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How a low-profile Senate vote could spell trouble for Big Tech

The Senate voted Tuesday to confirm a leading critic of Amazon to the Federal Trade Commission. Even many business-friendly Republicans voted "yea."
Commissioner nominee Lina M. Khan testifies during a Senate Commerce, Science, and Transportation Committee nomination hearing on April 21, 2021 in Washington, DC.
Lina M. Khan testifies during a Senate Committee on Commerce, Science, and Transportation nomination hearing in Washington on April 21.Graeme Jennings / Pool via Getty Images file

Big Tech just found out how many allies it has in the Senate for the industry's fight against antitrust enforcement, and it wasn't so encouraging for the likes of Amazon and others. 

Not only did the Senate vote Tuesday to confirm Lina Khan, an established critic of tech companies' market power, to a seat on the Federal Trade Commission, which shares federal enforcement of antitrust law with the Department of Justice, but the vote, 69-28, also wasn't close.

Khan, 32, a law professor, picked up support from 21 Republicans who joined an emerging bipartisan coalition that favors more aggressive action against Big Tech. 

It was another warning sign that Silicon Valley's political allies may be dwindling even at a time of deep partisan divisions in Washington — at least when the issue is how big tech companies have become. 

"There's more agreement on competition," said Justin Brookman, a former FTC policy director who's now director of consumer privacy and technology policy for Consumer Reports. 

"Certainly many Republicans are motivated by concerns that liberal tech companies are discriminating against conservative voices," he said in an email. "So maybe the parties have different motivations, but many on both sides seem to agree that the tech companies need to be reined in more." 

Later Tuesday, Khan was sworn in as chair of the five-member FTC, a step up from commissioner, after President Joe Biden chose her to lead the body, according to a statement from the FTC. She is the youngest chair in the commission's history.

Khan emerged in recent years as one of the most high-profile voices of the so-called "hipster antitrust" movement that pushed for governments to reconsider how they view the power of tech companies. And though it started as a far-left movement, it has gained traction with Democrats — and even found some shared ground with Republicans whose concerns also center on power but tend to focus more on the companies' efforts to police content.

The changing attitude about monopoly policy has played out in Congress, as well as the courts. Last summer, the CEOs of Facebook, Google, Amazon and Apple were grilled during a congressional hearing, and the companies were later sharply criticized in a House investigative report. Last week, lawmakers proposed a sweeping, bipartisan package of bills to overhaul the nation's antitrust laws. 

And tech giants have faced lawsuits over their influence in the market. The Justice Department last year alleged that Google has been a "monopolist," and in December, the FTC sued for the breakup of Facebook, with the support of the agency's Republican chairman at the time. 

Senate votes to confirm an FTC nominee are often sleepy affairs, with little debate or opposition. Sometimes, senators skip a roll call vote in favor of a voice vote.

But there has rarely, if ever, been a nominee like Khan, who unlike many past commissioners doesn't come from a partnership at a corporate law firm in Washington. A Yale Law School graduate, she drew wide attention in legal, political and tech circles beginning in 2017 for her work analyzing Amazon. She later joined the staff of House Democrats, and her confirmation ensures she can serve on the FTC for at least three years. 

NetChoice, a trade group whose members include large tech companies such as Amazon, said it was disheartened by the vote in her favor. 

"Lina Khan's antitrust activism detracts from the Federal Trade Commission's reputation as an impartial body that enforces the law in a nondiscriminatory fashion," Carl Szabo, NetChoice's vice president and general counsel, said in a statement. 

"Khan has a strong career in persuading the American left of her proposed reforms to antitrust law, but the job of an FTC commissioner is to enforce antitrust laws as they are, not as the commissioner wishes they would be," he said. 

Biden, who nominated Khan for the FTC, has proposed an 11 percent increase in the commission's budget. He has also embraced other tech critics including Tim Wu, a Columbia University professor, who joined the National Economic Council in March.

Republicans' shift on antitrust enforcement is potentially radical because for decades they've argued that the large size of a company shouldn't really be a concern on its own. 

And before Tuesday's vote, Republican senators faced pressure to stick by that approach. A post on the website of Americans for Tax Reform called Khan a "left-wing academic that will remake the FTC as a super-regulator of the entire economy." Robert Bork Jr., president of the Antitrust Education Project and whose father was a judge and antitrust scholar, warned that Khan might wrongly refuse large corporate mergers

But it wasn't enough to sway all Republicans. The group of 21 who voted for Khan was a cross-section of their caucus, including moderates, conservatives and the Senate's No. 2 Republican, John Thune of South Dakota.

"The strong bipartisan vote in her favor is both confirmation of her impeccable credentials and of the bipartisan interest in holding Big Tech accountable," Charlotte Slaiman, competition policy director at Public Knowledge, said in a statement.