A self-described “big proponent of economic liberty” is running the Federal Trade Commission and is a candidate to be President Trump’s pick to become chairwoman of the agency.
Maureen Ohlhausen, the acting chairwoman of the FTC and a commissioner since 2012, told the Washington Examiner in a Tuesday interview that she hopes to be Trump’s choice to head the commission and that she has “laid out an agenda that I think is very consistent with one the president has set out.”
“We want to protect small business, average people, we want to be sure that people have competitive choices in the marketplace,” Ohlhausen said.
To do that, she recommends that the commission prioritize cases in which there is actual harm to consumers, focus on antitrust cases with strong legal and economic grounds, especially ones that involve using government power to undercut competition, and exercising “regulatory humility.”
In addition, Ohlhausen said, she is preparing the commission to retake responsibilities currently exercised by the Consumer Financial Protection Bureau in case the new unified Republican government is successful in its efforts to reform or eliminate the new agency.
Ohlhausen’s vision for the FTC and regulation generally is a major shift from that of the Obama administration and what might have been implemented had Democrat Hillary Clinton won the election. In the late Obama years, the administration made overtures to liberal advocates of more aggressive antitrust enforcement and advocated greater competition across industries.
Ohlhausen, however, has called the Obama administration’s conclusion that monopoly power was increasing “empirically unsound.”
The bar for antitrust cases is whether a company is doing something that “lifts a competitive constraint on the firm,” either by taking out a competitor through a merger or through other exclusionary conduct that hurts competition.
Hospital mergers, Ohlhausen indicated, are an area in which the commission has done a good job with antitrust cases. But she wouldn’t support antitrust cases in areas in which there wasn’t clear evidence that antitrust laws were being violated, such as instances in which stakeholders were merely concerned about high prices. “We shouldn’t be a price regulator,” she said.
Last week, the commission sued a drug company, ViroPharma, for antitrust violations on the basis that it raised the price of a drug used to treat sometimes deadly infections and sought to prevent a generic replacement from being developed with a series of filings with the Food and Drug Administration and courts. Ohlhausen cited that case as an example of the kind of anti-competitive behavior that she wants to crack down on.
As for patent trolls, a major concern for the tech industry, Ohlhausen counseled a “very balanced” approach in protecting companies at risk of abusive suits while enforcing intellectual property rights. “We don’t want to kill the goose that lays the golden egg,” she said, referring to the need for property rights to drive investment.
Before the Consumer Financial Protection Bureau was created by the 2010 Dodd-Frank financial reform law, many of its responsibilities monitoring fraud in financial products belonged to the FTC. The bureau, however, is now threatened by Republicans who have opposed it from the beginning.
Should the bureau see its powers limited, Ohlhausen said, the FTC should be prepared. Last week, she named lawyer and former FTC staffer Tom Pahl to be the acting director of the commission’s Bureau of Consumer Protection, a role that would oversee many of the relevant areas. The FTC would regulate through enforcement rather than writing major rules, as the CFPB does, but it has to be ready so that “that we can step in and take over,” Ohlhausen said.
