Senate Commerce Plans Khan's Confirmation Hearing in April

The Senate Commerce Committee plans a confirmation hearing in April for FTC nominee Lina Khan (see 2103220056), Chair Maria Cantwell, D-Wash., told us, calling Khan a “strong nomination.” Meanwhile, Commissioner Christine Wilson and former FTC officials credited acting Chair Rebecca Kelly Slaughter for forming a new rulemaking group within the General Counsel’s Office (see 2103250056).

Republicans “absolutely” share an openness to hear Khan’s views, ranking member Roger Wicker, R-Miss., told us: “If she wants to work with us to rein in Big Tech, she might end up being my best friend.” His comments aren’t surprising, said Cantwell. “He’s a lawyer. He probably wants to hear various strategies there.”

Khan has shown encouraging signs, and research is needed, said Sen. Josh Hawley, R-Mo.: “I like what I see in her background so far. We’ll see, but I want to talk to her. What she has on the record on tech, her general position on monopoly power, all of that is encouraging. I need to do more research, but what I see so far, I’d say it’s fairly encouraging.”

In a statement for this report, Wilson applauded the FTC’s restructuring, expressing disappointment the agency didn’t embrace the Donald Trump administration’s “deregulatory agenda more fully.” The rulemaking group’s output should be “judicious and restrained, particularly in the competition space,” she said. “The development of antitrust law through a common law approach ensures that the field embraces new economic learning and keeps antitrust enforcement predictable, administrable, and credible rather than subjective and politicized.” Rules will inevitably become outdated due to changing markets, so rulemakings should be “narrowly tailored to addressing market failures,” she said.

The rulemaking group is a positive step that will allow the agency to better develop centralized expertise, ex-Competition Bureau Director Bruce Hoffman, now at Cleary Gottlieb, told us. If people object to it, it’s likely due to concerns about the substance of new rules to come. “This is a sensible approach,” said Hoffman. “There’s no reason why it wouldn’t make sense to have some centralization of that function and some enhanced ability to develop institutional knowledge and institutional memory and expertise in rulemaking that’s not so specific to a bureau, more holistic.”

The general counsel has “legal expertise in the administrative law principles that need to be applied to provide defensible FTC rules,” said ex-General Counsel Alden Abbott, now a senior research fellow at George Mason University's Mercatus Center. It makes sense for the commission’s lawyer to oversee rulemaking development, he said, noting the general counsel defends the agency’s interests in court and provides draft assistance for its legal opinions. It "will give future Commission rulemakings the best chance for success,” he emailed. He said “as a matter of substance, any proposed substantive rule should be evaluated on its individual merits, employing sound economic analysis.”

Hoffman agreed, noting there will be varying opinions about what rules ultimately emerge. “If most people think about this as a process and knowledge and expertise exercise, then I think probably most people would say it’s a good idea,” he said. The agency will have more consistent involvement from general counsel lawyers, who can immerse themselves in different rulemaking authorities, he said.

Previously, the agency had general consumer protection rulemaking authority, most of which would have to proceed under onerous Magnuson-Moss procedures (see 2103190055). The agency also has specific statutes authorizing rulemaking, like the Children's Online Privacy Protection (Act) rule. And competition rules can be issued using more standard rulemaking authority under the Administrative Procedure Act. But competition rules aren’t easily amenable to the APA rulemaking process, said Hoffman, noting he can’t remember the agency’s last APA competition rulemaking. “If you can build up more procedural expertise and have a more comprehensive look at rules” across bureaus, he said, “it could help you identify areas where rulemaking would be good and determine what procedures would be effective in getting rules made.” Most competition rulemaking has been made under Hart-Scott-Rodino Act authority.