Biden FTC alters mission statement, raising fears of ambitious anti-business agenda

Former Federal Trade Commission officials warn expanded regulatory aims bode ill for consumers, competitive markets.

Published: December 8, 2021 2:29pm

Updated: December 8, 2021 11:38pm

The Federal Trade Commission (FTC) is considering changes to its mission statement that signal the government agency will be more hostile to private business and less concerned about the welfare of consumers moving forward, according to former officials.

The controversial changes can be found in a draft of the FTC's strategic plan for fiscal years 2022 to 2026. The document was released last month for public comments but has thus far received little attention beyond industry groups and antitrust specialists. Feedback was due Nov. 30.

Totaling 30 pages, the proposed manifesto outlines the agency's goals and vision for the next few years, but the edits to the mission statement are what's prompting strong resistance.

The FTC's current mission statement says the agency seeks to protect "consumers and competition by preventing anti-competitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity."

However, the revised version drops the protection of "competition" from its core objectives, omits the qualifying phrase "without unduly burdening legitimate business activity," and adds "policing unfair competition." 

The complete, edited version under consideration says the FTC's mission is "protecting the public from deceptive and unfair business practices and policing unfair competition through law enforcement, advocacy, research, and education."

Nowhere in the document does the FTC mention or explain the edits.

These proposed edits have triggered backlash among experts and former FTC officials, who warn the change in language could be an ominous sign for the direction of the agency.

"Historically, the FTC saw itself as a complement to, not an adversary of, the free enterprise system," said Theodore Gebhard, a former senior antitrust policy adviser at the FTC. "Enforcing the rules of competition worked to this end. 

The Biden FTC, he fears, has ambitions far beyond serving as a neutral umpire maintaining a level playing field. The FTC under new Chairwoman Lina Khan "seems to be taking a view that the agency needs to regulate the private sector far more extensively than merely assuring legitimate competition and honest dealing," he warned.

President Biden nominated Khan to be a commissioner of the FTC in March and appointed her chair of the agency upon her Senate confirmation in June.

Gebhard expressed concern that the changes to the FTC's mission statement not only reflect a troubling change in attitude toward free enterprise but also "will lead to overly burdensome FTC regulations that will actually impede the competitive process."

Another former FTC official told The Deal, a publication that covers corporate transactions, that the agency may be trying to become a "super regulator" whose authority extends far beyond protecting consumers and competition.

Critics have noted that the addition of "policing unfair competition" to the mission statement and the replacement of "protecting consumers and competition" with "protecting the public" would give the FTC a vague and much larger mandate with less clear constraints.

"The FTC's mission statement has reflected this understanding that a balanced approach promotes competition and benefits consumers," wrote Andy Jung, a legal fellow at TechFreedom. "Now, the FTC is abandoning balance to gain more power over the economy."

The former FTC official who spoke to The Deal said the agency doesn't have a "public interest mandate to just generally protect the public in all aspects of life" yet seems to be seeking one.

Some experts are lamenting the latest steps taken by the FTC, noting consumers, not just businesses, will be affected.

The tweaks are "unfortunate," according to Alden Abbott, a senior fellow at George Mason University's Mercatus Center who served as the FTC's general counsel from 2018 to early 2021.

Abbott said the FTC should — and traditionally does — enforce antitrust and consumer protection laws without burdening legitimate business activity. However, he continued, the language in the draft plan indicates the FTC is less hesitant to interfere in legitimate business activity.

And when the FTC imposes such burdens, Abbott said, consumers suffer through higher prices or lower quality products and service. Antitrust laws, he explained, are ultimately meant to promote the welfare of consumers, and the tone set in the FTC's draft plan suggests less regard for the average consumer's well-being.

The FTC said it had no comment on its strategic plan or the proposed changes to its mission statement.

Resistance to the proposed changes follows similar backlash against the FTC under Khan, who has argued the FTC's antitrust enforcement has been too weak for decades. She and fellow Democrats have cracked down on mergers and rescinded a 2015 policy which, they argued, unduly limited the FTC's ability to challenge certain unfair business practices.

"Some of the FTC's policy announcements in recent months do indeed suggest a new direction — one that places less emphasis on preserving legitimate business activity, and more on pursuing policy goals through aggressive interpretation of FTC authority," wrote Kelley Drye & Warren LLP, an international law firm.

Critics accuse Khan of being too aggressive against businesses, interfering in the affairs of legitimate activity rather than focusing on protecting competition. Such accusations have helped fuel partisan tensions within a commission that has traditionally valued bipartisanship.

Last month, one of the FTC's two Republican commissioners took a veiled shot at Khan, a Democrat, for "sidelining" and "disdaining" staffers.

"Leadership routinely fails to solicit the advice of our experienced staff," Christine Wilson said at an American Bar Association conference.

Khan responded with a commission-wide internal memo, saying she cares about FTC's mission and promises to build bridges "as we chart this path forward together."

Another Biden FTC nominee, Alvaro Bedoya, a Georgetown Law professor and privacy advocate, has also raised partisan hackles. He tweeted in February that U.S. Immigration and Customs Enforcement is an "out-of-control domestic surveillance agency that peers into all our lives," raising the eyebrows of Republicans.

The FTC said it had no comment on Bedoya, whose nomination is still being considered by the Senate.

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