Few federal regulatory agencies have veered in as sharply activist a direction during the Biden administration’s first year as has the Federal Trade Commission under the direction of newly appointed Chair Lina Khan. Cato scholars have chronicled many aspects of this lurch, as in posts by Scott Lincicome on the new leadership’s distrust of enterprise bigness per se, Ryan Bourne and Erin Partin on the downgrading of consumer welfare considerations championed in previous antitrust policy, and David Boaz on the quickness with which Khan & Co. are ready to blame collusion as a cause of rising prices in sectors like fuel and energy.
Now comes a revealing development discussed by attorneys John Villafranco and William MacLeod in a policy note for the law firm of Kelley Drye & Warren (and flagged by the Washington Legal Foundation). They write:
Earlier this month, the Commission released its draft Strategic Plan for 2022 to 2026, which included a glaring revision to the FTC’s Mission Statement. See for yourself:
- Strategic Plan for Fiscal Years 2018 to 2022: Protecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity (emphasis added).
- Draft Strategic Plan for Fiscal Years 2022 to 2026: Protecting the public from deceptive and unfair business practices and policing unfair competition through law enforcement, advocacy, research, and education.
Pretty bold retraction, eh?
As the lawyers go on to explain, the change in wording—dropping the mention of not burdening legitimate business activity—is by no means a mere matter of atmospherics. It’s likely to carry a variety of practical consequences if implemented. Along with guiding courts in how to interpret and when to uphold agency action, the earlier language had influenced and in turn been woven into a variety of FTC policy statements and decisions. Getting rid of it would weaken the hand of those in the agency’s decision‐making process who argue against overreaching regulatory projects on the grounds that they would trample legitimate business interests. Villafranco and MacLeod again:
For decades, the FTC has explained that the omission of information can lead to liability. It is also a canon of statutory construction that an amendment helps reveal legislative intent. And of course, your mother put it simply: words that you say (and take back) have meaning.
As Andy Jung of TechFreedom points out in a piece for WLF, the draft “does not mention or explain the change in any way,” even by so much as a footnote highlighting the deletion. But it merits wider discussion.
