Democracy Dies in Boredom

"People can get away with a lot when what they're doing seems really boring." 

Jim Geraghty recently wrote this in a longer criticism of modern reporting, and how it focuses on the dramatic to society's detriment.

Coincidentally, something extremely boring but potentially ground-shaking happened in the last week. The new chairwoman of the FTC undid a rule codifying the consumer welfare standard test of antitrust put in place back in 2015. Bored yet?

Coverage: New York Times, Washington Post, Wall Street Journal

Each of these newspapers covered the story in a similar way yet only the Wall Street Journal considered it important enough to include in the paper version. The headline story in the Washington Post is about the alleged fraud at Trump organization. Other stories on front page include a fine charged to the Washington Football Team and a wildfire preview. The prominent story in the Economy & Business section is about an 82-year-old woman who will go to space. The Wall Street Journal summarized the story in a side column with full write-up at top of A4.

What's happening at the FTC is enormous and is an illustrative lesson in how Democrats can push the envelope a lot more than Republicans can because the media apply a much higher level of scrutiny to Republicans. 

Here's a list of precedent-breaking actions taken involving the chairwoman of the FTC that if a Republican had tried would be met with a cry of the demolition of democratic norms:

1. Though she was nominated to be just a member of the FTC and was voted on with that presumption, after she was approved, Biden made her the chair of the FTC. I don't know if Republicans would have voted for her had they known that to be the case, but this is not the norm (Axios), and it sows ill will between the parties. Republicans voted for her (in a misguided attempt to get big tech, not as a olive branch of bipartisanship), but this gives a reason not to trust Biden or even Democrats. If perchance you are a Democrat who thinks this is fine, imagine how you'd feel if Trump had done the same. Interesting that neither the Times nor the Post mentions this break from precedent. Additionally, I'm sure if the the political affiliations were switched, we'd be seeing dozens of stories and air time about the 32-year-old ideologue with little experience being named to chair the FTC as an omen of how Republicans are trying to install people who put their beliefs over good governance and thereby subvert the FTC's important legacy and mission.

Politico runs down several of the actions taken after she was sworn in

2. Made the FTC meetings public. I don't have a strong opinion on this, but I tend to believe that cameras make democracy work worse as it makes the agents do more for publicity and popularity than for good. The real problem is that this again broke with precedent, was not fully discussed with everyone, and an agenda was not provided to prepare the commissioners. This, too, serves to breed distrust which even if you want the publicity and the activism, do you want every agency in an internal war? There's really no defense for not giving your colleagues a heads-up.

3. Eliminated the FTC's administrative law judge and replace with "the chair or a person of her choosing." I remember in the Trump years when Democrats and the left used to talk about how great neutral actors were, like the inspectors general and Robert Mueller and also with the George election reform, how politicians shouldn't make those decisions. Here we have the chairwoman removing a layer of neutrality, on a partisan vote. Does this represent the kind of democracy you want or do the ends justify the means?

4. Reduced the onus to start investigations to one person. As Politico points out, this is likely because the Democrats will soon lose their majority which will impede their ability to open investigations so Khan is giving herself more power to ignore half of the FTC.

5. Repealed a bipartisan statement from the Obama era. The FTC had prided itself on remaining relatively bipartisan, and in 2015 issued a statement that they would follow antitrust law as it was then being adjudicated. Khan and the two Democrats defenestrated that show of comity. This is the action that fully exhibits the ideological, activist nature of Khan & team. For decades, the standard has been that the FTC challenges mergers that will hurt consumer welfare (generally lead to higher prices or less competition). This has been the test that courts apply as well. But Khan is famous for saying that this isn't good enough, that mergers should be checked for a long list of progressive priorities such as  benefits, worker rights, environment, social justice, etc. To ensure companies are promoting progressive values, Khan has skipped any votes by Congress and will just apply a historically failed standard unilaterally. 

6. Cancelled all FTC's staff public appearances. This one is nearly impossible to believe. The FTC staff often discuss their work and analysis in public. This gives them exposure helps improve their own understanding of the issues and helps the public understand what they do. With no notice, Lina Caesar has declared that no public appearances will be allowed. Banning public appearances is an interesting way to provide “ample transparency and opportunity for public participation.” I again encourage you to compare to the wails we heard in the early days of the Trump administration at similar actions.

It's unclear what impact these actions will have. Khan is going up against decades of jurisprudence and can't actually change the laws but only enforce them. Corporations will be very unhappy and will make their unhappiness known. What is clear, though, is that Khan does not represent the return to bipartisanship Biden promised. She represents many progressives' desired version of democracy - a bait-and-switch commissioner jamming through partisan, precedent-breaking, ideological changes to policy disconnected from any legislation. What was that Washington Post motto again?