Story on the Washington Examiner website here: Republicans cautiously open to Big Tech critic Lina Khan being Federal Trade Commission member
Senate Republicans Wednesday expressed cautious openness to supporting progressive Biden Federal Trade Commission nominee and vocal Big Tech critic, Lina Khan, highlighting the unique bipartisan agreement to rein in tech companies.
No Republicans expressly said they would support Khan’s nomination, during a Senate Commerce hearing on her nomination on Wednesday. But multiple GOP senators agreed with the Columbia Law School professor on key tech issues and her approach to the commission’s authority. Unlike with many nominees of President Joe Biden, Republicans were not hostile or aggressively against Khan.
Instead, they praised her approach to limiting the power of tech giants such as Facebook, Google, and Amazon, which among other companies, have become a bete noire for Republicans, who contend the platforms discriminate against conservatives.
Republican Sen. Ted Cruz of Texas said he “looks forward to working” with Khan on Big Tech issues, indicating he expected a successful confirmation process for her. Cruz said he wanted to work with her and other FTC commissioners to promote and ensure transparency from Big Tech.
The commission is a federal agency in charge of enforcing competition law and the protection of consumer rights.
Republican Sen. Roger Wicker of Mississippi extended Khan an olive branch by discussing the views she has in common with conservative Supreme Court Justice Clarence Thomas. Wicker asked Khan about how she overlaps with Thomas on Big Tech issues like how platforms should be more like common carriers or businesses of public accommodation, such as movie theaters or retail stores, which can't discriminate against consumers.
Khan is an antitrust law professor at Columbia, where she has focused her research on technology markets. She previously worked as an aide to Democratic FTC Commissioner Rohit Chopra and was a top adviser on the House Judiciary Committee's antitrust panel, which conducted a major investigation in 2019 and 2020 into abuse by Big Tech platforms. Khan won a wide following in the tech policy world as a student at Yale Law School in 2017 from her article, "Amazon's Antitrust Paradox," in which she argued the traditional benchmark of whether a company had a monopoly, higher prices, did not account for what she called anti-competitive behavior on behalf of the retail giant.
The antitrust panel investigation by the FTC, which Khan helped guide, concluded that expansive reforms are needed for large tech platforms, including banning them from competing with smaller companies that are dependent on their services in certain markets. This could mean, for example, that Amazon could not sell the similar products that smaller firms first invented and sold on the Amazon platform.
Republican Sen. Josh Hawley of Missouri went so far as to tell the Washington Examiner on Wednesday that he was “very impressed” with Khan’s record and that he had no major issues with her at the moment. When it came to Biden's 21 Cabinet nominees, Hawley only supported two, the lowest in the Senate.
Sen. Mike Lee, a Republican from Utah, who has been a vocal critic of Khan in the past, was encouraged by her understanding and partial support of the consumer welfare standard, the principle that business activity is only anti-competitive if consumers are harmed, primarily by price increases, rather than alleged harms to specific competitors or other harmful factors.
Thus far, Lee and Khan have had opposing viewpoints on the consumer welfare standard, with Khan being in favor of expanding the definition of antitrust law beyond just the consumer welfare standard and Lee finding it to be sufficient for protecting consumers.
Lee asked her about whether factors within competition law such as innovation, price, and consumer choice in regard to products and services should be taken into account when making decisions at the FTC. Lee said Khan’s answers to questions of his on these subjects were “great to hear, that’s fantastic.”
Antitrust laws are meant to protect consumers from anti-competitive mergers and business practices. The trade commission and the Justice Department are responsible for antitrust enforcement primarily through investigations, lawsuits, penalties, and fines.
Tennessee Republican Sen. Marsha Blackburn was one of the only GOP members to have concerns about Khan, citing parts of her background and lack of experience.
“I’m concerned about whether Ms. Khan is ready to be a federal trade commissioner,” Blackburn told the Washington Examiner. “While I am interested in her opinions on regulatory policy in the privacy and data security space, I’m not sure I will be able to get to 'yes' on her nomination.”
Some House Republicans have also expressed support for Khan, which does not happen often for Democratic presidential nominees.
"I think Lina Khan's nomination to the FTC could be good for regulating the tech companies, it signals some healthy activism in this realm," Republican Rep. Darell Issa of California told the Washington Examiner.
"I would also be in support of her and others at the FTC going to court and using litigation when it comes to antitrust behavior, monopolistic behavior, rather than using new laws to reinterpret antitrust,” Issa added.
If confirmed by the Senate, Khan would join the five-member trade commission at a time when it is expected to feature more aggressive antitrust enforcement, especially with regard to Big Tech, now that it is set to receive bipartisan support for funding and resources.