U.S. Chamber of Commerce says the Federal Trade Commission and Department of Justice are costing taxpayers millions and raising concerns about potential bias by failing to pursue settlements to remedy alleged anti-competitive behavior.
The FTC and DOJ have refused to compromise in many cases, which raises concern for potential impartiality, the chamber reports. Their unwillingness to identify potential remedies in many cases violates Presidential Executive Order 12988, which was set by former President Bill Clinton in 1996.
The order urges the government to settle lawsuits against private parties to avoid costly litigations. It states an agency, “shall evaluate settlement possibilities and make reasonable efforts to settle the litigation.”
In Meta-Within – which involved the Facebook parent company’s potential acquisition of virtual reality company Within – the FTC never offered settlement terms, and FTC Chair Lina Khan overruled the staff’s recommendation and ordered them to file a lawsuit, according to public records.
Khan also refused to recuse herself from the case despite critical past statements about Meta, disregarding the views of the FTC’s ethics official, marking possibly the first time in the more than 100-year history of the FTC that this has occurred, according to the chamber.
In the DOJ’s case against Google, the judge expressed concerns about the participation of Assistant Attorney General Kanter. Google requested that Kanter recuse himself based on his past work for Google’s competitors. The chamber reports that the court declined to order his recusal, but the judge saw the argument as biased.
“I think the Department of Justice needs to think very carefully and use some wisdom ... I'm not ordering it, but I think it's something that wise counsel should think about, ” the judge said, according to the chamber.
The discrepancies between the agencies’ actions and the executive order raise questions about their conduct, the chamber said.
In response to Khan and Kanter’s ongoing participation and alleged bias, the chamber filed a petition for rulemaking on Sept. 13 that would seek to bring transparency and due process to the recusal process at the FTC.
The proposed changes would not change the commissioner’s discretion when considering recusal petitions. But it would require that they seek written ethics counsel.
If they do not follow the ethics counsel guidance, their rationale for their decision needs to be disclosed in writing, and it would become part of the public record. Further, if the matter comes to a vote before the FTC, the other commissioners must explain their rationale for allowing a commissioner to sit in judgment against the ethics counsel’s advice.
The chamber said these changes would help bring potential conflicts of interest to light and preserve the rights of those being persecuted by the FTC.
“If current and future commissioners can’t agree to basic principles of transparency and accountability, it’s time they reconsider their positions as public servants,” the chamber states.
