Originally published by Yale JREG Notice & Comment blog
FTC Commissioner Christine Wilson, the only Republican member of the FTC, announced her resignation from the FTC this week. She explained her decision to resign in an op-ed in the Wall Street Journal. She accused FTC Chair Lina Khan and her Democrat colleagues of unethical, illegal, and unconstitutional conduct.
This is the most significant resignation since Attorney General Elliott Richardson resigned when President Nixon ordered him to fire the special prosecutor who was investigating the burglary of the Democratic Headquarters at the Watergate. Commissioner Wilson’s accusations of wrongdoing are wide ranging.
Commissioner Wilson began by accusing Chair Khan of unethical and unconstitutional behavior by participating in the FTC’s decision that Meta Platform’s proposed acquisition of Within Unlimited was a violation of the Clayton Act. Chair Khan had previously taken the public position that Meta should not be allowed to acquire or to merge with any company. Chair Khan’s decision to participate in that decision making process was clearly unethical and unconstitutional.
In 1990, I wrote an article in which I described and analyzed all of the major judicial decisions on the question of when a government official is disqualified from participating in a decision-making process. The law has not changed since 1990.
The law distinguishes between two types of bias—viewpoint bias and bias against a particular individual or firm. It also draws distinctions among decision-making roles. Thus, for instance, viewpoint bias does not disqualify a government official from playing any role in any decision-making process, and bias against a particular firm does not disqualify a government official from prosecuting the firm or from participating in a rulemaking that may have effects on the firm.
The law is clear, however, that a government official cannot play a role as a decision maker in an adjudication in which the firm is a party. That is unethical, unlawful, and a violation of the due process rights of the firm. That is what Chair Khan did when she participated in the decision that Meta Platform’s proposed acquisition of Within Unlimited violates the Clayton Act.
Commissioner Wilson went on to allege that Chair Khan and her Democrat colleagues “redacted” her dissenting opinion in the Meta Platform case to ensure that the public would not learn about her views that Chair Khan’s participation in the Meta Platform case was unethical, illegal, and unconstitutional. In half a century of studying the administrative state, I have never heard of any agency chair engaging in such totally unacceptable behavior. When members of a multi-member body disagree, the majority gets to write the opinion of the agency and the dissenting member gets to write a dissenting opinion. The majority never has the right to “redact” passages in the dissenting opinion to make it less effective or less informative.
These serious forms of misbehavior by the FTC Chair could not come at a worse time for the FTC. The Supreme Court has a case before it this Term in which a party to an FTC case argues that the agency’s structure and procedures are unconstitutional because they violate separation of powers and due process. In a case that is likely to come before the Court next term, the Fifth Circuit held that agencies cannot adjudicate many types of cases because agency adjudication violates the right to jury trial. Commissioner Wilson’s revelations about the decision-making process at the FTC will make it much more challenging for the government to defend agencies in those cases.
Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University.