Business leaders advocated for the removal of Biden's primary business administrator. They could soon see their desire fulfilled.
Lina Khan has riled up the corporate world.
She utilized one of the world's most influential government agencies, the Federal Trade Commission, to challenge substantial corporate mergers and proposed new regulations aimed at expanding workers' and consumers' rights.
As a result, prominent business leaders desired her dismissal. With the arrival of the Trump administration, they could potentially achieve their goal.
On Tuesday, President-elect Donald Trump revealed that he will elevate Andrew Ferguson, a present Republican commissioner on the FTC, to the role of agency chair. Trump also intends to nominate Mark Meador, a former antitrust staffer for Utah Republican Sen. Mike Lee, as an FTC commissioner.
Trump's decision is likely to be seen as a positive by some businesses, but not all, and certainly not by the tech sector - whom Ferguson has criticized harshly and, in the case of Google, has taken legal action against while serving as Virginia's solicitor general.
Based on his record, the direction the FTC might take under Ferguson's leadership can be inferred.
Anti-monopoly, Anti-regulation
As an aide to Senate Republican Leader Mitch McConnell, Ferguson has been a vocal critic of large monopolies. He has supported the creation of a nationwide data privacy law and has described concentration in the tech industry as "the competition question of our time."
These positions suggest some alignment with the current FTC's priorities, particularly in acknowledging the role that tech companies play in the modern economy and the significance of vigorously enforcing the nation's antitrust laws.
However, his main differences with Khan revolve around the power of the FTC itself and whether it can regulate corporations through writing regulations or if it requires Congress to pass legislation first.
In one instance, Ferguson disagreed with Khan on the FTC's groundbreaking nationwide rule prohibiting clauses in worker contracts that prevent employees from moving to competitors. The 2024 rule, which immediately attracted criticism from business leaders who called it a government power grab, was not within the FTC's authority to establish, according to Ferguson's dissent.
“We are not a legislature; we are an administrative agency wielding only the power lawfully conferred on us by Congress,” Ferguson wrote.
This dissent highlights a long-standing disagreement between Democrats and Republicans over the extent of the FTC Act - the congressional charter outlining the commission's powers. In this instance, Ferguson argued that the "best interpretation" of the law was that it only empowered the FTC to regulate itself, not private businesses.
With Ferguson at the helm, the FTC appears set to continue pursuing monopoly and consumer protection cases, including the antitrust case to dismantle Meta filed during the first Trump administration and two cases against Amazon.
Underlining the likelihood of Ferguson being tough on tech is his previous role as Virginia solicitor general, wherein he, along with the Justice Department and several other states, sued Google for monopolizing the market for digital ad technology. This significant case targeted the $31 billion portion of Google's business that matches website publishers with advertisers, and went to trial this fall. A decision may be announced within weeks.
However, it's worth noting that Ferguson seems unlikely to engage in the type of sweeping rulemaking that Khan championed.
‘Free speech’
It's becoming apparent that Ferguson may seek to utilize the nation's antitrust laws to compel social media platforms to promote conservative speech even more than they currently do.
The extent to which this effort might progress in the courts is unclear, but Ferguson has hinted at his intentions in congressional testimony and a statement following Trump's announcement this week.
“At the FTC, we will end Big Tech’s campaign against competition and free speech,” Ferguson stated on Tuesday. Mainstream tech platforms have insisted that they do not censor speech based on political viewpoint, and some companies have even actively promoted right-wing views, but conservatives have long accused them of anti-conservative bias. This, in turn, has resulted in weaker platform enforcement against election lies and misinformation.
Ferguson outlined the fundamental connection between antitrust and political speech during his Senate confirmation hearing last year.
Concentration in tech makes it easier for governments to pressure social media companies to remove content, Ferguson told Missouri Republican Sen. Eric Schmitt. Schmitt, as the state's attorney general in 2022, led a high-profile lawsuit about alleged social media censorship that ultimately reached the Supreme Court's final term.
The case targeted the Biden administration's pressure on social media companies to remove Covid-19 and election misinformation, which Missouri, Louisiana, and a few private parties argued was a First Amendment violation against conservative speech.
“It is much easier for the government to control the behavior of individual citizens if it only needs to apply pressure to a few market participants,” Ferguson told Schmitt. “That is why the merger of private power is potentially so dangerous, because if the government can coordinate with only a few actors, it is much easier to control the rest of us. And I think that the litigation your state launched revealed how this could potentially work in real time.”
Earlier this year, the Supreme Court determined that the White House could continue flagging what it believes to be misinformation to social media platforms for now, while the case continues in the lower courts. During oral argument, the justices expressed deep skepticism towards the states' legal arguments, suggesting that they may lead to unintended consequences like the government being unable to warn social media platforms about threats to public officials.
Ferguson has expressed his opinions on social media regulations in various ways as well. During his time serving as Virginia's solicitor general, he joined forces with officials from 17 other states to back Montana's controversial move to prohibit TikTok on personal devices across the state. Though Trump has declared he'd prevent a nationwide ban on TikTok, it remains uncertain how this would be achieved.
Ferguson's background indicates that, while he and Khan both hold a degree of mistrust towards technology, Ferguson's motivation stems from conservative concerns about online platforms, differing from Khan's primary focus on tech's impact on the economy.
Shared characteristics
Nonetheless, Ferguson and Khan do seem to share some commonalities. In a conversation with the Mercatus Center, a libertarian think tank, Ferguson endorsed certain initiatives instigated by Khan's FTC.
He emphasized that a significant overhaul of the US government's merger guidelines – guidelines that set out the circumstances when mergers could be viewed as anti-competitive – was not a radical departure from established court rulings.
While Ferguson may have objections to some aspects of the new guidelines, he believes it's not fruitful to repeal them with every change in administration.
"I believe a lot of what's in the guidelines is actually restating things from old guidelines and case law, and thus promoting predictability," he noted. "However, there are aspects in the guidelines that are pushing the boundaries a bit."
"If everyone believes that the guidelines simply embody the preferences of a specific party, then they'll become useless to everyone," he added.
In another part of the interview, Ferguson emphasized the importance of the separation of powers and the safeguards designed to preserve it. Congress enacts laws, the administrative state enforces them, and judges review whether the enforcement is fair based upon a thorough analysis of the law.
As a result, Ferguson comes across as an institutionalist, which is markedly distinct from the individual who is set to promote him.
The business community may view Trump's appointment of Andrew Ferguson as a positive due to his criticisms of large monopolies and his intent to enforce antitrust laws. However, his stance on regulatory powers might differ from Lina Khan's, as he believes the FTC requires Congressional approval before writing regulations to regulate corporations.
Ferguson's background in law and his role as Virginia's solicitor general, where he took legal action against Google for monopolizing the digital ad technology market, suggests he will be tough on tech companies, particularly in antitrust cases.
