval of many of the Federal Trade Commission‘s operating procedures, Congress must aggressively steer this key regulatory agency back to its original mission of protecting consumers.
When we served in Congress, we relied on the FTC’s challenges to artificial monopolies and predatory business activities to conduct our own legislative business. Its work and guidance helped us construct fair regulatory frameworks that worked for businesses and consumers alike, regardless of how wealthy, poor, big, or small they were and irrespective of how politically well-connected they might or might not have been.
Today, however, the FTC is placing its political policy agenda above the rule of law and the interests of the consumers it is charged with protecting.
It would be unfair and wasteful for people to wait years, or even decades, for challenges to further regulatory abuses by the FTC and other agencies to reach and be decided by the courts. The ball is in Congress’s court.
Congress still oversees the FTC, and the federal legislative body has an obligation to step in and reform the regulatory agency it created more than a century ago. Most importantly, Congress must roll back the FTC’s new enforcement policies and operational standards — standards that the commission itself has admitted do not necessarily represent the interests of consumers.
The real problem started two years ago, when the FTC rescinded its antitrust enforcement policy that properly had kept its actions “guided by the public policy underlying the antitrust laws, namely, the promotion of the consumer welfare.” Sadly, in 2022, the commission, under the leadership of Chairwoman Lina Khan, replaced that consumer-centric enforcement policy with new, anti-consumer, anti-business standards.
Khan’s revised policy allows the FTC to go after any company or business tactic the agency’s commissioners deem “coercive,” “exploitative,” “abusive,” or “restrictive” — all undefined terms.
Making matters worse, the commission also decided it could deviate from antitrust precedent when taking regulatory action. In short, it is rewriting the rulebook whenever it fits the Biden administration’s political agenda.
By annulling its long-standing consumer-welfare standard, the commission opened the door to target any business behavior it disfavored, including mergers and acquisitions that had the effect of reducing consumer prices.
More than 100 career attorneys at the FTC, and one of the presidentially appointed commissioners, have resigned in the wake of the commission’s politically motivated anti-business and consumer-harming policies.
Congress, however, still has oversight authority over the commission, and it is high time to exercise it.
First, the House should begin public oversight hearings to take a hard look at how Khan and her cohorts are mismanaging what historically ranked as one of the best midsized government agencies in terms of workforce satisfaction. Her politically motivated management of the FTC has resulted in the commission’s once stellar workforce ranking dropping precipitously.
In a series of recent decisions, the Supreme Court has provided Congress a veritable road map by which to reform federal regulatory processes.
In late June, the court rendered its decision in SEC v. Jarkesy, which invalidated the administrative state’s use of in-house administrative law judges instead of federal jury trials to handle certain proceedings. Earlier this term, the court’s Axon v. FTC decision specifically took aim at unfair administrative trials held by the agency.
More broadly, Congress should use the Supreme Court’s abandonment of the “Chevron” decision as leverage to rein in the FTC. Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce effectively ended the 1984 Chevron approach that long had permitted regulatory agencies to interpret vague regulatory standards in laws passed by Congress themselves.
It would be manifestly irresponsible for Congress not to seize this historic opportunity to review the agency’s rule-making powers and actually determine which ones are and are not consistent with congressional intent and Supreme Court decisions. This process hopefully will be followed by congressional action to repeal or defund regulations found to be beyond the scope of congressional intent or inapposite to judicial mandate.
These recent Supreme Court cases should serve as a wake-up call that no federal agency is above the law — not even the powerful FTC. The sooner Congress acts to restore the FTC to its proper role of protecting consumers, the better off America’s consumers will be.
Jason Altmire, a Democrat, represented Pennsylvania’s 4th District in the U.S. House of Representatives from 2007 to 2013, where he served as the chairman of the House Small Business Subcommittee on Oversight and Investigation.
Bob Barr, a Republican, represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003, where he served as a senior member of the House Judiciary Committee. He served as the United States attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s.