The Senate is set to begin consideration of two Republican nominees for the Federal Trade Commission, a pair of legal experts with a history of Big Tech skepticism.
FTC nominees Melissa Holyoak and Andrew Ferguson will appear before the Senate Committee on Commerce, Science, and Transportation on Wednesday, and they will be questioned about their history and plans for the FTC. The two nominees are replacing the agency’s past Republican commissioners, Christine Wilson and Noah Phillips, who both stepped down last year. Their confirmation would ensure partisan balance on the five-member commission, but they may run into roadblocks in light of FTC Chairwoman Lina Khan’s aggressive approach to antitrust policy.
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Here is the background on the two nominees.
Andrew Ferguson
Ferguson is the solicitor general of Virginia. He previously served as the chief counsel for Senate Minority Leader Mitch McConnell (R-KY) and clerked for Judge Karen Henderson of the U.S. Court of Appeals for the District of Columbia Circuit and Supreme Court Justice Clarence Thomas. He also worked in the offices of Sen. Lindsey Graham (R-SC) and Sen. Chuck Grassley (R-IA), and Ferguson practiced antitrust law in several Washington-based legal firms. He got his undergraduate and law degrees at the University of Virginia, graduating from its law school in 2012.
Ferguson’s legal team has been involved in several cases scrutinizing certain Big Tech companies’ positions. Virginia joined the Department of Justice and seven other state attorneys general in suing Google over allegations of an advertising technology monopoly.
Virginia also joined 26 other state attorneys general in filing an amicus brief in the Gonzalez v. Google Supreme Court case. The brief argued for a narrow interpretation of Section 230, a law that protects websites from being held accountable for posts by third parties. They argued that the law should exclude technology companies from the protections.
Ferguson’s office declined an interview request from the Washington Examiner.
Melissa Holyoak
Holyoak serves as the solicitor general of Utah, where she has assisted in a few consumer-related cases. She previously served as the president and general counsel of the Hamilton Lincoln Law Institute, a nonprofit organization that promotes “free markets, free speech, limited government, and separation of powers, and against regulatory abuse and rent-seeking.” She also worked as an attorney at the Competitive Enterprise Institute, which strives to “reform America’s unaccountable regulatory state.” Holyoak graduated from the University of Utah’s College of Law in 2003. She now lives in Utah with her husband and her four children.
Holyoak served as the counsel of record in Epic Games v. Apple. Apple barred Epic from allowing players to save money by purchasing Epic’s in-game currency directly from the game’s website by kicking the app from the Apple App Store. Epic sued, alleging that Apple had established a complete monopoly over the iPhone app ecosystem. Yvonne Gonzalez Rogers, the California district judge overseeing the trial, ruled that Apple did not have a monopoly but that it did have to change its policy to allow third-party platforms to sell directly to consumers.
Holyoak has been the target of scrutiny due to her involvement in several antitrust and consumer privacy lawsuits involving Google, Target, and other companies. A coalition of left-leaning groups urged Senate Democrats to vote against her, and they demanded her to offer a “proven commitment to antitrust enforcement and consumer protection.”
Holyoak’s office did not respond to requests for comment from the Washington Examiner.
How the nominees could change the FTC
The most evident benefit of the pair’s appointment will be the return of a bipartisan presence on the FTC.
“It is good to see the Senate taking steps to restore a full slate of bipartisan commissioners at the FTC,” Josh Rogin, the Computer and Communications Industry Association’s vice president of federal affairs, told the Washington Examiner. “We would encourage senators to move swiftly to bring balance to the FTC and to examine how the agency may have steered off course from a key component of the job Congress assigned it to do — protect consumers, particularly in industries where they have fewer choices.”
If appointed, the pair will join an agency that previous Republican commissioners struggled to operate in. Phillips resigned in the fall of 2022 to care for his family but noted his disagreements with Khan. Wilson resigned in February due to Khan’s aggressive antitrust policy. While Ferguson and Holyoak both have Republican support, it’s unclear how compatible their work will be with Khan’s vision of regulating large companies such as Meta and Amazon.
Khan made a name for herself when she published “Amazon’s Antitrust Paradox” in 2017, an academic article in which she argued in favor of antitrust reforms that would break up major tech companies. A key argument was that the modern antitrust system was unequipped to deal with the growing market power that entities like Amazon had and required giving the FTC more control. While Khan’s fellow Democratic commissioners have supported Khan’s calls, Republicans were often resistant.
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FTC staff have been unhappy with the commission’s leadership in the last year. Several staffers reported low morale in 2022, and at least 70 of its lawyers left the agency between 2021 and 2022. Other FTC employees said they were ignored when Khan filed a suit to block Meta from acquiring the virtual reality developer Within due to claims that the purchase would give Meta a monopoly over virtual fitness products. The suit was dismissed in court, and the agency abandoned the case in February.
Oversight Committee Chairman James Comer (R-KY) and Judiciary Committee Chairman Jim Jordan (R-OH) turned their attention to Khan and the FTC in the last month over alleged ethics complaints. Comer is investigating European regulators’ influence over FTC policy, and Jordan has inquired into whether Khan has used the agency to push her own ideological agenda on Big Tech companies such as X, formerly known as Twitter, and Meta.
