In this episode of Triggered, host Don Jr. Jones sits down with FTC Commissioner Andrew F. Ferguson to discuss the Biden Pill Penalty, the need to protect the elderly, and the need for consumer protection in the 21st century.
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00:11:53.000The first is, you know, we want to protect Americans and American families from sort of like corporate power when it's exercised in ways that really affect how Americans live out their daily lives.
00:12:04.000So, you know, part of that is, you know, Americans' interactions online with big tech, and that's definitely what gets the most news.
00:12:20.000And our markets are complicated, but the FTC has a very long history of protecting Americans in healthcare.
00:12:27.000We have an unbelievably successful track record in policing hospital mergers to make sure that hospitals, especially in rural areas, don't merge in a way that can raise their prices.
00:12:38.000And then the other thing the FTC under President Trump is really going to focus on is protecting workers.
00:12:43.000So the antitrust laws protect workers.
00:12:46.000They protect workers from things like...
00:12:50.000They also protect them from other forms of collusion.
00:12:53.000One of the forms of collusion that affects American workers that really concerns me are DEI metrics.
00:12:58.000What you really don't want are businesses getting together behind closed doors and saying, hey, like, let's all agree.
00:13:04.000That we're going to hire on the following DEI bases, and we're not going to depart from that.
00:13:09.000That's a potential antitrust problem that the commission is going to look at very strongly and take very seriously.
00:13:15.000That seems to be a major problem right now.
00:13:17.000And again, whether it's done behind closed doors included on or everyone just agrees this is the way we're going to do it, because what we've seen, the bloom of that insanity for the last few years seems to be crushing, but also crushing for shareholder value.
00:13:34.000If someone's hired simply because they check boxes and not based on any kind of capability or merit, that seems to be a real problem.
00:13:45.000And another area that this is taking place is so-called ESG, where you get businesses that are basically often publicly agreeing, hey, we're not going to invest in fossil fuels, and the reason we're going to give is that it's bad for the environment.
00:14:01.000That's terrible for shareholder value.
00:14:03.000I mean, like, you know, if these are profitable businesses producing stuff that Americans need to run our cars and our factories and our homes, and these businesses are just agreeing with each other that we're not going to invest in these things.
00:14:27.000So, you know, historically, what has the FTC sort of gotten right?
00:14:32.000And where do you think perhaps they've gotten it wrong over the last few years?
00:14:35.000I think that the FTC does its best work when it's acting like a cop, when it sees someone breaking the law and it goes to court, and it does its best or its worst work when it's a regulator.
00:14:47.000And traditionally, the FTC, we've had rulemaking power for a long time, but the FTC has exercised it pretty sparingly.
00:14:55.000The FTC went on sort of a rulemaking bonanza, you know, with some rules estimated to cost half a trillion dollars.
00:15:03.000And I think that when the FTC is sort of acting like Congress and making laws, that's when it's doing its worst work.
00:15:10.000It does its best work when it's basically patrolling our markets.
00:15:13.000And if it sees a business engaging in real dishonesty or anti-competitive behavior, it takes them to court.
00:15:22.000The FTC does its best work when it understands that business is the engine that drives growth, innovation, and opportunity for all Americans.
00:15:32.000And it sees this job as making sure business plays by the rules, but if it's playing by the rules, the FTC stays out of the mix and lets the markets do their thing.
00:15:39.000And that wasn't the vibe of the last four years.
00:15:42.000Yeah, so obviously as a business guy myself and someone who's run these things, you know, the regulatory framework is perhaps more important than even a tax framework or so many other things.
00:15:51.000What are you guys actively doing to, again, minimize the draconian nature of some of those things?
00:15:57.000I mean, you mentioned some of these programs cost half a trillion dollars.
00:16:44.000The president has issued EO after EO directing agencies and the whole government to attack regulations.
00:16:51.000The one that we're most focused on right now came out a couple weeks ago and it told the FTC to lead the whole government's charge on scouring the entire code of federal regulations.
00:17:02.000For regulations that injure competition, that make it harder for businesses to compete, to grow, to make great products for Americans, to hire American workers, and to recommend back over to the White House, here are a bunch that you should delete, here are a bunch that you should change.
00:17:23.000I mean, the Code of Federal Regulations is hundreds of thousands of pages.
00:17:26.000It's tens and tens of thousands of gargantuan rules.
00:17:30.000We've asked the public, tell us the rules that are preventing you from growing your business.
00:17:35.000Tell us the rules that are preventing you from entering a market, from innovating, so that we can look at them and recommend them for deletion.
00:17:41.000We are going to be issuing guidance to all the agency heads this week.
00:17:45.000Tell us which ones you think are in your portfolio that are anti-competitive so we can recommend them for deletion.
00:17:50.000And most importantly, we're doing this in like 90 days, which for federal government work is unprecedentedly fast.
00:17:57.000But that's been the most important change that this administration has imposed from previous ones is deregulate and deregulate as quickly as you can.
00:18:06.000And that's how you got to get it done, because every government only has a couple years to get this done before all the litigation hits, midterms, etc.
00:18:14.000And the president has understood this, and that's why we're moving fast.
00:18:17.000So, you know, obviously you can do a lot of that with executive order.
00:18:20.000How do you codify some of these things into law so that, you know, the next administration, if it's a Democratic administration, can't just, with a stroke of a pen, put on all the regulations?
00:18:29.000All their lobbyist buddies, all of the people in the swamp who've never created anything, who've never built anything, but sort of have peddled power and influence very effectively.
00:18:37.000How do you make that a long-lasting end rather than simply a means for the meantime?
00:18:45.000Yeah, so I think part of it is when you write...
00:18:50.000We've got the law that tells us how we're supposed to do regulations.
00:18:52.000And then we've got decades of precedent built up on the APA that have added a bunch of layers of work for the agencies when they want to regulate, but also when they want to deregulate.
00:19:02.000The way that a lot of courts have suggested the APA is written is that deregulating can take just as much work and time as writing the regulation.
00:19:10.000I think the approach the administration is taking this time is...
00:19:13.000Deregulate because we think that these rules are illegal, and let's just keep going.
00:19:20.000And yeah, there'll be litigation, but I think that the Department of Justice is going to take very aggressive positions in promoting rescissions of regulations.
00:19:30.000It's not just changing enforcement priorities.
00:19:32.000It's actually going into the code and being like, we're deleting it.
00:19:35.000We're formally announcing this isn't a rule anymore under the APA.
00:19:39.000And then if a subsequent administration wants to come back in and regulate again, they've got to write the rule all over again, and that takes a lot of work.
00:19:46.000But that's the difference, is that in a lot of previous administrations, when you do deregulating, you'll delete a rule here or there, and then you'll issue a bunch of guidance that says, well, we're not going to enforce this rule this way, we're not going to enforce that rule that way.
00:19:57.000No, because they can just flip that guidance January 21st as soon as the new administration comes in.
00:20:02.000You've got to rip them out of the code, and that's what the president has been ordering the agencies to do, and that's what this process is.
00:20:38.000And the mergers come to the agency because we've got a law that says if you want to merge, you have to basically present your merger to the agency.
00:20:44.000And then you have to wait while the agency runs an assessment on whether the merger is lawful.
00:20:50.000And I think that's going to be one of the biggest changes from the last administration.
00:20:56.000Congress has rules about which mergers are competitive and which are anti-competitive, and then tells the agencies, if you think they're anti-competitive, you have to go to court.
00:21:05.000And that seems like a pretty reasonable system, but right underneath the surface of that, there's all sorts of things that the agencies, DOJ and FTC, can do that can slow mergers down.
00:21:16.000And it happened a lot in the last four years, which is a merger comes in and just disappears in the agency.
00:21:22.000And the agency sits on it for months and months and months.
00:21:25.000And emerging parties are like, what's going on?
00:21:28.000Like, what do you think the problems are?
00:21:52.000And I think that this is a huge problem because M&A is part of how we innovate.
00:21:57.000And I think we need to be very realistic that this is how it works.
00:22:00.000Innovators don't normally have their own capital.
00:22:02.000They've got great ideas, but they need access to markets and they need access to capital to build their ideas.
00:22:07.000No one will invest in an idea if they think investing locks their investment forever and they can never get it back out.
00:22:13.000And one of the ways investors get a return on their investment in innovation is that someone can come buy the company and take it to market, help it grow quickly.
00:22:24.000And if you dry up M&A, if everyone thinks the regulators are just going to sort of stamp on M&A and make it really hard to do, who would invest?
00:22:32.000Who would lock their money into some poor, innovative company that can't get bought out?
00:22:37.000And I think we need to be really, really serious about recognizing M&A is part of how this country grows.
00:23:34.000And that is the most important thing we can do, is be very open and honest about our process, about our timelines, about why we're going to do what we're going to do so that businesses can plan, grow, innovate, and make this country achieve the golden age that the president has told all of us he's after.
00:23:51.000So, you know, a big concern lately has been sort of these acquisitions by foreign conglomerates, perhaps even American conglomerates that are just proxies for foreign nations, sometimes bad actors.
00:24:04.000Is that within the scope of the FTC and should there be sort of a heightened concern and scrutiny there if it is, whether it's from an economic or certainly a national security standpoint?
00:24:15.000Yeah, I mean, so the answer in my view is yes.
00:24:19.000Now, like antitrust professor at some Ivy League school would be like, well, that's not the traditional doctrine.
00:24:24.000But when you're an enforcer and you've got limited resources and you have to decide which issues you really want to focus on, a potential merger.
00:24:33.000That sort of ties the American market more to the market of a potential foreign adversary absolutely should matter.
00:24:38.000And we should be looking at that really closely.
00:24:41.000And so part of making America competitive is not just making sure our businesses are competing with each other.
00:24:47.000It's making sure America is competitive against the rest of the world.
00:24:51.000And I think it absolutely should be relevant for how we are thinking about enforcement generally, even if it wouldn't be an argument that we would make to a judge.
00:25:01.000Activity that diminishes America's ability to compete with the rest of the world needs to matter to how we're making enforcement decisions.
00:25:09.000It would be crazy for it not to matter.
00:25:11.000Are there sort of sector-specific concerns that you guys are more focused on than others?
00:25:16.000You know, I know, you know, a big thing that you're doing on, you've gone after sort of big tech.
00:25:21.000I think I know that was, you know, Google, Meta, Uber.
00:25:25.000You know, those seems to be the big one.
00:25:27.000And definitely, you know, sort of concerning to so many Americans who, you know, definitely have been sort of blindsided and sort of single-handedly targeted more, you know, certainly if you're on the conservative side of things.
00:25:46.000And for me, this isn't really sort of like a big antitrust crusade.
00:25:50.000It's just me as an American recognizing what became very clear to all of us in 2020, which is there are a handful of companies that exercise unbelievable amounts of power over our social lives, our political discourse, our elections, our ability to communicate with one another, to communicate our ideas to each other.
00:26:09.000And basically, companies like Meta or Google, they're just different.
00:26:14.000And we need to be really realistic about the importance of making sure that none of these companies can diminish the freedom that you and I take for granted and that we all want to make sure that the government can't do this to us, but making sure that a giant private company can't exercise huge control over our social and political life needs to matter too.
00:26:43.000The president issued an EO to the whole government to take steps to make our health care markets more competitive, to drive our health care prices down.
00:26:52.000He specifically focused on what he called middlemen.
00:26:55.000We've got ongoing litigation against the PBMs.
00:26:59.000We have a huge study on PBM competitiveness that we're running.
00:27:06.000That's the middleman, so people understand.
00:27:09.000That's the middleman sort of between the actual pharma manufacturers who often are the ones that get vilified, you know, and your local pharmacy.
00:27:17.000I mean, they're the guys taking sort of huge margins at certain times, you know, to do all these things when they're not actually doing anything.
00:27:24.000But there's what there's only three PBMs in the whole country.
00:27:26.000So there's, you know, even if it's not a monopoly, I mean, you got three people controlling the flow for very, you know, for all the pharmacies across the nation.
00:27:36.000Yeah, and, you know, I just visited...
00:27:39.000Very near to where I grew up in rural Virginia, an independent pharmacy, and just sat with a pharmacist for an hour and was like, what's it look like from your vantage point in the market, like interactions with PBMs?
00:27:51.000It's hard to be an independent pharmacist out there, and independent pharmacies are part of the lifeblood of small-town America.
00:27:57.000I mean, if you go down Main Street in a small town in rural Virginia, you've got a hardware store, you've got a pharmacy, you've got churches, and you've got a family restaurant or two, and that's sort of the beating heart of the community.
00:28:10.000And independent pharmacies are closing all over the country, and it's really important to me.
00:28:14.000And not just do we have three PBMs that control the overwhelming majority of the PBM market.
00:29:32.000But if you've got lots of competitors in the supply chain, you know, if one falls through because of a crisis, others can fill in the gap.
00:29:40.000And we saw what can happen if you've got sort of monopoly problems during COVID when the supply chain becomes really difficult.
00:29:46.000And good antitrust enforcement that makes sure that there is robust competition means that you won't necessarily have these disasters that lead to massive shortages.
00:29:56.000And that's one of the reasons that I care about so much.
00:29:58.000But food supply, you know, there have been concerns for a very long time about, like, meatpacking and potential monopoly in meatpacking.
00:30:06.000And we saw it when there were all sorts of meat shortages during COVID.
00:30:09.000And our adversary is controlling a lot of those as well.
00:30:12.000I mean, China owns a lot of the meatpackers.
00:30:16.000Yeah, and China bought our principal pork company a couple years ago, and having grown up in farm country, it was kind of scary to think about China controlling that much of our food supply.
00:30:28.000And so I think antitrust can help with supply chain resiliency in a really important way, and that's why it's important to take it seriously.
00:30:36.000But at the end of the day, this isn't sort of like anti-business crusade.
00:30:40.000Antitrust is pro-business because if you wind up with monopoly, then you get Congress coming in and regulating directly, and that's just much worse than having sort of case-by-case antitrust enforcement that promotes resiliency, allows for innovation, and avoids regulation.
00:30:55.000So, Andrew, I would imagine the other place that affects so many people on here, because I know I see it as well, is sort of the inconsistency in the insurance markets.
00:31:05.000Does the FTC take control of some of that?
00:31:07.000Because everything is just sort of delay and deny, delay and deny.
00:31:12.000It almost feels to the point like, what's the purpose of having insurance, even though sometimes you're mandated to actually have it?
00:31:17.000But the premiums are so high, your deductibles are so high, that from the healthcare standpoint, unless you get hit by a bus, you're basically uninsured.
00:31:28.000Are there things that you guys are looking at to do that?
00:31:30.000Because I imagine from a day-to-day basis, you know, outside of healthcare, that's probably the next one that affects the average American the most daily.
00:31:39.000No, you're definitely right about that.
00:31:40.000So our Congress, for reasons you have to go back in time and ask them, wrote out insurance from our mandate, like directly wrote it out.
00:31:49.000The states generally sort of regulate insurance directly, but...
00:31:52.000You know, your relationship with your insurer is driven in part by the price of health care.
00:31:57.000I mean, the insurer's willingness to cover what they cover, why, etc., is largely a function of sort of health care prices.
00:32:05.000And that is something that we have to take very seriously.
00:32:08.000And one of the things we really care about is making sure that, you know...
00:32:13.000The way that pricing normally works in these healthcare markets is hospitals sit down and negotiate with the insurers on what prices they're going to charge for various therapies, treatments, interventions, etc.
00:32:25.000And we promote competition in the hospital markets.
00:32:29.000And if you have a hospital monopoly, they can go to the insurers and being like, yeah, I know what you think you should pay.
00:32:35.000We're going to make you pay a lot more.
00:32:36.000And that is where the FTC does some of its best work, is up the chain, making sure that when...
00:32:42.000When insurers are sitting down with health care providers and negotiating, health care providers don't have so much economic power that they can command high prices, which the insurers are then going to pass on to you and me.
00:33:28.000And if you've got sort of monopoly power being wielded by health care providers, businesses feel the pinch the same as you and me, and they have to pass that on to you and me.
00:33:37.000And so part of how we make sure that businesses aren't drowning in this, too, is promoting competition among healthcare providers.
00:33:42.000Even for businesses who wouldn't think about this, if they're self-insuring, as a huge proportion of American businesses do, they feel the pinch, too.
00:33:50.000And so part of how we are helping businesses outside of the healthcare markets avoid high cost of healthcare is promoting competition in the healthcare markets.
00:33:59.000So Andrew, what specific regulations are still on the books that you see as being anti-competitive?
00:34:04.000And what's the sort of administrative law process to deregulate wherever that's appropriate?
00:34:10.000Yeah, so I think sort of the classic example outside of the FTC are basically licensing type regulations or regulations that require people in order to participate in a business to check a bunch of boxes.
00:34:23.000Those are classic barrier to entry type regulations.
00:34:56.000It's the new guys who don't have the great cash flow yet but have a great idea that could revolutionize an industry and make all of our lives better.
00:35:03.000Those high-cost regulations big businesses can cover and the little businesses and the innovators and the founders cannot.
00:35:12.000So the process that is going to be set up by this EO and by the APA is we're going to get public input on People's actual experiences with these regulations that prevented them from coming up with a good idea and getting it to market.
00:35:24.000And then the agency heads are also going to give us their list and say, look, we think these are probably anti-competitive.
00:35:30.000And then I've got armies of lawyers and economists who are going to take several weeks, because the president wants this done and wants it done quickly, looking at these things.
00:35:38.000And then we're sending a list with our recommendations back to OMB and the White House and saying, we think you should delete these and we should delete these tomorrow.
00:35:46.000And then the APA has a series of ways that you can delete regulations and the agencies will have our recommendations and our proposals for deletion.
00:35:54.000And the president will be like, okay, time, start, go deleting.
00:36:15.000We'll deal with the litigation when it comes, but you've got to push because it's the only way to deregulate.
00:36:20.000And that's what this is going to look like on my end.
00:36:22.000So, I mean, it sounds like you've had a fairly aggressive first hundred days.
00:36:25.000I hope the next hundred days is even more so.
00:36:28.000But, you know, we've seen that, whether it's with DOJ, whether it's with the deportations of criminal legal aliens, you know, there has been a sort of a lot of lawfare, you know, pushing back.
00:36:39.000You know, a district judge is able to overrule the president of the United States.
00:36:43.000And I imagine, based on the way this has been done, obviously through very...
00:36:49.000Partial and individually selected jurists, I imagine they'll try to do the same thing for the FTC.
00:37:06.000We'll make it impossible for him to achieve his goals, even if those were the goals that were the mandate of the American people to get done.
00:37:11.000And then we'll say, oh, look, they failed.
00:37:13.000We're totally innocent on all of this, even if they've weaponized and manipulated a system.
00:37:17.000Yeah, you're totally right about that.
00:37:19.000What we have seen from district courts all over the country the last 100 days shocks even me.
00:37:26.000And look, like I clerked on the Supreme Court.
00:37:28.000I've been in the conservative legal movement, as they call it, for a long time.
00:37:34.000District judges in who knows where thinking that they wield the executive power that the Constitution gives the president and that we just elected the president to wield.
00:38:05.000This is often what happens is sort of like...
00:38:09.000Bureaucratic exhaustion where you go, oh, well, we just had to fight all of the career bureaucrats to get this done and now we have to fight these district judges.
00:38:55.000And I really look forward to seeing what you continue to do and just making sure we get this message out to people so they understand not just what you're doing, but also the obstacles that you are up against so they understand.
00:39:08.000And hopefully we just get to some common sense ground, you know, that we can function as the country we deserve to function as.