One group seeks to retain the institution but revise its procedures. For example, Congress has long considered a bill dubbed the SMARTER Act that would strip the FTC of its quasi-judicial functions by requiring it to litigate all pre-merger challenges in federal district court. A second group seeks to eliminate the FTC’s antitrust mandate. This effort is exemplified by the proposed One Agency Act, which would strip the FTC of antitrust authority and transfer its existing competition assets to the Department of Justice. As bill co-sponsor Senator Mike Lee explains it, “[t]he Department is more politically accountable, and its structure is better suited to the decisive enforcement we need to better protect American consumers.”
Although these proposals differ by degree, if enacted, both would homogenize federal antitrust enforcement by superimposing the DOJ’s procedures (and under some proposals, the agency itself) on the FTC. Although not always the primary motivation, these efforts would also impose a system that more clearly distances the judge from the investigative process.
Today the Commission has the authority to vote to issue a complaint and then—through its Part 3 litigation process—determine the validity of that complaint. This path typically first runs through an administrative law judge (ALJ), who until recently conducted a trial and issued both findings of fact and conclusions of law that were appealable to the Commission. Earlier this year, the Commission changed its procedure; for future trials, “the ALJ will issue only recommended decisions, not initial decisions” for the Commission to “adopt, modify, or set aside.” Semantics aside, the process remains essentially the same: quite unlike the procedure for appeals in federal court, the Commission can—and frequently does—revise the factual record as it sees fit. Or, as Axon Enterprise recently put it in its Due Process Clause challenge, “if the FTC disagrees with the ALJ’s ultimate decision on either the facts or the law, the same Commissioners who voted to file the enforcement action against [a respondent] have the right to review these findings de novo and change them.” There is some force to the charge; over the past 25 years, the Commission found its own facts and assessed liability in essentially every one of the antitrust cases it heard through Part 3, though not always on every count. The Commission will retain this power under the new format.
While legislative efforts to increase due process protections are laudable, it is not clear that policymakers have considered the full range of alternatives that would achieve the desired result. To date, policymakers have considered what they view as “addition by subtraction”—eliminating either the Part 3 process or the FTC entirely. This article attempts to fill in some of the terra incognita by considering three other reforms that would retain some of the specialized features that Congress intended when it created the FTC in the first place.
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