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This Republican senator’s radical new plan for the FTC kind of makes sense

Josh Hawley is at it again in his war on Big Tech.

Josh Hawley speaking into a microphone.
Sen. Josh Hawley (R-MO) speaks to the press on Capitol Hill during President Donald Trump’s impeachment proceedings in January 2020.
Sarah Silbiger/Getty Images

The Senate’s biggest Republican tech critic is at it again, this time with a proposal to overhaul the agency that’s supposed to police the industry.

On Monday, Sen. Josh Hawley of Missouri released a new plan to overhaul the Federal Trade Commission (FTC) that would roll the agency into the Department of Justice (DOJ) and focus its scrutiny on digital markets, enforcement, and market analysis.

“The FTC isn’t working,” Hawley said in a statement announcing the proposal. “It wastes time in turf wars with the DOJ, nobody is accountable for decisions, and it lacks the ‘teeth’ to get after Big Tech’s rampant abuses. Congress needs to do something about it. I’m proposing to overhaul the FTC to make it more accountable and efficient while strengthening its enforcement authority. This is about bringing the FTC into the 21st century.”

In his proposal, Hawley specifically names Google and Facebook. He points to the $2.7 billion antitrust fine the European Union hit Google with in 2017 for favoring its own shopping services in its search results over others’ and argues that the FTC’s failure to take similar action “allowed Google to entrench its market share for years using deception.” Hawley also slams the FTC for fining Facebook $5 billion after the company violated a consent decree with the agency over data privacy. The proposal goes on to criticize the FTC for allowing both Google and Facebook to make acquisition after acquisition over the years.

Hawley, who was elected to the Senate in 2018, has quickly sought to establish himself as an anti-tech crusader on Capitol Hill. He has introduced or co-sponsored multiple pieces of legislation on data tracking, children’s online privacy, data monetization, alleged social media bias, and tech addiction. Even many of his critics agree that Hawley knows what he’s talking about on tech, even though he can seem over-the-top about it and has misfired on some of his proposals. Hawley has also embraced largely unfounded claims of widespread anti-conservative bias in social media algorithms.

Whatever you think of Hawley, one thing is for sure: He wants to make a name for himself in Washington, and he’s going through Big Tech to do it. This FTC proposal is another iteration of that.

Hawley’s proposal, briefly explained

Hawley’s plan for the FTC, which you can read in full here, contains multiple planks that add up to what he describes as “multifaceted structural reform” through acts of Congress.

  • It would put the FTC under the DOJ for “clear and direct oversight.”
  • It would eliminate the FTC’s five-member structure and instead put it under a single director, who would be Senate-confirmed and serve a five-year term.
  • It would put the DOJ’s antitrust division in charge of reviewing mergers and acquisitions that previously might have been done by the FTC.
  • It would create a digital market research section within the FTC to focus on tech.

Hawley also proposes that Congress limit how much data firms are allowed to collect and how much ownership people have over their data, impose civil penalties for first-time violations, and give state attorneys general concurrent authority to enforce laws. (Hawley is the former attorney general of Missouri and launched probes into Google and Facebook from his perch there.) He is also pushing for stricter ethics requirements for FTC officials — for example, barring officials from working at large companies for a few years after their tenures.

The FTC was established in 1914 to protect consumers and promote competition in the US economy. It’s headed by five commissioners who determine its cases and rules. Commissioners have to be nominated by the president and approved by the Senate for seven-year terms, and no more than three of the commissioners can be from the same party. The FTC and DOJ currently share antitrust enforcement responsibilities. According to the watchdog group Public Citizen, three-quarters of FTC commissioners have “revolving-door conflicts” with tech companies and other industries, meaning they wind up becoming lawyers or lobbyists for corporate America once they leave the agency.

What Hawley is proposing would change a lot of this: one director instead of five, antitrust under a single government umbrella, stricter ethics considerations.

The FTC has issues, but is Hawley’s plan really the fix?

Hawley is hardly the only person to chastise the FTC or wonder whether antitrust enforcement in the US has become too lax in recent decades.

For example, Rohit Chopra, a Democratic commissioner of the agency, regularly criticizes it and calls for it to do more. In his dissent from the FTC’s Facebook decision, Chopra wrote that the settlement gave Facebook “a lot to celebrate” and noted how small the amount was compared to Facebook’s overall budget. “Large incumbents can easily afford to bankroll the kind of blockbuster settlements that generate headlines,” he wrote. As CNBC notes, the current heads of both the FTC’s and the DOJ’s antitrust division have said that if they were to start over, it would probably be a good idea to put antitrust enforcement under one umbrella.

But are Hawley’s proposals the fix? With President Donald Trump in the White House, if Hawley’s proposals were to be enacted (which is highly unlikely), it would put Attorney General Bill Barr in charge of the FTC. Given the president’s consistent railing against tech companies, you can imagine where that might raise concerns about the agency, under a single director, acting out vendettas against Twitter or Facebook.

It is true that Congress and lawmakers on both sides of the aisle have become increasingly vocal about Big Tech as of late. It’s also true that while there’s consensus that something should be done, there is not consensus on what that something is. What Hawley’s proposing could potentially require multiple pieces of legislation and various hearings, and given Congress’s inaction on so many things, it’s hard to see that happening in the near term.

Hawley is smart on tech — but he also takes almost a punitive approach to it, and he might prefer a world where big tech companies don’t exist at all. “They need to do a lot better,” Hawley told Recode last year. “They need to actually respect the rights and the safety of the people who they’re supposedly helping: their customers and consumers.”

And if tech companies won’t make the changes he wants on their own, Hawley seems determined to try to force them to however he can.