For years, Republicans claimed that Federal Trade Commission Chair Lina Khan was politicizing her ostensibly independent agency by working too closely with the Biden administration. Days before the election, House Republicans aligned with Donald Trump even put out a scathing report on the subject.
That was then.
In a repeat of the last time Trump took power, Republicans are changing tune to insist that independent agencies like the FTC work in lockstep with the president.
The newest example was a dissent from Republican FTC Commissioner Andrew Ferguson — who won Trump’s nomination to chair the agency after Khan by promising to take on the “trans agenda” and Big Tech — on a new rule clamping down on concert and vacation rental junk fees.
“They can punish Trump’s enemies through the powers that they hold.”
Ferguson did not complain about the rule itself. Instead, he carped that the commission should have waited to give a say to Trump. His dissent could signal how he plans to lead the FTC — and how the Trump administration plans to run the independent agencies put in the crosshairs by the Project 2025 plan.
An FTC beholden to Trump’s whims could pose a special danger given the agency’s sweeping power over business, said James Goodwin, policy director at the Center for Progressive Reform.
“They can punish Trump’s enemies through the powers that they hold. They can reward Trump’s friends through the powers that they hold,” he said. “When you imagine what the FTC is willing and able to do in the service of an authoritarian Trump administration, that takes you to some really terrifying places.”
Killing Surprise Fees
The rule approved by the FTC on a bipartisan, 4-1 vote Tuesday takes aim at an issue that has long enraged customers of Ticketmaster or Airbnb.
A ticket to a hot show or a rental house in a great neighborhood seems to be going for a great price. At the last minute before checkout, though, a platform tacks on surprise fees that spoil the deal.
The rule against surprise fees, which has been in the works for over a year, requires companies to tell “the whole truth up-front about prices and fees,” according to an FTC press release.
Although scaled back from an original proposal that would have applied to far more industries, the rule amounts to something of a swan song for Khan, who has become an unexpected celebrity as FTC chair by taking on big consumer protection cases, blocking mergers, and attempting to break up monopolies.
Those moves reversed decades of bipartisan consensus against aggressive enforcement of antitrust laws that had turned the FTC into a sleepy backwater of the legal world. The Biden administration has touted Khan’s leadership at the FTC as a prime example of how it sought to reorient the economy to benefit consumers instead of big business.
Ferguson Dissents
The new rule was supported by one of the two Republicans sitting on the commission, Melissa Holyoak, a former solicitor general for Utah who was once seen as a contender for the chair position herself.
Ferguson was the lone dissenting vote.
A former staffer for Senate Majority Leader Mitch McConnell, R-Ky., Ferguson has said that the dream of overturning Roe v. Wade got him into politics. And his Senate work included helping shepherd Supreme Court Justice Brett Kavanaugh to confirmation.
Biden nominated Ferguson, who was serving as the solicitor general for Virginia, to serve as one of the FTC’s Republican commissioners last year. He was confirmed by the Senate this March. Some progressives have said they were intrigued by the positions that Ferguson has taken that seem to show skepticism of excessive corporate power.
In the dissent released Tuesday, Ferguson did not quibble with the substance of the junk-fee rule, which he said was supported by “some evidence.” Instead, he took aim at the fact that the commission was acting during the final days before Trump takes office.
“His incoming administration should have the opportunity to decide whether to adopt rules that it, not the Biden-Harris FTC, will be called upon to enforce,” Ferguson said.
The dissent was in line with a number of dissents from Ferguson in recent weeks. Democratic Commissioner Alvaro Bedoya had a sharp reaction to a similar dissent from Ferguson and Holyoak in another case earlier this month.
“The American people expect their government to keep working for them even in periods of transition.”
“We are not on vacation,” Bedoya said. “The American people expect their government to keep working for them even in periods of transition.”
While calling on the FTC to stop issuing rules until Trump takes office might win favor with the incoming president, it is sharply at odds with positions on the agency’s independence that Republicans were putting out just weeks ago. As recently as October, the House Oversight Committee released a report dinging Khan for a supposed lack of independence from the Biden administration.
When releasing that October 31 report, Oversight Chair Rep. James Comer, R-Ky., said that it showed that Khan had “bent the knee to the Biden-Harris White House.”
Since Trump’s election, however, Republicans have shown newfound enthusiasm for the idea of bringing independent agencies under executive control. That vision was laid out in Project 2025, the Heritage Foundation policy document meant to serve as a road map for the next Trump administration.
In Project 2025, former Trump administration official Gene Hamilton said that, in his next term, Trump should take on the “so-called” independent agencies — such as the FTC, Securities and Exchange Commission, and Federal Communications Commission — by mounting a challenge to Supreme Court precedent that prevents presidents from firing their leaders.
Which Ferguson?
Goodwin, of the Center for Progressive Reform, said Ferguson’s dissent suggested that he takes a dim view of FTC independence.
“Historically, they haven’t always been a rubber stamp for the president,” Goodwin said of the commission leaders. “And the reason for that is they know they can’t get fired. They are different, and they are able to exercise some independent judgment. This just suggests that that sort of tradition is not going to occur under his leadership.”
The question now may be which Ferguson the FTC will get when he takes office next year: the one who has occasionally voted for major antitrust actions, or the one who courted Trump’s selection by promising to fight “wokeness” at the agency.
“Historically, they haven’t always been a rubber stamp for the president.”
While seeking the nomination, Ferguson produced a one-page document first reported by Punchbowl News that ticked off culture-war grievances he could pursue using the agency’s powers. He also promised to “focus antitrust enforcement against Big Tech monopolies, especially those companies engaged in unlawful censorship.”
As Khan’s tenure has shown, the FTC can exert enormous influence over the American economy. Last week, a court sided with the FTC and blocked the merger of grocery giants Kroger and Albertsons. Opposition from the FTC has also scuppered mergers involving Amazon, Lockheed Martin, Nvidia, and Berkshire Hathaway.
Last week, the two Democrats who will remain on the commission next year issued a letter questioning what sort of agenda Ferguson would pursue as chair — and noting glaring absences in his one-pager audition for Trump.
“The document does propose allowing more mergers, firing civil servants, and fighting something called ‘the trans agenda.’” they wrote. “Is all of that more important than the cost of healthcare and groceries and gasoline? Or fighting fraud?”
