Published

November 19, 2021

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Washington, D.C. — The U.S. Chamber of Commerce today submitted a series of filings and letters to the Federal Trade Commission to strenuously object to the FTC’s recent egregious practices that pose a grave threat to American businesses and economic growth.  

“The FTC is waging a war against American businesses, so the U.S. Chamber is fighting back to protect free enterprise, American competitiveness, and economic growth,” said Suzanne P. Clark, president and CEO of the U.S. Chamber of Commerce.  

“The FTC’s radical departure from its core mission under Chairwoman Khan is deeply concerning to our members across the business ecosystem. American companies are facing historic challenges with inflation, strained supply chains and worker shortages, while the FTC is going rogue and engaging in regulatory overreach that is accelerating uncertainty and threatening our fragile economic recovery.”  

“Today, the Chamber is putting the FTC on notice that we will use every tool at our disposal, including litigation, to stop its abuse of power, to stand up for due process, and to protect the free enterprise system and America’s vibrant economy,” added Clark. “And we will work with policymakers on Capitol Hill to hold the commission accountable.” 

Specifically, the U.S. Chamber of Commerce is raising formal objections to:   

  • The use of so-called “zombie” voting by former Democratic Commissioner Rohit Chopra. The agency claims that secret rules allow a commissioner to cast secret votes before leaving office and then count those votes as needed after his departure. It is clear that the FTC’s reliance on zombie votes is unlawful. (See letter here.) 
  • External Influence on FTC decision making. Congress created the FTC as an independent agency, entrusting it to exercise its expert opinion free from political influence. Current law and precedent gives agencies deference when they exercise their expert judgement and engage in reasoned decision-making. However, it appears that much of the FTC’s current agenda may be driven by external actors, including the White House. Political interference into the decision making of independent agencies undermines agency rulemaking and the rule of law and calls into question whether agencies have forfeited the deference they currently enjoy. (See letter here.) 
     
  • The FTC’s Use of Civil Penalty Authority. Earlier this year, the FTC followed a recommendation by former Commissioner Chopra to resurrect the use of the Penalty Offense Authority to go after entire industries. The FTC issued public letters to 1,800 companies warning that they’ll face severe penalties, potentially side stepping the requirement for a case-by-case analysis. This appears to be an attempt to publicly shame companies, laying the groundwork to impose substantial future penalties on legitimate companies. (See letter here.)  

In addition to these letters, today the Chamber filed more than 30 Freedom of Information Requests with the FTC to seek detailed information on how it has manipulated its rules and procedures while potentially ceding its independent agency status to political interference. 

Recent actions from the FTC that undermine its checks and balances include:  

  • allowing one commissioner, as opposed to a majority, to authorize compulsory investigations 
  • changing the rulemaking process to give the Chair more control 
  • announcing that it is counting the “zombie” votes of a commissioner who is no longer serving to break 2-2 ties 
  • withdrawing the statement of enforcement principles regarding “unfair methods of competition,” removing the central role of consumers and economic analysis 
  • rescinding the 1995 policy statement on prior notice and approval for future acquisitions subjecting even small future acquisitions to prior approval 
  • repealing the 2020 vertical merger guidelines—creating uncertainty