With the release of the Federal Trade Commission’s (FTC) lawsuit against Amazon, concerns over prior due process complaints may return. Unfortunately, antitrust agencies have a history of perceived bias against certain large companies that could constitute a

Recently, Google opened an inquiry into alleged biases held by the Assistant Attorney General (AAG) for Antitrust at the Department of Justice (DOJ), Jonathan Kanter. AAG Kanter is prosecuting a suit against Google’s ad-tech business. If substantive, this could be a violation of Google’s right to a neutral arbiter, a due process violation.

Google has raised concerns that since AAG Kanter formerly worked as a legal representative for their business rivals, he has an inherent bias against the company on antitrust matters. Several discovery requests were made that sought to disclose evidence that Kanter’s role in this case is inappropriate given his previous litigations and public statements. The DOJ has called some of these requests “unusual, invasive, and irrelevant,” refusing to grant any.

Unfortunately for companies seeking agency alternatives, America’s other antitrust agency, the FTC, has its own share of bias allegations to contend with. Notably, the chair of the FTC, Lina Khan, first entered the popular consciousness because of her Yale Law Review paper on Amazon called “Amazon’s Antitrust Paradox,” published before entering her current occupation. Amazon and others have raised concerns after Khan’s FTC filed suit against the Prime cancellation processes.

The FTC broke normal parlance by issuing a complaint against Amazon without granting prior notice. Such surprise litigations by the FTC are usually reserved for companies involved in alleged fraud, not concerns with cancellation practices. When Amazon was prevented from explaining themselves to the FTC commissioners, a core aspect of due process, and from seeking civil penalties with the DOJ, concerns about Chair Khan’s bias against the company were raised.

However, it isn’t only private companies that have raised concerns about bias at antitrust agencies. A designated ethics official with the FTC advised chair Khan to recuse herself from an attempted halt of Meta’s acquisition of VR fitness company Within. The advisor was concerned about comments made by Chair Khan before joining the Commission, which advocated for the FTC to block any future acquisition by Facebook. Chair Khan disregarded the advice and took on the case anyway, subsequently failing to halt the merger as the court rejected the FTC’s arguments.

The string of alleged biases should concern anyone interested in having a neutral prosecutor of the law, especially when so much is on the line. If said allegations hold water, it would only prove the worst fears of civil society, that both our antitrust agencies have been hijacked by ideologues with a bone to pick. It would also help to explain some of the laughably poor arguments the FTC has been recently making when attempting to block mergers such as in the Activision-Microsoft case.  

The taxpaying public deserves a neutral antitrust enforcer who judges cases impartially. The more these institutions are weaponized for ill-intended and ideological purposes, the less the public trusts them. Congress, as the representatives of the people, must rein in potential agency hijacking to best preserve their neutral legal purpose.

Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.