The NLRB and FTC: Biden's Fighting Agencies

Both agencies are looking to the past to address modern-day enforcement issues.

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I do not know much about antitrust law or the history of the Federal Trade Commission (this recent law review article was very helpful on that front), but it is clear that Lina Khan’s confirmation to the Chair position has resulted in a sea change for the agency. New remedies are being workshopped; a consensus of inaction is being rethought; and defenders of the status quo are incensed. The greatest benefactors of the agency’s self-imposed impotence are already making desperate attempts to avoid any scrutiny. It is exciting to watch an agency tasked with an extraordinarily broad mandate to crack down on “unfair methods of competitions” begin to re-train its muscles and live up to its potential, especially when much of the necessary work can be accomplished simply by reverting back to a 1960s mindset of the role antitrust enforcement plays in society.

In contrast to my general ignorance of the FTC, I have painstakingly covered the National Labor Relations Board since the 2020 presidential election in preparation for the changing of the guard from Donald Trump’s to Joe Biden’s personnel. Mostly, I was interested in charting a path that the NLRB could take if it wanted to more vigorously enforce the National Labor Relations Act, but this admittedly required the agency to rethink its posture over the last several decades of mostly just playing tug-and-war between Democratic and Republican majorities over the same pockets of case law. So even I was shocked when new General Counsel Jennifer Abruzzo signaled her intent to re-introduce the 1960s-era Joy Silk doctrine and Ex-Cell-O remedy back into labor law discourse, as it reveals her willingness to fight for potentially controversial issues that would greatly bolster the agency’s ability to enforce its statute.

If both agencies follow through on implementing these sets of reforms, they will invite a tidal wave of criticism from the parties who seek to lose from increased federal enforcement and, in the case of the FTC, the soft but steady chiding of much of the “professional” community of lawyers and economists which were raised under the old consensus. (The Biden NLRB will at least enjoy the backing of half of its “shareholders”, thanks to the sharp, unbridgeable divide that has always existed between labor and management.) This pushback will become more onerous if Republicans win back either chamber of Congress in 2022 and can hold hearings on any initiative deemed too extreme. It is imperative that agency officials remain strong in the face of these potential obstacles, but I have no doubt that they are well aware of the consequences.

The NLRB and FTC stand out in comparison to other agencies that have either escaped Biden’s attention, resisted calls for vigorous enforcement, or even continued Trump-era policies. With broad powers to address imbalances in labor relations and consumer markets, it is deeply relieving that these two were singled out for administrative support and, more importantly, delegation of authority to creative-minded movements.

Perhaps most welcome from these agencies is the righteous rhetoric they are deploying in pursuit of their agendas. In announcing its re-filing of a complaint against Facebook with beefed-up evidence and proposed remedies from the dismissed Trump-era pleading, the FTC skewers the company’s “business acumen” by calling its purchasing history “no less anticompetitive than if Facebook had bribed emerging app competitors not to compete.” And in a memo rescinding all Trump-era staff memoranda, then-Acting General Counsel Peter Ohr (now Abruzzo’s top Deputy) previewed the Biden Board’s mission as one foregrounded in the NLRA’s pro-collective bargaining edict:

Section 1 of the Act makes clear that the policy of the United States is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment. As a career employee of the NLRB, I have endeavored to effectuate this policy. As Acting General Counsel, I will continue to work to realize the Act’s purpose.

As the FTC pursues litigation against the biggest monopolies in the country and the NLRB ratchets up injunctions against accused violators of labor rights, we can feel confident that higher-ups in the agencies are not, if nothing else, refusing to use the administrative weapons lying ready at their disposal. We are at a critical time for workers, consumers, and general participants in the American economy, so I am glad to see smart people in powerful positions taking their very important jobs very seriously. Here’s to more to come.