By: Katie McAuliffe
Barely two weeks into the job, in what seems like a hurried attempt at a grand debut of regulatory change, Federal Trade Commission Chairwoman, Lina Khan, set the tone for her term at the commission: no transparency, no discussion, and rule by a simple majority.
The Commission rushed through a series of bad proposals that will invariably harm consumers, raise prices, and stunt innovation. But what may be more problematic than the proposals themselves is the process by which they were approved. The Commission’s agenda took up changes to the Made in the USA Rule, Changes to Section 18 Rulemaking Procedures, resolutions to streamline enforcement investigations, and whether or not to rescind a statement of enforcement principles regarding section 5. Not one of the items passed on a bipartisan basis. That is very unusual for the FTC in particular.
Associate Justice of the Supreme Court Louis Brandeis is credited with saying “sunshine is the best disinfectant.” This is not a rule of medicine but an observation about how organizations behave. There is a voluminous body of law dedicated to ensuring transparency or “sunshine” for federal agencies. Transparency ensures agencies are acting in the interests of the People. This meeting embodied the opposite of transparency.
The meeting was announced just a week before it was held. That is the minimum amount of time required by statute, as FTC commissioner Noah Phillips pointed out. The Items on the agenda were also made available just one week before the meeting. Even the commissioners themselves did not have more than one weeks notice of what they would be voting on. Most agencies do these things many weeks or even months in advance. Multiple times throughout the meeting, Commissioners Noah Philips and Christine Wilson made motions to allow sufficient comment period so that the public can participate. As they pointed out, consumers benefit when multiple voices can be heard. These motions failed however, along party lines.
After all of the items were considered and motions to ensure public participation were rejected, the Commission then allowed public comment after everything was settled. This does not live up to the spirit of the law which embraces public comment before rules are made. If this meeting is indicative of the rest of Chairwoman Khan’s tenure at the FTC – we can expect more harmful rules and policies to be railroaded through to push an ideological narrative at the expensive of American consumers and businesses.