With midterm elections looming and less than 24 months before her term expires, Federal Trade Commission Chair Lina Khan still has time to realize parts of her agenda to rein in Big Tech — though not much, policy experts say.

Since starting her term in 2021, Khan has largely been unable to advance consumer protection proposals against Big Tech companies due to the agency's 2-2 party split. Now, though, with the confirmation of Democrat Alvaro Bedoya in May and Republican commissioner Noah Phillips' recent resignation, Khan has the potential to both implement new antitrust rules and get more aggressive at enforcement.

"A lot of the work thus far has been laying the groundwork for what is to come," said Alex Petros, policy counsel for Public Knowledge, a nonprofit public interest group in Washington, D.C. "I think there's a sense of 'OK, now we have the votes'; we can move on these things."

Merger mania

A top priority for Khan in the short term will include moving forward on the revision of federal merger guidelines to better detect and prevent anti-competitive deals.

In January, the FTC and the Justice Department's Antitrust Division launched a public inquiry to modernize the guidelines. Petros expects the agency to release the proposed new guidelines in January 2023, after which there will likely be another round of comments before they are finalized.

The Khan-led FTC is also expected to file additional lawsuits against Big Tech companies, challenging both pending and completed deals.

Petros believes the FTC will file an antitrust case against Amazon.com Inc., possibly for an individual deal, such as its planned $1.7 billion purchase of iRobot Corp.. In September, the FTC sent iRobot and Amazon a request for additional information and documentary materials related to the deal.

Petros said the FTC may also file an antitrust lawsuit claiming that Microsoft Corp.'s plan to purchase video game company Activision Blizzard Inc. for $69 billion is anti-competitive. The FTC declined to comment on potential litigation.

Any new challenges would add to lawsuits already brought against Big Tech firms by the FTC under Khan's leadership.

The agency filed an amended complaint against Meta Platforms Inc. last year, alleging that the social media company engaged in monopolistic behavior with its acquisition of WhatsApp Inc. in 2014 and Instagram, LLC in 2012. The FTC this year filed a lawsuit to block Meta's plans to purchase virtual reality content firm Within Unlimited Inc. and then amended its complaint in October to remove allegations of likely anti-competitive effects in the virtual reality fitness app market. Meta filed a a motion to dismiss October.

Carl Szabo, vice president and general counsel at NetChoice, a trade association whose members include Amazon, Google LLC and Meta, said in a statement to S&P Global Market Intelligence that the commission "lacks all necessary facts to justify blocking this acquisition."

"We expect Meta to fight this unjustifiable action by the FTC and win in the courts," Szabo said.

Term limits

Given that these legal battles often take years, cases filed by the FTC under Khan are unlikely to reach settlements while she is in office, said Matt Perault, director for the Center on Technology Policy at UNC-Chapel Hill and an advisor with New Street Research. Khan's successor will also reevaluate any rule she has created.

"The likelihood that she's in office enforcing a rule she created is very small," Perault said.

Khan's term expires in September 2024, though she could stay on for a second term if she is re-nominated and re-confirmed.

The FTC's Magnuson-Moss rulemaking process, which is designed to prevent agency overreach, takes an average of 5.6 years to be finalized, longer than the typical three-year process under the Administrative Procedure Act, said Jeffrey Lubbers, professor of practice in administrative law at American University's Washington College of Law. Mag-Moss was designed to "make it difficult for the FTC to issue rules without going through a lot of hearings and cross-examination," Lubbers said.

The FTC earlier this year initiated a proposed rulemaking that seeks public comment on whether it should create new rules to protect people's privacy and information. Under Khan, the FTC has amended some internal procedures to help speed up the Mag-Moss process, but in a best-case scenario, it could still take three or four years to finalize, Lubbers said.

Even if Khan is not able to finalize a privacy rule, initiating the rulemaking lays the groundwork for other regulators, said Ridhi Shetty, policy counsel at the Privacy & Data Project of the Center for Democracy and Technology.

"It's an opportunity to move the benchmark a little bit further for future FTC engagement and other agencies as well," Shetty said. "There is support for this rulemaking and privacy restrictions from civil rights advocates, especially in the absence of a federal privacy law."

If Republicans take over one or both chambers of Congress next year, some GOP lawmakers may try to create roadblocks for Khan's agenda. Rep. Jim Jordan, R-Ohio, who is up for reelection, is in line to chair the Judiciary Committee, which has direct oversight over the FTC. Jordan has been a vocal critic of Khan's leadership at the FTC.

"You have the power of the purse in the House so I think there is going to be a real effort to give her as little money as possible or putting strings on any funding — 'you can only use it for this and not that,'" Petros said.