Federal employees are allowed to campaign for or against candidates, as long as they follow the rules.
Federal Trade Commission chairwoman Lina Khan is appearing at pre-election events with Democratic representatives Greg Casar (Texas), Raja Krishnamoorthi (Ill.), and Mark Pocan (Wis.), Democratic Senate nominee Ruben Gallego (Ariz.), and Senator Bernie Sanders (I., Vt.), Punchbowl News reports.
The progressive antitrust regulator has drawn criticism from free-market conservatives yet has been supported by some Republicans, most notably vice-presidential nominee J. D. Vance.
When Joe Biden appointed Khan to the FTC in 2021, it was not initially clear that she would become the chairwoman, and her confirmation was bipartisan. As chairwoman, her record has been lackluster. The agency has lost many top-performing staff members and largely failed to convince federal courts to accepts its progressive reinterpretation of antitrust law.
Some Republican senators who voted for her the first time have expressed regret and would oppose her potential renomination under a Harris administration. Senator Roger Wicker (Miss.) said, “A thousand times no,” when Punchbowl asked if he would support her again.
Yet Vance, who was not yet a senator when Khan was confirmed, said earlier this year, “I guess I look at Lina Khan as one of the few people in the Biden administration that I think is doing a pretty good job.”
He’s not alone. A Wall Street Journal article from March described several “Khanservative” Republicans, including Representative Matt Gaetz (Fla.), Senator Josh Hawley (Mo.), and former representative Ken Buck of Colorado.
Khan’s agenda is wrong on the merits. She seems to be motivated by vendettas against particular companies, most notably Amazon. She seeks to replace the consumer-welfare standard championed by Robert Bork with the big-is-bad mentality that governed earlier-20th-century antitrust, when the only consistent rule was, as Justice Potter Stewart said, “The government always wins.” It shouldn’t be a surprise that discarding the consumer-welfare standard would hurt consumers, whom it is the FTC’s mission to protect. And even if you support her agenda, she isn’t very good at pushing it.
Though it is somewhat unusual for a high-ranking bureaucrat to appear on the campaign trail with politicians, federal employees are allowed to campaign for or against candidates and appear or speak at campaign events, as long as they are not engaged in such activism in the workplace or while on duty and are not using government resources. Republicans on the House Oversight Committee should keep an eye on Khan’s behavior to ensure that those rules are being followed for these upcoming events, and for past appearances Khan has made with Representatives Alexandria Ocasio-Cortez (N.Y.) and Rosa DeLauro (Conn.).
While a renomination fight could be in the cards, it’s also possible that Khan simply won’t leave. Her term technically expired on September 25, and Biden has not renominated her, but as Paul Steidler of the Lexington Institute noted in a recent post, “She can stay in as long as she wants until a successor is nominated and confirmed by the U.S. Senate.”
That’s because, unlike some other positions that have limited “holdover periods” after a term expires, the law governing the FTC has no such provision. And because the FTC is an independent commission, the president can fire an FTC commissioner only for “inefficiency, neglect of duty, or malfeasance in office.”
Biden has already exploited a similar legal loophole to keep Julie Su as acting secretary of labor indefinitely despite her nomination not having the support of the Senate. One of the reasons that senators gave for the lack of support was her inexperience in high-level labor negotiations, which is proving prescient as the Biden administration was unable to facilitate an agreement between East Coast dockworkers and employers to prevent a strike.
Some progressives are arguing for giving Khan similar treatment and simply never nominating a replacement if Harris wins the presidency. That would mean Khan could continue as chairwoman for as long as she wants without a potentially Republican-controlled Senate ever having any say in the matter.
Now that she’s on the campaign trail with Democrats, and her cheerleaders are advocating bypassing Senate Republicans to keep her in power beyond the expiration of her term in office, maybe it will become clear to Republicans that Lina Khan is not a friend.