Busting Trusts, Breaking with Tradition

by | Jan 10, 2024 | Antitrust, FOIA, FTC, Law Firms, Litigation

Requests in FOIAengine Show Groups Watching the FTC

When the Federal Trade Commission joined the Justice Department last month in announcing new merger guidelines, two years in the making, the revised rules of the road were a warning to acquisitive corporations:  Merge at your peril. 

In essence, the rules signaled that trustbusters in the Biden Administration would continue to pursue an aggressive antitrust enforcement agenda, despite the FTC’s recent notable courtroom losses.     

America’s antitrust laws – the Sherman Act of 1890 and the Clayton Act of 1914 – date to the Progressive Era, and the new guidelines harken back to those days.  The merger guidelines seek to roll back more permissive antitrust policies that evolved over the past 40 years, enabling consolidation in many American industries. 

Significantly, the new guidelines also represent a personal victory for the FTC’s chair, Lina Khan, who has unapologetically defended her progressive approach to antitrust enforcement amid criticism from the business community and some in Congress. 

Khan became the youngest chair in the FTC’s history when, at age 32, she was sworn in on June 15, 2021 as President Biden’s choice to lead the agency.  Her youth and relative inexperience were noteworthy.  But choosing Khan also sent a sobering message.  The FTC chair typically came from a staid, white-shoe law firm.  By contrast, Khan was the research director at the American Economic Liberties Project, a left-leaning think tank that took an expansive view of what, exactly, constituted a “monopoly,” and why bigness in and of itself might be bad.  The group’s mantra:  “break their unjust hold on power.”

Tech giants and big corporations were accustomed to having their way in Washington.  Now, there was a new sheriff in town.    

A New Yorker profile set the stage for what was to come:  “After years spent publishing research about how a more just world could be achieved through a sweeping reimagining of anti-monopoly laws, Khan now has a much more difficult task:  testing her theories – in an arena of lobbyists, partisan division, and the federal court system – as one of the most powerful regulators of American business.”

How’s that going?  This week, we’re taking a look at Freedom of Information Act requests to the FTC.  Seven hundred nineteen requests, from a period covering the majority of Khan’s tenure at the Commission, were just added to the FOIAengine database.  The requests underscore what Politico headlined at the start of Khan’s tenure:  “Partisanship is back.”   

And controversy has followed.  Republicans in the House have amped up investigations and oversight hearings.  FTC Commissioner Christine Wilson, a Republican, resigned last March, accusing Khan of “lawlessness” and “disregard for the rule of law and due process.” 

Soon after regaining the House majority in 2023, lawmakers on the Oversight Committee opened an investigation into Khan’s management of the agency, citing complaints of abuse of power.

Forty-six requests to the FTC in FOIAengine reveal the interest that activist legal organizations, some with considerable financial and litigation resources, have in the activities of Khan and her agency.  At least one FOIA requester, the U.S. Chamber of Commerce, is said by Reuters to be battling the FTC for documents in order to conduct its own investigation. 

Any of the hundreds of requests to the FTC could be an important early warning of bad publicity, litigation to come, or uncertainties to be hedged and gamed out.  In this story, we’re focusing on requests from legal activists because those deep-pocketed groups have the wherewithal and motivation to litigate.  FOIA requests and resultant litigation are red meat for fundraising.    

Following are among the highlights of requests to the FTC made by legal activists: 

Protect the Public’s Trust filed 10 FOIA requests with the FTC during 2022 and early 2023, the most of any legal activist.   When we wrote about this organization last summer (“Republicans Playing the Oppo Game”), there were 296 FOIA requests from the group in FOIAengine, and at least 56 separate FOIA lawsuits in Docket Alarm.  In the months since, their total number of FOIA requests has risen to 392, and the number of lawsuits to 61.  

Requests to the FTC from Protect the Public’s Trust ran the gamut from “records of communications and meetings sent on encrypted messaging applications [or] conducted between Senator Elizabeth Warren and/or her staff and the FTC officials,” to “communications between Lina Khan and [then-FTC Chief of Staff] Jen Howard” with a long list of organizations including American Bridge to the 21st Century, Center for Public Integrity, Open Markets Institute, and Open Society Foundation.  Thus far, the requests don’t appear to have resulted in FOIA litigation.  There’s nothing in the IRS or FEC public records about Protect the Public’s Trust, so we don’t know the size of its bankroll.

Revolving Door Project, a non-profit watchdog group, showed up in FOIAengine with seven requests to the FTC.  Three of those requests related in some way to the circumstances behind Wilson’s angry resignation last year.

America First Legal calls itself “the long-awaited answer to the ACLU.”  Its president is Donald Trump’s adviser, Stephen Miller.  The organization’s most recent filing with the IRS shows it pulled in over $44 million in contributions in 2022, sufficient to fund at least 92 cases in which the group is involved as plaintiff or amicus curiae

America First Legal has four requests to the FTC in FOIAengine.  One FOIA request was a sweeping demand for information about “all employees who entered into a position at the agency as a political appointee since January 20, 2021.”  Three others dug for information about the FTC’s 2022 investigation of Twitter’s privacy practices and the agency’s alleged harassment (according to America First Legal) of Elon Musk.  The FTC’s denial of one of those requests resulted in a lawsuit filed against the FTC in September by America First Legal. 

By far the most legal-activist FOIA requests came from groups leaning right.  Those requesters included Americans for Public Trust, Citizens for Responsibility and Ethics, Center for Individual Freedom, Functional Government Initiative, U.S. Chamber of Commerce, and Pacific Legal Foundation.  Three FOIA requests came from groups supporting a liberal agenda:  People for the Ethical Treatment of Animals (two requests) and pro-worker Strategic Organizing Center. 

When Khan came in as chair, she opened some meetings to the public and took other steps intended to give the public more information about how her agency functions.  That hasn’t extended to FOIA.  The FTC’s most recent update to its FOIA logs was last July; an FTC spokesman didn’t offer an explanation.  Other enforcement agencies, such as the Securities and Exchange Commission and the Food and Drug Administration, post their FOIA logs monthly. 

Things could get more interesting at the FTC as the year rolls on.  The five-member Commission currently is getting its business done with three Democratic members and two vacancies, both reserved for Republicans who’ve been nominated but not yet confirmed by the Senate. 

Lina Khan’s term expires in September.  A reconfirmation hearing would be bruising.  She recently embarked on what Reuters called a “charm offensive” – two days of talks and events in Silicon Valley, during which she sought to soften her image as the enemy of Big Tech. 

“I think it’s really important for D.C. to begin engaging directly with the founders with startups,” she said at the startup accelerator Y Combinator, “and getting a better sense of what are the risks you see.” 

To see all the requests mentioned in this story, log in or sign up to become a FOIAengine beta user

Next:  Hedge fund requests to the SEC and the FDA.  

John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere.  He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis.  His most recent book is The Partisan: The Life of William Rehnquist.  Jenkins founded Law Street Media in 2013.  Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly.  FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller.  Learn more about FOIAengine here.  To review FOIA requests mentioned in this article, subscribe to FOIAengine.    

Write to John A. Jenkins at [email protected].