Huge win for progressives as Lina Khan takes helm at FTC

President Joe Biden elevated Amazon critic and anti-monopoly advocate Lina Khan to chair the Federal Trade Commission on Tuesday, hours after the Senate confirmed her by a 69-28 vote.

She was sworn in just as quickly, the FTC said that evening.

The surprise move gives progressive Democrats both the reins and a majority at the antitrust agency, spurring hopes among critics of Silicon Valley's giants for a new assertiveness from the FTC, which is already pursuing an antitrust probe of Amazon and waging a lawsuit that seeks to break up Facebook's social networking monopoly.

Plans for Khan's elevation as chair came to light when Sen. Amy Klobuchar (D-Minn.) announced the news during a Senate Judiciary antitrust hearing Tuesday afternoon, before any announcement from the White House. Khan replaced Rebecca Kelly Slaughter, who has served as acting FTC chair since January and remains a member of the commission.

Sen. Elizabeth Warren (D-Mass.) praised President Joe Biden's designation of Khan as chair as "tremendous news."

"With Chair Khan at the helm, we have a huge opportunity to make big, structural change by reviving antitrust enforcement and fighting monopolies that threaten our economy, our society, and our democracy," Warren said.

But Republicans blasted the White House's decision to wait until after Tuesday's confirmation vote to announce its intent to elevate Khan to chair, with one calling it "very sneaky, deceptive even." Nearly two dozen GOP senators had voted to confirm her as an FTC member, as hopes for the agency to place a check on Silicon Valley overrode traditional Republican aversion to heavy regulations on business.

A professor at Columbia Law School and former House Judiciary aide, Khan, 32, is the youngest ever FTC chair and the first person of South Asian descent to head the agency. Khan beat out Slaughter, a former aide to Senate Majority Leader Chuck Schumer, and D.C. Attorney General Karl Racine, both of whom were considered by the White House for the FTC chair role.

In a tweet after her confirmation vote, Khan said she looked forward to helping the FTC "safeguard fair competition and protect consumers, workers, and honest businesses from unfair & deceptive practices" and pledged to uphold that mission "with vigor."

Tuesday's bipartisan support for Khan shows Congress' "hearty appetite to rein in Big Tech," said Sarah Miller, executive director of the anti-monopoly advocacy group American Economic Liberties Project.

"Her presence on the FTC marks the beginning of the end of an era of lawlessness for powerful corporations that they've enjoyed at the expense of workers, smaller businesses, and democracy," Miller said.

Klobuchar praised Khan's "deep understanding" of the tech platforms as "vital" to helping strengthen antitrust enforcement.

“We need all hands on deck as we take on some of the biggest monopolies in the world," said Klobuchar.

The FTC has faced stiff bipartisan criticism for several years for what critics call its lax approach to the tech giants, including its decision in 2013 to close an antitrust probe of Google.

Khan joined Slaughter and Commissioner Rohit Chopra as the three Democrats at the five-member agency.

The vote: Khan’s nomination received bipartisan support, with 21 Republicans voting in favor of her confirmation. Twenty-eight other GOP senators voted no, including Sen. Mike Lee of Utah, the top Republican on the Senate Judiciary’s antitrust panel.

Some Republicans raised concerns about Khan's age by saying she doesn't have the experience for the role.

Not everyone was enthused by Khan's confirmation. Minutes before the vote had closed, tech lobbying group NetChoice, which counts Google and Facebook as members, said it was "disheartened" by her elevation to the FTC, saying she was likely to politicize the agency.

A brief FTC majority: Democrats' three-vote majority on the commission may be short-lived because Biden has nominated Chopra to be director of the Consumer Financial Protection Bureau. The Senate has yet to vote on his confirmation, making it unclear exactly how long the Democrats will retain their ability to set the FTC's agenda.

Still, Democrats should have their three FTC seats for at least the next month.

That opens to the door for the agency to begin work on some initiatives the FTC’s Republicans have opposed.

On the Democrats' agenda: Amanda Wait, who chairs the antitrust practice at the law firm Norton Rose Fulbright, said Biden's selection of Khan for FTC chair marks a clear break with Obama-era antitrust enforcers. At her confirmation hearing, Khan focused on unearthing what she called "hidden gems" from the FTC's statute to pursue innovative enforcement and rulemakings, she said.

"One theme we are likely to see out of Lina Khan as chair is trying to find new ways to do things with existing tools or using tools in a new way," said Wait, who spent three years at the FTC before moving to private practice.

Khan and Chopra have argued that the FTC should create rules outlining specific behaviors that amount to unfair methods of competition under the agency’s governing statute. That could affect the tech giants, but also the pharmaceutical and health care companies who are frequent targets of FTC enforcement.

Both Chopra and Slaughter have also advocated for a rulemaking focused on non-compete agreements, contractual provisions that companies in many industries use to bar employees from switching jobs. The FTC’s two Republicans have been less supportive of that move. (Non-competes are less of an issue for tech companies based in California, as the state already prohibits them, but are frequently used in health care and among franchise restaurants.)

7-Eleven merger: More immediately, Khan’s addition to the FTC may help break a deadlock that has existed for the past month on convenience store giant 7-Eleven’s $21 billion purchase of Speedway stores from Marathon Petroleum. The parent company of 7-Eleven closed the transaction last month over the objections of the FTC.

The FTC’s two Republicans, Noah Phillips and Christine Wilson, supported a settlement negotiated by the agency’s staff that would have seen 7-Eleven sell off 239 Speedway locations. Chopra and Slaughter, however, weren’t fully on board with the settlement and had requested that 7-Eleven delay closing its transaction. The company, which said it had delayed closing the deal four times already to accommodate the FTC, declined and opted to finalize the transaction “at risk” despite the possibility of an FTC antitrust suit.

With the addition of Khan to the FTC, the agency’s commissioners may finally be able to resolve the stand-off with 7-Eleven, either by suing to obtain a larger settlement or agreeing to the 239-store divestiture package.

What's next for Chopra: Chopra, an assistant director at the CFPB during the Obama administration, has garnered Republican opposition, delaying his confirmation. The Senate Banking Committee split along partisan lines with a 12-12 vote in March to move Chopra’s nomination forward, which will require Democrats to take extra procedural steps before the full Senate can vote on his confirmation.

With Senate floor time at a premium, any vote on Chopra isn’t likely until at least July.