Needs Congress

Lina Khan knows what she can do and what she can’t do in her new job as chair of the Federal Trade Commission, which along with the antitrust division of the Justice Department is responsible for ensuring fair competition in business. What she can do is enforce antitrust laws. What she can’t do is go beyond the laws as they are written. When I interviewed her and her Columbia Law School colleague Timothy Wu for a Bloomberg Businessweek article in October, Khan emailed me to say that “if the laws are misinterpreted by courts, Congress is the only actor that can fix their mistakes.” Not the FTC or Justice. That’s why President Biden’s appointment of Khan to head the FTC on June 15, just hours after she was confirmed by Congress as a commissioner, may be only the second most important development in antitrust over the past week. Even more important may be the five bills introduced on June 11 by House Democrats and Republicans that would, among other things, force Amazon.com, Apple, and other tech giants to sell or exit key businesses. The bills would toughen merger reviews for tech companies, prohibit them from offering certain products and services, and restrict how they treat other businesses that depend on their platforms. According to Bloomberg’s story on the legislation, one of the House bills, the “Ending Platform Monopolies Act,” would prohibit tech platforms from owning a business that competes with other products or services offered on the platform. Such a provision, if passed, would bar Amazon from selling its own branded products, Amazon Basics, for example, or Apple from offering Apple Music, or Google from providing specialized search services in travel, local businesses, and shopping. Taken as a whole, the legislation “would lead to the biggest reform of competition laws in the U.S. since the first antitrust statutes were passed in the late 19th century,” wrote my Bloomberg colleagues, David McLaughlin and Rebecca Kern. NetChoice, a trade organization for Big Tech, is arguing that Khan, 32, will politicize antitrust enforcement. “Our federal agencies, and the commissioners that serve them, should be neutral and impartial arbiters of economic analysis, rather than political bodies trying to change American law. Legislating and lawmaking is and must remain the duty of our congressional representatives, nowhere near the halls of our nation’s agencies. Sadly, the nomination of an activist to the Federal Trade Commission threatens its long-standing impartiality,” Carl Szabo, the group’s vice president and general counsel, wrote June 15. Khan would undoubtedly deny that she wants to change antitrust law at the FTC. Congress, though, certainly can. If the House bills get through Congress in anything like their current shape, the tools she’ll have to crack down on Big Tech will become far more powerful. It’s a good time to be Lina Khan.