On Tuesday, Trump announced Andrew Ferguson as the next chair of the Federal Trade Commission, elevating him from his current commissioner role. Ferguson’s plans for the agency, laid out in a leaked one-page memo, make clear that he intends to use antitrust and consumer protection authority not to protect competition and consumers, but to punish the MAGA world’s perceived enemies and fight culture war battles.
Ferguson’s leaked memo outlines plans to use antitrust to punish “Big Tech” for “censorship,” investigate companies that engage in boycotts, and “fight back against the trans agenda” — all part of a nakedly political agenda.
Just last Friday, we wrote about an absolutely wild and ridiculous statement from Ferguson that made it clear he was sucking up to Trump by talking about all the powers the FTC had to go after his culture war enemies for their speech. It was clear that Ferguson was gunning to be appointed chair of the FTC. The general feeling was he felt the need to appear extra Trumpy, because Trump was unhappy that he had worked for Mitch McConnell in the past.
Later that day, Ferguson’s one-page plea to Trump was leaked and it’s quite a banger.
It is basically a laundry list of a bunch of shit that Trump gets excited about, much of which is well beyond the FTC’s actual authority (which is even more scaled back post-Loper Bright removing Chevron deference). And, note the line at the bottom where he mentions his work for McConnell, but frames it as if he pushing Trump’s agenda within that office. A lot of “sure I worked for the guy you hate, but I was fighting the good fight against him” energy.
Trump loves a suck-up, and in this case, it worked. On Tuesday, Trump announced Ferguson as the next chair. Note that he skips over the McConnell part of the resume.
With Ferguson assuming the top job at the FTC, we should perhaps look at what he’s planning to do. Obviously, that totally batshit crazy “concurrence” on last week’s GOAT ruling was a dry run of nonsense, but the one-page pitch has a lot more craziness in there that should be called out.
The whole thing can be summarized pretty simply: end a bunch of the efforts that Lina Khan began by calling them “politically motivated,” (despite little evidence of any of them actually being politically motivated) while launching a shit ton of new investigations, nearly all of which appear to be extremely politically motivated.
Every accusation a confession, you know.
While I’ve been critical of some of Lina Khan’s moves at the FTC, especially early in her tenure, I’ve seen no evidence that her actions were “politically motivated” as Ferguson asserts. If anything, some of her later efforts, while more effective, were politically inconvenient for Democrats, leading prominent Democratic donors to ask Kamala Harris to promise to dump Khan.
However, Ferguson makes it clear that almost everything he wants to do is politically motivated and is about fighting culture wars and suppressing speech. That’s not what the FTC is for, but he sure sounds like he’s going to try to make it do so. A few of the dumber ideas:
Focus antitrust enforcement against Big Tech monopolies, especially those companies engaged in unlawful censorship.
This is yet another example (one of many) of new administration officials using the language of free speech to enact censorial, speech-suppressing policies.
There are already antitrust cases against all the Big Tech companies, and it’s kinda funny that this plan to “focus antitrust enforcement” against them is in direct conflict with his earlier claims about pulling away from Khan’s aggressive efforts efforts to promote competition. It also contradicts with his plan to allow more and more mergers, which seems like the antithesis of antitrust.
And that’s why it’s clear that the antitrust efforts he’s talking about have nothing to do with consumer protection or monopolistic anti-competitive behavior, but rather punishing the MAGA world’s perceived enemies.
The “engaged in unlawful censorship” line is the giveaway. He used that line in the GOAT ruling last week, and we already discussed how it’s bullshit. Private companies have a First Amendment right to engage in the editorial discretion they like, and the Supreme Court confirmed that just last year. Ferguson almost certainly is aware of that. Why he would choose to misrepresent that is left as an open question.
Pursue structural and behavioral legal remedies under the antitrust laws and the FTC Act to make sure large platforms treat all Americans fairly and to prevent them from using their market power to box out new entrants and stymie innovation.
Why do I get the feeling this will not apply to Elon Musk’s repeated efforts to throttle or otherwise limit links to any competitors? Would that not be using market power to box out new entrants and stymie innovation?
Somehow, I doubt that’s what Ferguson has in mind. Instead, this is transparently a threat being made to other social media platforms that moderate MAGA folks, and also a suggestion that not choosing to advertise on ExTwitter will be seen as “boxing out new entrants” and an attempt to “stymie innovation.”
Then we get the culture war nonsense:
Investigate and prosecute collusion on DEI, ESG, advertiser boycotts, etc.
Literally all of that is free speech and free markets at work. Saying he’s going to investigate and prosecute people for their free association and free market decisions to not do business with someone is, once again, a censorial attack on free speech that Ferguson doesn’t like. This is a dangerous threat to use government power to coerce private entities to support certain political views.
If a Democrat said anything even remotely similar to this (e.g., saying the FTC should “investigate and prosecute” boycotts of Budweiser) it would be the top story across Fox News and the Trump media ecosystem for years. Yet, when a GOP person does the same thing… crickets.
These kinds of attacks on free speech should be repeatedly called out as such by everyone. This is not a good faith look at “collusion.” It is Ferguson issuing a warning from the government: “shut up on these things, and start buying ads on ExTwitter… or else.”
Considering the GOP spent four years screaming incoherently about the government pressuring social media companies on moderation, it’s notable that they are going way, way, way beyond even what they claimed the Biden administration did (and what actually happened was less than what the MAGA world claimed).
Then we get even more culture war nonsense that seems clearly designed to be a censorial warning shot about LGBTQ content:
Fight back against the trans agenda. Investigate the doctors, therapists, hospitals, and others who deceptively pushed gender confusion, puberty blockers, hormone replacement, and sex-change surgeries on children and adults while failing to disclose strong evidence that such interventions are not helpful and carry enormous risks.
While the cruelty and hatefulness of this agenda is apparent, it’s worth noting that it has nothing to do with the FTC’s mission of protecting consumers and competition. It’s simply Ferguson abusing his power to target a vulnerable minority.
History will remember these cruel attacks on people who just want to live their lives, and it won’t look kindly on the dipshits like Ferguson that led them.
Then, of course, Ferguson makes it clear that he will abandon decades of precedent in making sure that the FTC is no longer an independent agency:
The Constitution requires that all federal employees, even the heads of so-called independent agencies, answer to the President.
Terminate uncooperative bureaucrats.
Advance the President’s agenda by taking on entrenched left-wing idealogues at the FTC who take their agenda from liberal journalists and activists. Only a strong, Trump-aligned Chairman can resist their influence.
Basically, if you don’t do what Trump wants, or say what Trump wants you to say, you’ll lose your job at the FTC. That’s not how this is supposed to work.
Hell, some of us remember Republicans absolutely losing their minds during the Obama administration when Obama posted a public message urging the FCC to embrace net neutrality, claiming the mere hint that the President was suggesting what the FCC should do violated the Administrative Procedures Act.
The same Republicans who viewed a public statement from Obama as an egregious violation of the FCC’s independence will now happily cheer Ferguson on as he explicitly vows to turn the FTC into an arm of the Trump White House. All this will do in the long run is destroy any credibility either agency once had, which may very well be the real point.
Again, in the post-Loper Bright world, it’s unclear what authority the FTC actually has any more. But Ferguson has already made clear that his main goal is to use whatever power it does have to punish Trump’s enemies for their speech.
If carried out, Ferguson’s plans would mark the complete politicization of what is meant to be an independent agency. It would turn the agency into a tool for censorship and retaliation against the administration’s opponents. This is a five-alarm fire for anyone who cares about free markets, free speech, and limited government.
