Why Bother to Confirm Two Republican FTC Commissioners?

September 23rd, 2023

Two nominees for the Federal Trade Commission – Andrew Ferguson, Solicitor General of Virginia and former chief counsel to Senate Majority Leader Mitch McConnell, and Melissa Holyoak, Solicitor General of Utah – had a Senate confirmation hearing this week that, like the best of airplane flights, was uneventful.

As their nomination goes to the Senate floor, some pessimistic observers might ask: Why bother?

After all, Ferguson and Holyoak will be in a permanent 3-2 minority. They will be unable to stop more of Chair Lina Khan’s string of ill-founded and ultimately doomed antitrust lawsuits. Would it be better for senators who uphold traditional antitrust over progressive theories (the wackiness thereof likely to be on full display in Tuesday’s FTC case against Amazon) to take their marbles and go home?

As Sen. Ted Cruz noted in his questioning of Rebecca Kelly Slaughter, up for reconfirmation after a five-year-term, how is it that the FTC, which once was the gold standard among federal agencies in employee ratings, skidded to the absolute bottom for two years under Chair Lina Khan?

This raises the thought: Wouldn’t it be better to let the FTC, which now has disastrously low ratings for the “integrity” of its leadership, to just sit there and stink?

It is tempting.

But there are many more good reasons for senators to vote to confirm Ferguson and Holyoak. As former Commissioners Christine Wilson and Noah Phillips demonstrated, it is important to have two inside observers of goings-on at FTC. The revelations about the internal squelching of debate and dissent among agency experts, the consolidation of rulemaking power in the Office of the Chair, the realignment of processes to be controlled by Chair Khan, all came to light when the FTC had commissioners skeptical of Khan’s power-hungry administrative style and ideologically eccentric views on antitrust.

Moreover, as signs increase of an agency in turmoil, with ethical questions about Chair Khan’s reign, it should help to have two people present to report on internal developments in that agency.

Finally, there are signs of daylight between the extreme positions taken by Chair Khan and at least one Democratic Commissioner, Alvaro Bedoya. In early May, Commissioner Bedoya took issue with Khan’s attempt to unilaterally rewrite the terms of the 2020 court-ordered consent decree to turn the screws on Meta beyond what was allowed by law. “There are limits to the Commission’s order modification authority,” Commissioner Bedoya wrote.

While champions of traditional antitrust are not holding our breath, we ask is it possible that we might see sometime in the next few years a split in which a bipartisan majority at FTC votes to uphold the consumer welfare standard and the rule of reason instead of radical antitrust?

At the very least, the Senate should confirm Andrew Ferguson and Melissa Holyoak so that we will have at least two watchdogs watching America’s watchdog agency.