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How the FTC chair is alienating the left, right and center

In a recent ABC news interview reviewing the tenure of the Federal Trade Commission’s Lina Khan, the chairwoman seemed proud that her activism at the antitrust-enforcement and consumer-protection agency has earned an unusual range of fans, including far-left Sen. Bernie Sanders of Vermont and far-right Rep. Matt Gaetz of Florida. However, it’s not surprising that she’s brought these legislative cranks together. They and Khan have lots in common: They’re ineffective in getting legislation passed, don’t work particularly well with others, and are usually sure they’re right regardless of what the law says.

More notable is how Khan’s policies are becoming less popular among less incendiary members of the left, right and center.

First, take a look from the left. Recently, Khan ventured into an area where even left-leaning European Union regulators hadn’t bothered to go: the luxury handbag industry.

U.S. Fashion brand Capri Holdings (which owns Versace, Jimmy Choo and Michael Kors) and Tapestry (which owns Kate Spade, Coach and Stuart Weitzman) are seeking to merge and compete more effectively with European luxury brands like LVMH, which is eight times larger than the merged company would be, according to the Wall Street Journal.

Tapestry confirmed that the merger — designed to make these American-owned brands more marketable in 75 countries — has been cleared unconditionally by the European Commission and Fair Trade Commission of Japan. But in the U.S.? Khan’s response came out of far-left field and far out of line with not only 40 years of antitrust consumer-welfare law in the U.S., but with often-stifling, left-wing EU competition standards.

Second, look from the right. This year, House Judiciary Chairman Jim Jordan (on whose committee Gaetz serves) released a detailed and scathing report on Khan’s FTC tenure. It highlighted how Khan consolidated power in her office and diminished the input and economic expertise of professional staff while promoting her long-held left-wing views. Apparently, her controversial chief of staff — who ordered all 1,100 FTC staff to cancel public appearances and rout all press requests through her — was even avoided by Biden administration officials.

The report disclosed that one manager was concerned that “outside influences … have an undue impact on our priorities, investigation management, and enforcement decisions … we should never make an enforcement-related decision for the sake of PR.” Complaints abounded about the micromanagement of investigations from her and her office that lacked sound legal reasoning and led to predictable losses that were in turn blamed on staff.

FTC staff turnover has been unusually high. Even some who share Khan’s philosophy have headed for the exits because of her “only I can fix it” mentality. As the Judiciary report highlights, “Khan needed to consolidate the FTC’s power to push through her agenda without dissent from staff or other Commissioners. To accomplish this, Khan centralized power in her office despite the objections of staff.”

Sen. Ted Cruz, R-Texas, who voted to confirm Khan’s appointment and is himself a former high-ranking FTC official, wrote of his concern regarding employees’ “sinking morale and deepening lack of confidence in FTC leadership.” Staff surveys showed less than half (49%) agreed that FTC leaders “maintain high standards of honesty and integrity,” a shocking 38% lower than 2020 during the Trump administration.

And finally, from the center. When something isn’t broke, Khan can be counted on to try and fix it anyway. Take popular tech products and services that Americans use daily — whether it’s our Apple phones, Google search, or Amazon Prime. Khan and her front office consistently believe they have better ways to run dynamic and innovative businesses.

Khan has largely ignored the long-standing consumer welfare standard and economic analysis that determines if a business’ conduct or mergers have harmed or would harm consumers in any relevant market. Instead, as one of her law school mentors, Robert Hockett, explained to CNN last year: “She’s sort of trying to overturn a very well-entrenched orthodoxy and decades worth of court decisions that have been influenced by it.” Laughably, Khan suggested in her ABC interview that her approach was “conservative.”

Our legal system is designed to follow a basic and centrist orthodoxy: one person doesn’t get to overturn the law. That’s why for 40 years, through Republican and Democratic administrations alike, the consumer welfare standard has prevailed and our courts have logically upheld it.

That’s not the logic we hear from Sanders, Gaetz or Lina Khan. They advocate top-down changes and largely fail at the collaborative process of legislating. When asked whether she’d like another term, Khan said she felt like she was “just getting started.” Better if this is the beginning of the end.

Barbara Comstock is a former congresswoman from Virginia and currently senior adviser at Baker Doneslson.

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