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'Why I'm Resigning as an FTC Commissioner' 139

Posted by msmash from the closer-look dept.
Christine Wilson, a Republican-appointed commissioner at the Federal Trade Commission, writing for The Wall Street Journal: Much ink has been spilled about Lina Khan's attempts to remake federal antitrust law as chairman of the Federal Trade Commission. Less has been said about her disregard for the rule of law and due process and the way senior FTC officials enable her. I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing, and I refuse to give their endeavor any further hint of legitimacy by remaining. Accordingly, I will soon resign as an FTC commissioner. Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose -- many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.

Consider the FTC's challenge to Meta's acquisition of Within, a virtual-reality gaming company. Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer. She would now sit as a purportedly impartial judge and decide whether Meta can acquire Within. Spurning due-process considerations and federal ethics obligations, my Democratic colleagues on the commission affirmed Ms. Khan's decision not to recuse herself. I dissented on due-process grounds, which require those sitting in a judicial capacity to avoid even the appearance of unfairness. The law is clear. In one case, a federal appeals court ruled that an FTC chairman who investigated the same company, conduct, lines of business and facts as a committee staffer on Capitol Hill couldn't then sit as a judge at the FTC and rule on those issues. In two other decisions, appellate courts held that an FTC chairman couldn't adjudicate a case after making statements suggesting he prejudged its outcome. The statements at issue were far milder than Ms. Khan's definitive pronouncement that all Meta acquisitions should be blocked. These cases, with their uncannily similar facts, confirm that Ms. Khan's participation would deny the merging parties their due-process rights. I also disagreed with my colleagues on federal ethics grounds.
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'Why I'm Resigning as an FTC Commissioner' More

'Why I'm Resigning as an FTC Commissioner'

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  • Enablers, you say? (Score:4, Insightful)

    by Sebby ( 238625 ) on Friday February 17, 2023 @04:47PM (#63302097)

    I have failed repeatedly to persuade Ms. Khan and her enablers to do the right thing

    Interesting how a Republican would complain about Democrats being "enablers", given Republicans have themselves enabled each other in massive crimes (including that of one former Republican President).

    • Re:Enablers, you say? (Score:4, Insightful)

      by Whateverthisis ( 7004192 ) on Friday February 17, 2023 @05:44PM (#63302265)
      Your post is bigotry. By judging this woman's comments simply by a group she associates with, you completely dismiss her point without even trying to understand it. Here's a test: if you're critiquing someone's comments simply because they are associated with a group, try changing the word to "blacks". If it sounds racist or bigoted, than it is. It doesn't matter if you agree with the groups' politics or not, distilling one person's views down to their association with any organization is lazy, bigotry, and frankly intellectually poor.

      Yes, Christine Wilson is associated with Republicans, having donated to Republican election campaigns. She is also a highly experienced attorney in corporate law including M&A law and anti-trust law. Therefore her opinion on this particular subject carries the weight of experience. Nor is she wrong with her facts:

      1) Prior case law regarding anti-trust investigations have required FTC chairpersons to recuse themselves if there is any chance of impartiality (Schweiker v. McClure, 1988).

      2) The commission's own ethics rules require this as well.

      Those are facts. Now granted, those facts were dismissed by a judge recently but on the grounds that Meta is no longer Facebook and Khan's statements were that "Facebook should not be allowed to acquire any companies". That's pretty damned weak and will probably get turned over on appeal.

      That not withstanding, Wilson's statements are based on legal facts, and her opinion that Khan has already ruined any sense of impartiality is at least a logical opinion given her statements. It's simply stupid for an antitrust lawyer let alone the FTC Chairperson to say a company shouldn't be allowed to acquire other companies. Rather each acquisition should be viewed on it's own merits, and perhaps every one gets shot down, but that is due process. But given Khan has openly stated in Congressional reports as a staffer "that Facebook should be blocked from any acquisitions", well that doesn't sound like due process at all that's just targeted bans. How would you feel if a government staffer said "Sebby is no longer allowed to make any statements or change employment?" just based on some things you might do in the future? It doesn't sound right to be singled out for treatment like that, does it?

      So just dismissing her statements outright because she's donated to Republicans and is a Republican appointee is just brain dead logic. The FTC is supposed to be impartial and has Commissioners appointed by both sides, but all the Republicans have left under Khan and reportedly the workplace morale at the agency is very low [uschamber.com] because of her [realclearmarkets.com]. All of these facts about morale drop, her troublesome statements, and many other issues point to a real issue that is non-partisan and entirely personal about Ms. Khan that are worth at least looking at.

      • Re:Enablers, you say? (Score:4, Interesting)

        by MatthiasF ( 1853064 ) on Friday February 17, 2023 @06:19PM (#63302361)

        "That not withstanding, Wilson's statements are based on legal facts, and her opinion that Khan has already ruined any sense of impartiality is at least a logical opinion given her statements."

        Which legal facts? I read the entire opinion piece and she presents nothing. It's 90% rhetoric and 10% unconfirmed accusations.

        Also, to call someone else bias and then only post links to heavily biased sources is like calling the pot calling the kettle black.

        US Chamber of Commerce is heavily right-wing and so is the RealClearMarkets.com website.

        • Since you're copying and pasting part of the GP's post to quote it that means you must have seen the repeated citations not only to established case law but the commission's own explicit regulations for ethical conduct.

          Which means your entire post was made in a level of bad faith that we don't even have words for. You're literally quoting someone who literally cited case law and ethical regulations right there in front of your case and pretending you weren't given exactly those citations.

          That's not even lyi

          • Is this satire? I can't tell.

            Because nothing you said is true and the tone makes it feel like satire.

          • Since you're copying and pasting part of the GP's post to quote it that means you must have seen the repeated citations not only to established case law but the commission's own explicit regulations for ethical conduct.

            Which means your entire post was made in a level of bad faith that we don't even have words for. You're literally quoting someone who literally cited case law and ethical regulations right there in front of your case and pretending you weren't given exactly those citations.

            That's not even lying, it's baldfaced gaslighting.

            On January 11, 2022, Judge Boasberg denied Meta’s motion to dismiss the FTC’s amended complaint. Judge Boasberg applied the prosecutorial standard for voting out a federal court complaint, and ruled that due process and federal ethics obligations did not require Chair Khan’s disqualification.

            Sorry, what?

        • "That not withstanding, Wilson's statements are based on legal facts, and her opinion that Khan has already ruined any sense of impartiality is at least a logical opinion given her statements."

          Which legal facts? I read the entire opinion piece and she presents nothing. It's 90% rhetoric and 10% unconfirmed accusations.

          Also, to call someone else bias and then only post links to heavily biased sources is like calling the pot calling the kettle black.

          US Chamber of Commerce is heavily right-wing and so is the RealClearMarkets.com website.

          Literally everything Wilson throws at Khan in her dissent makes Facebook look bad, that's why.
          https://www.ftc.gov/system/fil... [ftc.gov]

          It smells just like old Gatesian Microshoft trying to throw dirt on someone during the Netscape thing because of something they said during the DR-DOS thing.
          Except this spans from Facebook/social media monopoly to Meta/VR monopoly. Poor widdle giant megacorp, someone said the truth about your giant crooked horn and it's unfair they're judging your creepy ass tentacle.

      • Re:Enablers, you say? (Score:5, Interesting)

        by UnknowingFool ( 672806 ) on Friday February 17, 2023 @06:25PM (#63302373)

        Prior case law regarding anti-trust investigations have required FTC chairpersons to recuse themselves if there is any chance of impartiality (Schweiker v. McClure [justia.com], 1988).

        Ummm. That case does not say that at all. Schweiker v. McClure, 456 U.S. 188 (1982):

        a) While due process demands impartiality on the part of those who function in a quasi-judicial capacity, such as the hearing officers involved in this case, there is a presumption that these officers are unbiased. This presumption can be rebutted by a showing of conflict of interest . . .

        In other words, a recusal is appropriate when a conflict of interest can be shown. In this case, the only thing I see is Wilson is complaining that Lina Khan is impartial because . . . she's "partisan". In the case of Meta, I do not read anywhere that there is a conflict of interest like she's owns stock in Google or whatever. Personally I read her words to be "Wah, Lina Khan is a meanie and I'm telling everyone on her."

        • Ummm. That case does not say that at all. Schweiker v. McClure, 456 U.S. 188 (1982):

          Likely simply used ChatGPT to make up a good-enough sounding post to fool the lemmings into modding it up.

          Seems to have worked, unfortunately.

        • Not quite.

          Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer.

          That can easily be construed as implying bias and a legitimate argument can be made for her to recuse from the Meta case. I'll bet Meta uses that point in an appeal lawsuit if the FTC rules against them.

          I'm not saying she's wrong in her opinion on Meta, just that a good argument can be made she is not impartial.

          • The court case specifically says that recusal can be appropriate when shown something like conflict of interest. In this case, there is nothing other than Wilson saying Khan is impartial because Khan presumably did not rule the way Wilson wanted. That is not impartiality being demonstrated; that is disagreement being demonstrated.

          • Not quite.

            Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer.

            That can easily be construed as implying bias and a legitimate argument can be made for her to recuse from the Meta case. I'll bet Meta uses that point in an appeal lawsuit if the FTC rules against them.

            I'm not saying she's wrong in her opinion on Meta, just that a good argument can be made she is not impartial.

            A judge already considered that and dismissed Meta's request for her recusal last year.

            The past statements were specifically about Facebook's social media monopoly, and were more nuanced from what I can tell
            The Open Markets Institute sent a letter to Federal Trade Commission (FTC) Acting Chair Maureen K. Ohlhausen this week calling on the FTC to halt Facebook’s acquisitions of other companies until the agency has carried out a full review of how Facebook’s power and control over information flow

        • Even better, I challenge anyone to explain how this is isn't a bipartisan sentiment. Everyone is ready to take a wrecking ball to big tech these days.

          "calling on the FTC to halt Facebook’s acquisitions of other companies until the agency has carried out a full review of how Facebook’s power and control over information flows threaten national security, basic democratic institutions, and commerce and competition in America."

      • Comment removed based on user account deletion
        • Who is to say that political alignment should not be a protectable characteristic like how the "progessives" claim gender is. Since gender can apparently be altered at any age or for any reason, it seems to follow that political alignment should be a protected characteristic as long as "gender" remains so; particularly since so many tolerant liberals use it for discrimination and hate.

      • Re: (Score:2)

        by Bahbus ( 1180627 )

        I don't give two shits about Wilson's credentials or experience - she's still a fucking retard. Even if she is technically correct on a few specific points, like you mentioned, her use of those points is still stupid. Wilson has never once done anything useful as an FTC Commissioner. So, spare me the "she's very knowledgeable and we shouldn't outright dismiss her" because that is an absolute load of bullshit.

        At the same time, I won't say Khan is necessarily any good either. MOST people who get appointed to

      • Your post is bigotry. By judging this woman's comments simply by a group she associates with, you completely dismiss her point without even trying to understand it. Here's a test: if you're critiquing someone's comments simply because they are associated with a group, try changing the word to "blacks".

        She is a political appointee, the Republicans are the political party affiliation she signed up for, and they were talking about politics.
        You just compared that to prejudice based on skin color. If you are serious, please expand on that.

        Maybe she's not a Republican? Who's knows, it's impossible to tell.
        https://www.wsj.com/articles/f... [wsj.com]
        https://nypost.com/2023/02/14/... [nypost.com]
        https://reason.com/2023/02/16/... [reason.com]
        https://www.washingtontimes.co... [washingtontimes.com]
        https://www.commerce.senate.go... [senate.gov]
        https://fedsoc.org/contributor... [fedsoc.org]
        *shrug*

        You

      • While i give you credit for at least citing a source, you are misunderstanding the concept of fact. It is a fact that a court heard the case you cited. The outcome of that hearing is an *opinion* on what the law is generally and as applied to the facts in that case.

        Whether an how that opinion has relevance to anything kahn has done is subject to more analysis and opinion. And thatâ(TM)s how American Law works.

      • Iâ(TM)m not saying youâ(TM)re wrong but I have limited sympathy for a party that put a rabidly pro-coal lobbyist in charge of Interior. Nobody should be allowed a position of authority over an organization whose mission they have stridently opposed in their professional life, like (it seems) half of Trumpâ(TM)s cabinet was. And a nice chunk of Dubyaâ(TM)s.

      • Another moron who doesn't know the difference between a protected class and freedom of association.

    • We should give her credit for making a good effort at coopting the language and sentimentality of the left.

      What she is really complaining about is the operation of checks and balances. In this case, the legislators and judiciary have made it so easy for corporations to spin so far out of control, and to the detriment of the people generally, that the executive is stepping in to fulfil its constitutional duty to actually govern.

  • Buh bye! (Score:1)

    by Anonymous Coward

    For too long the FTC has rubber stamped business M&A activities. Now we have someone that's substantially more consumer focused.

    Yes, there needs to be a balance: Too focused on business, you end up with the disparity you see now. Too focused on consumers and businesses struggle. Bernie and other progressives think Ms. Khan isn't going far enough... let's let her get things closer to the middle before deciding to go a little farther.

    In other words - I'm OK with Christine leaving and what Ms. Khan is d

    • Re: (Score:2)

      by fermion ( 181285 )
      Reminds me of Trumpâ(TM)s letter in the WSJ after the election

      I am sure a job is waiting on K street. Meta evidently has 25 lobby firms on contract.

    • I'm outside the US so don't follow this stuff too much but the quoted except seems to be a giant whine about some evil political conspiracy that I can't really see, possibly because it's imaginary. Actually given that she's a Republican, probably because it's imaginary. Seems like it'd be no big loss to lose her and instead get someone who'll actually do what the FTC was originally set up to do rather than whine about their politics being offended.

    • She's simply pre-disposed to deny any merger by one company - she's documented her predisposition, she's affirmed her predisposition, and her fellow Democrat regulators have chosen to acknowledge and accept her bias.

      Seems fair.

      • The default response to a merger/acquisition should be âoeno.â The onus should be on a company to demonstrate the advantage to consumers for a merger. Not âoeincreased value to shareholders from efficiency increased by elimination of redundancy.â

  • Actual reason (Score:1, Insightful)

    by rsilvergun ( 571051 )
    there's a Democrat in the Whitehouse and she can't get away with selling out anymore, so she's going to cash out her chips now for a cushy job with some multinational or another.

    Regulatory Capture FTW.
    • Possible that Christine Wilson is motivated as you suggest and that there are also legitimate issues with how Khan is handling her position.
      • Yes, and Iâ(TM)m aware I am as victimized by political propaganda as a Republican. But I have difficulty believing any Republican in office today is fair and level-headed. It seems like you scratch one and find malice, incompetence, or an uneasy truce between the two.

      • Re: (Score:2)

        by djinn6 ( 1868030 )

        Yeah, the problem is she's doing what the person who appointed her wants her to do, rather than bowing to the influence of money like her predecessors. Too bad Meta can't afford lawyers, otherwise her clearly illegal actions would have been brought before the courts already.

  • I don't need a crystal ball (Score:5, Insightful)

    by Powercntrl ( 458442 ) on Friday February 17, 2023 @04:57PM (#63302123) Homepage

    This discussion is bound to turn into a political slugfest. Can we mod the entire article itself as "flamebait"?

    • Re: (Score:3, Insightful)

      by colink1970 ( 6921820 )
      Exactly right. This isn't news, it's a political opinion piece with accusations with no evidence.

  • Needs a better argument (Score:4, Insightful)

    by Improv ( 2467 ) <pgunn01@gmail.com> on Friday February 17, 2023 @04:58PM (#63302129) Homepage Journal

    I have no particular fondness nor dislike for her, but I think we deserve a better argument than this for why she should go. Or what these believed abuses of power are.

    • Re: (Score:3, Insightful)

      by fahrbot-bot ( 874524 )

      Or what these believed abuses of power are.

      Just guessing, but maybe she's complaining because the FTC was trying to do its job, holding companies accountable and to the law?

    • I believe her abuses of power are "She won't do what I want. And her manager won't talk to me."

    • "I know some funny business is being done by my opponents. I can't find anything, so I'm leaving instead of doing my ACTUAL job."

  • Relative (Score:2, Insightful)

    by jythie ( 914043 )
    Ah, so more of this 'my opinions are fact based and impartial, while anyone who disagrees with me is bias! the rule of law should support me and constrain others!' rants.

  • Blocking a Facebook acquisition of some two bit VR developer who only works on one project at a time and who most recently did a work for hire for Facebook ... how the fuck do you justify that?

    If that's the kind of merger they want to block from the major tech companies they need to block them all. Pretty much every acquisition distorts the markets less than this one (hell, the Luxexcel acquisition is far more relevant for the AR/VR market than some software company). I don't see how anyone can not see this

    • Distorts the market more I meant.

    • Because she was right before she was at the FTCFacebook (and Apple, Microsoft, Amazon, Google, Disney, and others) should not be allowed to purchase any companies anymore.

      When every "two bit developer" gets gobbled up by the behemoths, the behemoths can horde all the talent and IP. If we block the behemoths from making such purchases, if the two bit developers are sold, they are sold to companies that could diversify the landscape and make us less behemoth-dependent.

      Without competition (and by competition I

  • That includes anyone who abuses power, but equally includes anyone making baseless accusations for the purpose of controlling the narrative.

    Frankly, I'd like to see the system revised so that nobody who was partisan could be in the FTC. That's not going to happen, regrettably, but at least people should be compelled to offer evidence for their stance, on both sides of the divide. Enough with groundless speculation and rumourmill governance.

  • One interpretation is they both want to act on the law as they wish it to be rather than as the law -is.

    When a court overrules an administrative decision as "not in accordance with the law," that should definitely count against the agency with an appropriate penalty. Otherwise, agencies can pursue a strategy of "here's what we rule, now you have to sue us to get us back into the box."

    • That's an interesting idea but I don't know how you punish an agency or if it would be desirable to do so. You wouldn't want to make it harder for the FBI to catch serial killers if there was some illegal activity exposed in the agency. How do you punish the agency without crippling its effectiveness for the job it's designed to do? Furthermore, many of the anti-government appointees may see sanctions on their agency as a success on top of their illegal activity.

      Perhaps a better way is to make persons withi

      • One possible penalty could be a 'special master' to review policies for legality before they're put into effect. You'd think the agency is doing that, but I suspect sometimes the agency management will override or ignore internal legal advice. And a 'special master' would be an embarrassment to the agency management, so a public 'penalty.'

        (p.s. vi is actually useful, to edit the config makefile file for EMACS :-) )

  • There is a democratic state senator near her hometown in Florida ... could this be the real reason she is leaving the FTC?

  • Disappointed (Score:3)

    by kschendel ( 644489 ) on Friday February 17, 2023 @05:45PM (#63302269) Homepage

    After "enablers" and "abuses of power", I was hoping for some really juicy story of corruption and abuse. Imagine my disappointment that it was apparently all about a non-recusal for a Meta acquisition. Even if I had any sympathy for Meta, this would be basically a yawner.

  • Partisan tribalism undermines any gov't entities (Score:5, Interesting)

    by bjdevil66 ( 583941 ) on Friday February 17, 2023 @05:57PM (#63302293)

    The FTC's issue is a fundamental one. When a government entity can't ultimately do the obviously "right thing" for the people because of partisan politics, it's functionally and fundamentally broken.

    And this goes both ways. The Dems have unethical situations like this one with Lina Khan. The GOP has their meatbag of lies named George Santos they're supporting (just to have a sliver more control over the House). "Be honest" or "by the people, for the people" be damned... it's all about power and winning now.

    In my home state (Arizona), it was only the defection of a frighteningly small minority of AZ Republicans (myself included) that staved off the disaster of electing Kari Lake - another documented liar who lied to get votes - as governor. We put honesty before winning at all costs for the GOP and voted for a Democrat.

    • Re:Partisan tribalism undermines any gov't entitie (Score:5, Insightful)

      by hdyoung ( 5182939 ) on Friday February 17, 2023 @06:29PM (#63302383)
      Thank you. Sincerely. Similarly, thanks to the 3% of national GOP voters who held their noses and switched from Trump to Biden because you recognized that Trump was truly unqualified to lead and that a mistake had been made. Biden ain’t great but he wont steer the ship into an iceberg. I’m sure it hurt to check that blue box. No sarcasm here at all - truly thank you. You took one for team USA and did the right thing.

      I promise to do the same if/when the Dems nominate some sort of genuine left-wing extremist.

    • Re:Partisan tribalism undermines any gov't entitie (Score:5, Insightful)

      by Xylantiel ( 177496 ) on Friday February 17, 2023 @06:51PM (#63302417)
      Sorry, but you seem to have been deceived here. Lisa Khan is apparently being accused of having a conflict of interest just because she previously wrote a policy piece about the topic and is now acting upon those policies. That is not a conflict of interest. That's her job. A conflict of interest would be owning stock in Meta itself or a competitor or being currently involved in litigation. It appears that there is a new rhetorical trick on the right, which is to accuse anyone they disagree with of having a conflict of interest just because that person wrote down their reasoning at some point in the past. But it is no more than a another rhetorical distortion.

      • Lisa Khan is apparently being accused of having a conflict of interest just because she previously wrote a policy piece [when she was legally representing a group] about the topic and is now acting upon those policies.

        I am adding the context there in that she wrote the piece in her role as a lawyer advocating for a client. Apparently representing a client means she must be biased.

    • ... disaster of electing Kari Lake ...

      A well-spoken, attractive shock-jock, spouting the party line of "I have more rights than you": After hearing her 'jerks against the wall' response to the assault of Mr Pelosi (and recognizing she was campaigning to be one of the 'jerks'), I assumed she would win. It's good to learn that voters disapproved of her behaviour.

  • Translation: (Score:3, Insightful)

    by WolfgangVL ( 3494585 ) on Friday February 17, 2023 @06:01PM (#63302309)

    The money dried up. Ima head out.

  • Much ink has been spilled

    Really? This is the first I've read about it. And I didn't even really read about it because of the paywall.

  • Why do people quit when their boss does stuff they disagree with politically? If she cared, she'd stick around to be a thorn in the side and to reduce the damage to society. She's basically becoming an enabler by quitting.

  • It's always suspicious when someone quits so publicly instead of blowing the whistle. If what Khan's FTC is really doing illegal or unethical things, then she has whistleblower protection. Why not do that?
  • Finally! A political appointee fighting for the rights of people! Of course, you need to believe the idiocy that companies are people...

  • Don't let the door hit you in the ass on the way out.

  • TIL that politicians are unethical.

  • Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power.

    It seems to me Wilson was put in place to discredit the democrat colleague, wasn't able to find anything substantial and is now leaving.

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