FTC Chair Throws Stones in a Glass House

Federal Trade Commission Chair Andrew Ferguson hypocritically engages in the very partisanship for which he faults the American Bar Association. 

Federal Trade Commission (FTC) Chair Andrew Ferguson issued a decree on Friday prohibiting the agency's political appointees from holding leadership positions in the American Bar Association (ABA). Ferguson's order also bars appointees from renewing their ABA memberships and speaking at, or even merely attending, the association's events.

Founded in 1878, the ABA is a national organization of law students, lawyers, and judges dedicated to serving the public by "defending liberty and delivering justice as the national representative of the legal profession." Though membership is voluntary, law schools' compliance with ABA educational standards is not: Law schools must abide by the curriculum requirements set by the ABA, including education "on bias, cross-cultural competency, and racism" after matriculation and once more before graduation, to grant the degree of Juris Doctor. Noncompliant schools are subject to hearings and ultimately removal of accreditation.

In his letter to FTC staff, Ferguson accuses the ABA of engaging in "partisan advocacy on behalf of Democrats" by including diversity, equity, and inclusion (DEI) requirements in law school curricula, releasing "biased ratings of Republican judicial nominees," and issuing "consistently leftist amicus advocacy on nearly every major social issue." Citing a recent statement made by ABA President William Bay as "a collection of Democrat political talking points," the chairman argues the ABA is ignoring President Donald Trump's efforts to "protect future generations from…profligacy." Notably, the ABA is an association of lawyers, not economists, and rightly concerns itself with violations of the rule of law—not fiscal irresponsibility.

Ferguson also blames the ABA's Antitrust Law Section for facilitating "a cozy relationship" between the private antitrust bar and federal antitrust enforcers. The Antitrust Law Section's opposition to one bill that would crack down on large technology companies is evidence that the section has become a stalking horse for Big Tech, according to Ferguson, which renders any relationship between a senior FTC official and the association inappropriate.

If Ferguson's prohibition on ABA membership is justified to retain the FTC's nonpartisan legitimacy, then it stands to reason that FTC officials should likewise be barred from engaging with right-leaning groups, including the Federalist Society, an organization which lists Ferguson as a "contributor." Ferguson has spoken at 15 Federalist Society events, three of which have occurred since his swearing-in as FTC commissioner in April 2024.

Ferguson's order does no such thing. Instead of respecting FTC appointees' First Amendment right to speak and associate as they will in their private capacities, the chairman specifically targeted an organization opposed to the governing agenda of Trump and the Republican party. Ferguson's rank partisanship comes as no surprise. He blamed the Democratic FTC commissioners for ramming "through their agenda in the final hours of the Biden-Harris Administration" in his dissent to the Commission's January 16 closed-door meeting and said that "none of them should be surprised or outraged when the incoming majority implements President Trump's vision with equal vigor."

Not all of Ferguson's points are indefensible; he rightly objects to the ABA not disclosing "its massive financial interest in" the U.S. Agency for International Development—it received more than $22 million from the agency in the past year—in its statement objecting to Trump's pause on USAID funding. Ferguson is also right to prohibit the FTC "from expending any funds to facilitate any employee's membership in the ABA"; such costs should not be borne by the taxpayer but by the FTC official who'd like to associate himself with the ABA. If Ferguson's revulsion for government waste is genuine, he will also bar the FTC from subsidizing officials' memberships to all other legal associations.

Ferguson's prohibition targets the ABA for its opposition to "helping President Trump usher in America's Golden Age." Ferguson should cease his hypocritical displays of Republican partisanship before lambasting the ABA for its Democratic activism.