Perhaps the most effective public official in Donald Trump’s administration was Joe Simons, the man the 45th president tapped as chairman of the Federal Trade Commission, the little-noticed antitrust agency. Simons, a young academic whose glittering résumé and Federalist Society membership got him the job, immediately set to work reversing the damage done by swampy Bush- and Obama-era regulators.
It was a tall order. The FTC had effectively lay dormant for decades, often focused on bringing antitrust action against the little guy, like ice-skating teachers, church organists and bull-semen traders. These and many other small-time market actors were forced to sign consent decrees in the 2010s after the FTC went after them. But Simons understood the latent power of his agency, which is supposed to police US markets for fair competition. Under his leadership, the FTC emerged as the tip of the spear in Trump’s campaign against the tech giants and foreign multinationals that were ripping off America.
The very first step he took was meant to both shock and embarrass the old guard: He pushed through a rule barring firms that make products in China and other foreign countries from marketing them under “Made in USA” labels. The move was especially popular with the Trump-supporting farmers and ranchers who had to compete with foreign-raised meat mislabeled as homegrown. The fact that this behavior wasn’t already subject to penalties was outrageous. In 1994, Congress enacted a law authorizing the FTC to promulgate just such a rule, but it took Trump and his man Simons to get it done. “The rule will especially benefit small businesses that rely on the ‘Made in USA’ label,” Simons said, “but lack the resources to defend themselves from imitators.”
But that was just the start. Simons soon reversed 40 years of bad policy at the self-satisfied agency, refiling an antitrust case against Facebook for monopolization, which had been dismissed by an Obama-appointed judge, and issuing a groundbreaking complaint against Amazon. “Joe Simons vs. Jeff Bezos: This Is Big Tech’s Real Cage Match,” blared a New York Times headline.
In alliance with conservative state attorneys general, Simons also took on pesticide monopolists harming farmers and removed the decades-long cover the agency had granted to the pharmacy-benefit-management industry, or PMB: third parties that manage prescription plans for insurers, squeezing unaccountable fees and “rebates” out of the drug market, raising the price of pharmaceuticals—and the ire of conservatives and small business. Plus, the FTC under Simons went after a New York private-equity firm for pillaging Texas patients by inflating the cost of anesthesia. He sued to block a data broker, Kochava, from surveilling people at their houses of worship.
Simons, like Trump, maximized his authority to go after Big Pharma. He issued an obscure but important policy statement on a form of fraud by pharmaceutical firms that use expired or sham patents to extend their monopoly power over simple long-standing products like asthma inhalers, which cost significantly more in the United States than they do abroad. This change drew on legal arguments first put forward by Ted Cruz, when he was the head of the policy and planning division at the FTC in the early 2000s.
All this antitrust activity predictably enraged big-money, elite Democrats. It became routine among many congressional Democrats to vilify and harass the FTC chairman. One Democratic colleague on the commission, Christine Wilson, resigned angrily, calling Simons a fraud and a liar, a disgrace to the agency, delighting Big Tech and its congressional allies. One left-wing group even published a cringe-poem titled “How Joe Simons [Almost] Stole Christmas.”
Actually, I’m just kidding.
Not about the policies: That all happened. But it happened, and is happening, under Lina Khan, the Democrat appointed by President Biden to run the Federal Trade Commission. In fact, every single thing I just told you is true, even the weird, stupid poem about Christmas—except you have to reverse the political-party labels and substitute Khan’s name for that of Simons.
The account above doesn’t begin to exhaust Khan’s policy reforms at the FTC. In addition, she has sought to ban non-compete agreements that prevent employees from quitting their jobs and going to work for a rival for higher pay or better conditions—or if, say, their woke employer enforces a vaccine mandate. She reversed the lax merger guidelines that allowed Big Tech platforms like Meta to consolidate smaller platforms and censor users’ content.
Sometimes her actions were symbolic but nevertheless important, as when she repudiated the ESG-embellished deals that firms would often bring to the commission, attempting to use progressive sloganeering to cover up their market-power grabs. Writing in The Wall Street Journal, Khan declared that her agency would no longer allow firms to close unlawful mergers based on dubious claims about social, environmental, and governance benefits.
Of course, these aggressive actions didn’t come without bitter reaction from Wall Street and the bipartisan pro-corporate establishment. Old antitrust hands belittled Khan, including some like former Jones Day partner and Department of Justice antitrust lawyer Joe Sims going as far as insulting her age on Twitter. And The Wall Street Journal’s market-fundamentalist opinion pages have published nearly 70 critical editorials hitting Khan, roughly one every fortnight since she assumed office.
Financiers have attacked her as “anti-American and against business” because of her unwillingness to bend. “Anybody talking to dealmakers over the past year or so,” reported the Financial Times, “will have noticed that barely anyone has been capable of hiding their loathing for Khan.” Unsurprisingly, the FT continued, “Wall Street donors to the Democratic Party are using their position of influence to quietly lobby Biden to drop Khan if he gets re-elected.”
Democratic judges have ruled to allow both Facebook and Microsoft to close massive unlawful acquisitions, thus stifling Khan’s efforts to challenge the tech conglomerates. Further, the Supreme Court got involved, ruling unanimously to strip the FTC of authority to fine firms that engaged in fraud or unlawful behavior. The very existence of the commission is now at stake, with Walmart demanding that the courts reconsider the FTC’s “constitutionality.”
The fact that Khan is a Democrat in a Democratic administration—that we can’t imagine a Republican Khan—reveals a structural crisis of the Republican Party. Khan’s track record, while not wholly in sync with the conservative movement, is certainly congruous with large parts of it. Making things in America, cracking down against Big Tech, working to end untrammeled surveillance, and curtailing fraud and gouging by Big Pharma and PBMs are some of the things that Trump promised—and that Khan is actually delivering.
But with rare populist exceptions, Republicans in Washington absolutely despise her, calling her radical, crazy, and a Marxist. Sens. Cruz and Cotton, though they love to rail about Big Tech, ostensibly support antitrust action, and disdain “woke” corporations, have proved deeply hostile to Khan’s FTC, with Cruz accusing Khan of turning the commission into a “weapon of the Biden administration” and Cotton calling her a “callow radical law professor.”
The House GOP is trying to slash the agency’s budget and attach riders to block specific initiatives, such as updated merger guidelines to address Big Tech. Jim Jordan, the aspiring House speaker, has held hearings on the Khan’s supposed lawlessness through his Select Subcommittee on the Weaponization of the Federal Government. In hearing after hearing, Republicans who rail against the collusion of Big Tech and deep-state bureaucrats somehow find it alarming that government-employee satisfaction results have modestly declined at a small agency tasked with regulating Big Tech.
If Republicans were serious about governing, working with Biden administration populists like Khan would be the best way to service their increasingly downscale base and to cement their new “pro-worker” framework into law. Yet large and influential factions of the GOP are unable or unwilling to do so.
There are likely two reasons for their bitterness toward Khan. The first is that, as with Trump wooing voters but enraging donors, Khan is doing things that are broadly popular among the people at large but hated by Wall Street. This donor base is bipartisan, and plenty of Republicans are deeply enmeshed in the K Street big-money world. Indeed, in the race for political dollars, private equity, which supported Biden in 2020, is turning to the right, in part to thwart Khan.
The second reason is more fundamental, and has to do with a party in ideological transition. The older establishment of the GOP—represented by figures from Senate Minority Leader Mitch McConnell to Jordan to former Vice President Mike Pence—is sincerely libertarian, and understands the use of public administrative power as the only real threat to liberty. Since the financial crisis, Washington has been suffused with more and more anti-monopoly populist rhetoric, but the establishment has brushed it off as meaningless symbolism.
Khan, however, represents the actual policy implementation of populist economics. Younger GOP politicians like Sens. Josh Hawley and J.D. Vance and Rep. Matt Gaetz disagree with McConnell and are upfront about seeking to turn the Republican Party into a working-class political coalition, including by building new administrative tools to do so. Indeed, Gaetz and Khan were on a Newsmax podcast in August discussing the threats of commercial surveillance.
Where will the GOP end up on policy? There are tantalizing hints that the transition on economics is moving forward, if tentatively and against severe pushback. The first place the new merger guidelines were presented was at a Federalist Society event, where George Mason law professor Todd Zywicki admired them as a “moderate” way to split the difference between traditional Chicago School conservatives and a newer populist sentiment.
Intriguingly, a few weeks ago, the Senate Commerce Committee held a hearing with new Republican nominees to the FTC, Virginia Solicitor General Andrew Ferguson and Utah Solicitor General Melissa Holyoak. These will be the minority GOP representatives on the FTC, and they will point the direction for the party on antitrust, consumer protection, and competition policy more broadly. Both were picked by McConnell and so are linked to the GOP establishment. Yet unlike the previous Republican commissioners, they are neither obvious libertarians nor openly hostile to Khan.
For instance, both have experience litigating against Google on antitrust grounds, a significant change from Trump appointees like Noah Phillips and Christine Wilson, both of whom voted against his FTC bringing an antitrust complaint against Facebook. Unlike Phillips and Wilson, Ferguson has argued that Big Tech is the “defining competition question of our time,” and linked censorship of conservatives to consolidation, rather than wokesters in the boardroom: “It is a lot easier for the government to control the conduct of the individual citizen, if it only has to coerce a couple of market participants.” Holyoak, a mother of four, talked about children and surveillance, telling the Senate that “kids should not have to give up all their data just to do their homework.” These statements suggest a break from the traditional GOP orthodoxy.
At the same time, Ferguson and Holyoak will have to deal with parts of the big-money GOP establishment that yearns for Khan’s head on a platter. More worryingly, both signaled discomfort with the use of public administrative power, which at some level simply can’t be avoided to address problems like Big Tech. Plenty of Republicans, including the lead law enforcers of their states, signed an amicus brief arguing that the FTC itself is unconstitutional. Still, both also told the Senate Commerce Committee they want Congress to at least partly reverse the Supreme Court’s slashing of the FTC’s 13(b) authority to fine fraudsters, cutting against the idea that the FTC’s existence is anathema to the Constitution. This kind of two-steps-forward-one-step-back routine is perhaps inherent in a party in transition. And it suggests that a more fundamental shift in a genuinely populist direction may well be unavoidable.
Ultimately, if the Republican Party is to become a working-class vehicle, it will need to go far beyond playing footsie with wielding government power. To truly govern in a way that will satisfy their base and the public at large, conservatives are going to have to find their own Lina Khan. But until they do, they can start by working with the one in office right now.