• Fighting the censorship of the press and entertainment industry in public comments before the Federal Communications Commission
• Testifying before Congress to urge our representatives to rise above partisan politics and defend the First Amendment from the Trump administration
• Holding independent agencies accountable with oversight hearings while Congress fails to act
• Fighting for policy that prioritizes making the internet safer and privacy-protective for youth online

…and so much more.

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Thank you for supporting our mission. Together, we can build a future where freedom of expression is protected, the internet remains open, and creative endeavors flourish.

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Mind you, the same question could be “why a commission in the first place? Won’t the commissioners of the same party vote together?” Which raises the first point, this isn’t just about minority commissioners. As the Supreme Court observed back when it was less sold on the “Imperial Presidency,” commissioners cannot make independent decisions with the “Damocles’ sword of removal” hanging over their heads. Also, as anyone who remembers the first several years of the Biden Administration will recall, an independent agency (in this case, the Federal Communications Commission) can get stuck with an equal number of members of both parties – creating a deadlock on important issues. So assuming we like independent commissions for certain things (a topic for another time), the question in Trump v. Slaughter is important for its own sake.  

But let’s consider the way an independent commission is supposed to work rather than the broader question of independence generally or the specific case where the president’s party doesn’t have a majority. Why do minority commissioners matter? Won’t they just get outvoted?

Independent Commissioners Used to Actually Be Independent – and May Be Again Someday.

As always, people who don’t follow this for a living assume that the way it is today is the way it’s always been. Commissioners of the same party vote in lockstep, so the chair automatically gets a majority. But this wasn’t always the case. Until relatively recently, you saw members of the chairman’s party refusing to support an item or demanding significant changes. As this usually happens behind the scenes, it doesn’t get much attention from outsiders. But this can only happen when commissioners have security to tell the chair “no” without worrying about being fired.

But this independence also created a world where a member of the chair’s party would dissent, but the chair could build a majority by reaching across the aisle. When I started back during the late Clinton Administration and Bill Kennard was chair, we saw this quite frequently. You would have Chairman Kennard get a majority with Commissioner Susan Ness (D) and then-Commissioner (later Chairman) Michael Powell, while the more liberal Commissioner Gloria Tristani (D) and more conservative Commissioner Harold Furchgot-Roth would dissent (either in whole or in part). Some years later, I would see Chairman Kevin Martin team with Democrats Michael Copps and Jonathon Adelstein to vote out the first net neutrality order. 

More commonly, commission chairs found value in bipartisan votes and the increased legitimacy of a bipartisan opinion. After all, a bipartisan opinion is easier to defend before a congressional oversight hearing (especially when the party that controls the Senate or the House is not the one that controls the White House and therefore the commission majority). And while courts don’t explicitly say they respect a unanimous, or at least bipartisan, decision more than a party-line vote, there seems to be some validity to the assumption (see more below on the role of dissenting commissioners). This allowed minority commissioners to trade a vote in exchange for modifications or concessions. Even if one minority commissioner couldn’t support an item, you could get changes to produce a 4-1 vote. And in a world where precedent is important and precision matters, even things that seem trivial at the time can be vitally important in the long run.

But let’s set aside the idea of a golden age of genuine independence and take our worst case scenario of today. You have a chairman vetted to support the president no matter what, and other commissioners of the same party who will always vote with the chairman and obey the chairman’s commands. Why, then, does a minority commissioner matter?

What Minority Commissioners Actually Do?

I want to work backward from the most obvious to the less obvious. 

What do minority commissioners actually contribute? If you’ve never paid attention to how these agencies work, you might think minority commissioners are just along for the ride, casting futile dissenting votes as the majority does what it wants.

But that misses much of what is important about how these agencies function. The agencies must vote (and get a majority vote) and explain their actions in an opinion. A dissent can have real power. Sometimes it is a moral statement that highlights (at least in the opposing view) what makes the order not simply wrong, but bad. Additionally, dissents often raise legal arguments and facts in the record that contradict the story the majority wishes to tell. This last is particularly important because the Administrative Procedure Act (APA) requires an agency decision to address all issues raised in record. Failure to do so means the court will reverse the majority decision as arbitrary and capricious. 

A well-written dissent, therefore, serves multiple purposes. It highlights legal flaws, or facts the majority would prefer to ignore, forcing the majority to either modify the opinion or justify its reasoning in ways that create accountability to the public, Congress, and the courts. Sometimes the strength of these arguments can force the majority to modify its decision. But at the least, a minority opinion provides an important counter-narrative. This points out another function of a dissenting opinion – dissents as policy development for the future. When a minority commissioner writes a dissent, they’re creating a potential roadmap for opponents to develop and pursue when political control shifts. As we have seen a number of times in the last year, today’s dissent can become tomorrow’s majority position. 

Oversight and accountability: Minority commissioners do more than write dissents. They ask hard questions at agency Open Meetings, questions the majority prefers to avoid. They issue public statements challenging the majority’s version of events. They have the right to demand information and analysis from agency staff, which they can then use to inform the public or members of Congress. They can sound the alarm and verify to the public when the majority is overreaching or when the reasoning falls apart. All of this creates a record that matters: for judicial review, for congressional oversight, and for public accountability. A minority commissioner can shine a spotlight on things the majority might prefer to pass unnoticed, and keep demanding action on matters that the majority would prefer to have forgotten. At a congressional oversight hearing, a minority commissioner can provide answers on the record that contradict the narrative of majority commissioners.

Stakeholder engagement: Regulated parties and public interest groups don’t always agree with whoever’s currently in charge. Minority commissioners provide an alternative point of contact. This allows diverse viewpoints (like public interest advocates!) to get heard within the agency. The minority commissioner can act as an advocate within the agency as well as providing a sympathetic audience for meetings.

But minority commissioners often take a more active role in stakeholder engagement – especially on controversial matters. Minority commissioners are often speakers at events, where they can express their views and urge stakeholders to participate in agency processes. This can create a powerful record and build political pressure. For example, FCC Commissioner Gomez has been a tireless advocate for the First Amendment, going on a “First Amendment Tour” to help mobilize public opinion against weaponizing the FCC’s power over broadcasters to silence critics. This is especially important outside of Washington D.C., where a public event or hearing by an FCC commissioner can be a very big deal, attracting hundreds of participants and making local news. In the past, minority commissioners have used outside events to mobilize the public to resist media consolidation, support net neutrality, and highlight the lack of broadband or even basic telephone service in rural areas. 

How Minority Commissioners Make Agencies Work Better

I’ve focused so far on direct opposition by minority commissioners to the agenda of the chairman with a majority. But while these head-to-head clashes get the bulk of public attention, most work of independent commissions is more technical and less ideological. Certainly there are often differences in approach among commissioners. But in these cases the presence of minority commissioners actually makes agencies function better through collaboration.

Participation in non-ideological work: Most agency work has no ideological valence at all. Technical rulemakings, routine enforcement actions, spectrum allocations, and lots more: a huge amount of this work proceeds with bipartisan agreement. Minority commissioners often contribute substantively to this work. Even if there aren’t strong ideological issues, minority commissioners often bring different approaches and different concerns based on their life experiences. Their expertise doesn’t disappear just because they’re outnumbered on some high-profile votes, and smart chairs know how to keep a good working relationship with their minority party colleagues.

Rather than a point of conflict, this difference in perspective makes the agency work better. Commissioners from different political parties often come from different backgrounds and may relate differently to different constituencies. Minority commissioners may feel more free to raise potentially controversial points with the chair, since they are not expected to be “loyal soldiers” for the chair’s agenda.

Moderating influence. Often, the differing perspectives of independent minority commissioners can also have a moderating influence on the commission’s decision-making. Again, it is important to keep in mind that the last few years where political parties seek to emphasize their differences are the exception. But even in the extreme case, having members of the opposing party in the room with whom one must deal on a regular basis on nonpartisan issues can temper the rhetoric and move the majority to a less extreme view. 

Institutional continuity. Staggered terms mean some commissioners carry over between administrations. When the minority becomes the majority, they already know the issues, the staff, and the pending matters. This institutional knowledge persists across transitions. That persistence is impossible if every administration starts from scratch. And bipartisan decisions are harder to reverse, so the minority’s participation in building consensus creates policy stability that serves everyone.

Democratic legitimacy. In our polarized era, roughly half the country is going to disagree with whoever holds the White House. The bipartisan commission structure guarantees that roughly half the country has representation in agency decision-making, including when they’re in the minority. This allows people to feel like the agency has institutional legitimacy, even when they may disagree with its specific decisions.

We Reserve Independence for When It Matters. 

Finally, it’s worth noting that independent commissions are fairly rare. Generally, Congress lets presidents select their own teams – subject to the need for confirmation. Traditionally, Congress reserves creation of an independent commission for matters that require some insulation from the president because they are highly technical, have outsized influence on the economy, or are particularly essential to democracy. The first independent commission was the Interstate Commerce Commission, created in 1887. The ICC regulated the most important industry of the time – the railroad. Other examples include the Federal Trade Commission (which potentially regulates most of the economy), the National Labor Relations Board (because the relationship between organized labor and capital is potentially subject to political meddling as well as having impact on the economy), and the Securities and Exchange Commission (responsible for ensuring capital markets work with fairness and transparency, and therefore a prime target for cronyism and political meddling with enormous influence on the economy). 

Nothing illustrates this better than the story of the creation of the Federal Radio Commission in the 1920s. Before the Federal Radio Act of 1927, radio licenses were handled by the Department of Commerce. The legislative history shows why, when Congress decided it needed to seriously consider the regulation of radio, it rejected that approach and chose to create an independent, bipartisan commission. 

By the mid-1920s, radio had exploded from a tool for ship-to-shore communication into a mass medium transforming American culture. The existing regulatory framework gave the Secretary of Commerce only ministerial duties. It was completely inadequate, and Congress needed to act. But when it considered simply expanding the Secretary’s authority, it ran into fierce opposition.

Representative Johnson of Texas captured the stakes perfectly when he told his colleagues:

There is no agency so fraught with possibilities for service of good or evil to the American people as the radio. As a means of entertainment, education, information and communication it has limitless possibilities. The power of the press will not be comparable to that of broadcasting stations when the industry is fully developed. If the development continues in the future as in the past, it will only be a few years before these broadcasting stations, if operated by chain stations, will reach an audience of over half of our entire citizenship, and bring messages to the fireside of nearly every American home. They can mold and crystalize sentiment as no agency in the past has been able to do.

[69 Cong. Rec. 5558 (Mar. 13, 1926)].

In 1926, members of Congress understood that whoever controlled the airwaves could “mold and crystalize sentiment as no agency in the past has been able to do.” The question was whether that power should sit with a political appointee serving at the president’s pleasure. They said no.

Even Herbert Hoover agreed. Hoover was then Secretary of Commerce, the very official who stood to gain power under the alternative approach. As he testified to Congress: “I have always taken the position that unlimited authority to control the granting of radio privileges was too great a power to be placed in the hands of any one administrative officer.” [H.R. Rep. No. 69-464, at 19 (1926)]. He elaborated: “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public.” [69 Cong. Rec. 5484 (Mar. 12, 1926)].

The House of Representatives initially passed a compromise that gave initial authority to the Secretary of Commerce, with oversight from an independent commission. But the Senate rejected even this half-measure. Senator Clarence Dill, Chairman of the Senate Commerce Committee, explained in the Senate Report: “The exercise of this power is fraught with such great possibilities that it should not be entrusted to any one man nor to any administrative department of the Government.” [S. Rep. No. 69-772, at 2 (1926)].

The Senate won that fight. The Federal Radio Act of 1927 created a fully independent commission with bipartisan membership, which evolved into the FCC we know today. And as we have seen over the past few months, the Senate was right. We have a president eager to use the FCC’s authority over broadcasters to shape news coverage and prevent comedians from mocking the President. The presence of Democratic Commissioner Anna Gomez has made it much more difficult for FCC Chairman Brendan Carr to advance this agenda. At every available occasion, Commissioner Gomez has sounded the alarm and created a counter-narrative to efforts to weaponize the FCC.

By contrast, there is no such opposing voice at the Federal Trade Commission. Chairman Andrew Ferguson and Commissioner Mark Meadows have been free to engage in conduct such as harassing watchdog organizations such as Media Matters who have publicly criticized the President and his allies, allowed mergers to proceed with conditions designed to favor conservative viewpoints, and to hold hearings on whether gender affirming care somehow violates the law. Without a dissenting voice such as that of Commissioner Slaughter to constantly call attention to these actions, they fly under the radar.

Conclusion: Minority Commissioners Matter.

The independence of commissions matters for its own sake. Ideally, even the majority commissioners act with freedom on important issues. But even in times such as these, when majorities work in lockstep and the chairman looks to the president for directions, the presence of independent minority commissioners makes a difference. At a minimum, minority commissioners shine a spotlight on the actions of the majority. But equally importantly, minority commissioners play an important role in the day-to-day operations of important regulatory bodies. As the last few months have shown, the FTC performs more poorly without representation of the other political party, while the FCC performs better with a minority commissioner.

The post Why the Minority Party Matters for Independent Agencies appeared first on Public Knowledge.

In March 2025, our organizations hosted a policy fly-in with digital navigators from 14 states. We held more than 60 meetings with congressional offices and the Federal Communications Commission as we brought the human impact of digital inclusion work directly to policymakers. Digital navigators shared how affordable, reliable broadband and digital skills transform lives, expand opportunities, and empower communities. Our D.C. policy fly-in and other community events across New Mexico, Georgia, and Ohio, demonstrated that people outside of the Beltway possess unique skills and passion to transform our digital ecosystem for the better. This successful mobilization of people from across the country could translate into a sustainable network of engagement – if we cultivate it. Together, we can demonstrate that policy is indeed personal, and that is not a vulnerability – it is a strength. 

The Connectivity Policy Corps will provide a sustained platform for 18 digital inclusion practitioners from 14 states including Alabama, Alaska, Arizona, Arkansas, Kansas, Louisiana, Nebraska, New Mexico, New York, North Carolina, Ohio, Texas, Utah, and West Virginia , which will better ensure broadband policies are shaped by community-driven ideas. Members will receive exclusive training by policy experts as well as access to advocacy tools, networking opportunities, and a professional development certificate. Participants will actively engage with congressional staff, state policymakers, and federal agencies to advance digital equity, expand broadband affordability solutions, strengthen consumer protections, and drive meaningful reform to the Universal Service Fund. 

Those working to connect our communities are confronting a moment where there is a sense of scarcity manufactured by those in power, including policymakers and industry. Their neighbors feel the weight of inevitability, as economic pressures and systemic barriers leave millions of households disconnected. The CPC aims to turn these frustrations into action by centering community voices and equipping advocates with the tools to shape and influence policy that will yield a more equitable, creative, and connected future.

Learn more about the CPC program and how you can join the movement to advance digital equity and shape a more inclusive digital future here.

The post Connectivity Policy Corps: Building Policy With Community appeared first on Public Knowledge.

Broadband access, affordability, and adoption have a direct impact on access to education, economic opportunities, healthcare, and civic participation. Without the input of local digital equity practitioners and the communities they serve, broadband policies risk overlooking real-world challenges and solutions. By amplifying these voices and the needs of their communities, the CPC aims to foster collective power that advances digital equity in meaningful and measurable ways.

The Connectivity Policy Corps will provide a sustained platform for 18 digital inclusion advocates from 14 states including Alabama, Alaska, Arizona, Arkansas, Kansas, Louisiana, Nebraska, New Mexico, New York, North Carolina, Ohio, Texas, Utah, and West Virginia, which will better ensure broadband policies are shaped by community-driven ideas. Members will receive exclusive training by policy experts as well as access to advocacy tools, networking opportunities, and a professional development certificate. Participants will actively engage with congressional staff, state policymakers, and federal agencies to advance digital equity, expand broadband affordability solutions, strengthen consumer protections, and drive meaningful reform to the Universal Service Fund.

The following can be attributed to Chris Lewis, President and CEO of Public Knowledge:

“The Connectivity Policy Corps will help equip advocates with the tools, strategies, and networks they need to champion equitable and affordable connectivity in their own communities – regardless of who’s in the White House. As we sit on the cusp of the next digital revolution with artificial intelligence, the need for affordable and inclusive broadband access has never been greater. We welcome the first cohort of the Connectivity Policy Corps and look forward to their leadership on the technology issues impacting their communities most.”

The following can be attributed to Angela Siefer, Executive Director of the National Digital Inclusion Alliance:

“Through the Connectivity Policy Corps, NDIA is building a cohort of community leaders who can speak directly to the challenges and opportunities of digital access, affordability, and safe use. By equipping them with policy knowledge, advocacy tools, and national connections, we’re ensuring that local voices are at the forefront of shaping our nation’s economy, society and democracy.”

You may learn more about the Connectivity Policy Corps in our latest article, “Connectivity Policy Corps: Building Policy With Community,” or visit the program’s official website for details.

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The political pressure to act is immense, with nearly every week bringing another devastating story of a child harmed after using an online platform – yet few new federal laws have passed to regulate these platforms. A previous version of KOSA passed with an astonishing 91 votes in the Senate in July 2024, only to stall in the House when Speaker Mike Johnson blocked the floor vote over free speech concerns. Many kids-focused online safety bills find a similar fate, because these are speech platforms after all, and Congress shall make no laws abridging freedom of speech. There are fundamental tradeoffs to most of the bills in the Kids Package, which makes consensus elusive. 

Complicating things, there was reporting that lawmakers considered attaching the (so far failed) AI regulation moratorium to the Kids Package, and shoehorning both into the must-pass National Defense Authorization Act (NDAA). Proponents theorized that the first attempt at an AI moratorium failed because of bipartisan concern that it could hamstring states’ ability to enact laws regulating AI and protecting kids. Under this theory, pushing through some of the bills in the Kids Package would assuage concerns about kids’ online safety. This theory is a mess for a number of reasons, even if there were a world in which many of these consistently controversial kids’ bills would miraculously gain broad support. 

For one, opposition to the AI moratorium is not limited to concerns about kids’ online safety laws. Lawmakers and advocates worry about AI’s effects on employment, discrimination, surveillance, the integrity of information, and about a million other concerns. Since states are more agile than Congress, they need the flexibility to experiment with new regulations for emerging technologies to safeguard their citizens and maintain economic competitiveness – a point reiterated in the December 2 hearing by opponents of preemption language in the Kids Package bills. 

After years of hearings about kids’ safety online, Congress has little to show for its efforts. Beyond KOSA and COPPA 2.0, the bills in the latest package are a scattershot approach, like throwing spaghetti at the wall and seeing what sticks. Proposals range from user safeguards, to privacy-invasive surveillance requirements, to outright bans on minors using certain platforms. Nearly every bill has problematic elements, with preemption language and Federal Trade Commission enforcement among the most common issues. 

State Preemption as the Poison Pill

The broad state regulation preemption language in several bills is especially concerning. Although uniform federal standards offer benefits, they also hinder states from experimenting with various approaches to children’s online safety – a critical point given our decidedly unproductive Congress. It would be unfortunate if preemption clauses in Kids Package bills set an upper limit on online safety legislation: federal law should establish minimum standards for digital regulation, setting a baseline rather than a ceiling. Many lawmakers at the December 2 hearing believe this, too, suggesting that preemption language complicates an already contentious bill negotiation, with KOSA perhaps the most contentious. 

We’ve seen many versions of KOSA since it was first introduced in 2022. This latest version of KOSA defanged the more controversial parts of the bill, specifically the “Duty of Care,” which would have held platforms responsible for reducing harms or face lawsuits. People across the political spectrum argued that the duty of care could lead platforms to overmoderate, removing broad categories of content that could be harmful for kids, but could also be useful to them. For example, a commonly discussed online harm, especially to teenage girls, is from content glorifying eating disorders. Yet, the duty of care provision could not only sweep up content that encourages eating disorders, but also content offering resources for those recovering from them. 

The current House version instead requires platforms to establish “reasonable policies, practices, and procedures” to address specific harms, including threats of violence, sexual exploitation, drug sales, gambling, and financial fraud. This change, in our view, makes the bill more workable. KOSA also includes other provisions we can get behind, such as requiring default settings for high-risk features like going live or messaging with strangers, with the option for users to opt-in to these features with parental consent or age confirmation. However, the House bill also includes language that preempts state laws related to KOSA provisions, which could hamstring more comprehensive kids online safety regulation in the states, making the House version of KOSA one we cannot support. One step forward, two steps back. 

The Problem With FTC Enforcement 

Many of these bills rely on FTC enforcement, supplemented by state attorney general actions. However, not only do these bills add substantial new responsibilities to an agency already stretched thin, but President Trump’s FTC has made no secret of its willingness to pursue culture-war issues and political vendettas rather than act in accordance with its statutory mission. This is especially true given that the FTC still lacks Democratic commissioners and that Commissioner Rebecca Slaughter remains barred from performing her appointed duties. As we asserted when the President first terminated Commissioners Slaughter and Alvaro Bedoya, “the FTC was designed explicitly as a bipartisan, independent agency to protect consumers from industry abuses.”  

Yet this FTC makes no secret of its wish to act on ideological grounds rather than fulfill its congressionally mandated duties. For instance, the FTC issued a civil investigative demand into Media Matters for America, a liberal media watchdog nonprofit, for its research on X’s advertising placement next to pro-Nazi and antisemitic content. The court found the FTC acted in “retaliatory animus” and Media Matters suffered irreparable First Amendment injury. 

As Public Knowledge wrote in an amicus brief to the Supreme Court in Trump v. Slaughter, “A commission that can be directed to investigate critics, or shield allies, no longer functions as a neutral enforcer of law.” It is not hard to imagine an FTC that goes after social media companies for failing to act in ways that please the President, using its enforcement authority given by some of these kids’ safety bills as justification. 

What Next

Fortunately, although the idea of tying the AI moratorium to this Kids Package and including it in the must-pass National Defense Authorization Act was considered, it was quickly abandoned. Only a few of these bills in the Kids Package have bipartisan support, while many also face bipartisan opposition. Meanwhile, the AI moratorium itself remains unpopular, even among Republicans. Two unpopular ideas do not make a popular one.

The debate over kids’ online safety will persist, with three notable issues emerging from this most recent hearing: 1) how to handle KOSA’s duty of care, 2) whether the preemption clauses in these bills are excessive, and 3) whether the FTC enforcement provisions in these bills are suitable given the current priorities and structure of the agency. 

In the coming weeks, we will wade further into this conversation by providing a more in-depth analysis of the bills considered in this Kids Package, identifying which ideas we can get behind and which elements of these bills give us pause, through the lens of policy principles outlined in our paper “Kids Aren’t Alright: How To Build a Safer, Better Internet for Everyone.”

The post The House Throws Spaghetti at the Wall with Messy Kids Online Safety Package appeared first on Public Knowledge.

Public Knowledge staff who normally attend the dinner asserted that attending this year felt different. The FCBA dinner is, at least partly, intended to raise money to provide college scholarships to students – an important cause to ensure a robust pipeline of quality graduates find their way into the tech policy space (including to organizations like Public Knowledge). But it also gives the FCC chair a platform for a speech in the form of a comedic set.

At a time when Chairman Brendan Carr has been using regulatory power to silence President Trump’s critics and reward his allies, including attacks on Jimmy Kimmel (which temporarily forced the comedian’s show off the air in September) and new attacks on Seth Meyers, another late-night comedian, just last month, we bristled at the idea of Chairman Carr using his right to free speech in a standup performance while bullying comedians for doing the same. Chairman Carr has not hesitated to publicly threaten to punish media who step “out of line” by revoking their broadcast licenses.

Chairman Carr’s threats clearly weaponize the agency against media who disagree with the Trump administration – and they also clearly strike at the First Amendment protection of free speech and a free press. For this reason, Public Knowledge joined with Free Press and TechFreedom to ask attendees to wear a “Federal Censorship Commission” pin and to open dialogue with fellow attendees about the FCC’s censorship efforts under Chairman Carr’s leadership. Outside the event, we projected onto the building directly across the street from the dinner entrance a call to action: Tell FCC To Serve the Public, Resist Censorship, and Uphold the First Amendment.

Our message is clear: The FCC should serve the public – not the president. You can learn more about how our First Amendment rights are under attack by the Trump administration and urge Congress to conduct oversight hearings of the FCC and other independent agencies today.

The post Resisting Censorship: Why We Took a Stand at the FCBA Dinner appeared first on Public Knowledge.

In today’s digital world, a handful of tech giants control much of what we see, buy, and say online. Companies such as Google, Amazon, Apple, and Meta dominate their markets so thoroughly that competition has become almost impossible. While this dominance can bring convenience for consumers, it also carries risk. When one platform becomes so dominant that it is the only realistic option, consumers lose meaningful alternatives, eliminating the power of choice. Furthermore, monopoly power limits innovation and quality. A lack of serious competition provides little incentive for companies to improve user experience or address harmful business practices.

In contrast with the EU, the U.S. continues to rely on enforcement through the Sherman Act, the Clayton Act, and the Federal Trade Commission Act. These laws, while foundational, were written for the industrial era, not the digital one. As a result, consumers experience harms from platform concentration long after these platforms have been entrenched. The U.S. has addressed many of these harms through multiyear litigation (and, as the recent loss in the Meta case shows, the government may invest years and millions of dollars only to walk away with nothing gained). But to remain a leader in the evolving global tech market, the U.S. needs to adopt similar future-forward digital competition policies promoting fairness, innovation, and accountability.

The European Union’s Digital Market Act’s Influence

The DMA takes a proactive approach to regulating the digital economy. Rather than relying on slow, case-by-case enforcement, it sets clear ex ante (before harm occurs) rules for large “gatekeeper” platforms to ensure fair competition. These rules ban practices like self-preferencing (favoring own products or services), tying (conditioning access to one product or service on the mandatory use of another), and leveraging dominance across markets. They also require interoperability, data portability, and greater transparency.

The DMA’s logic is rooted in the idea that markets function best when the most powerful actors are subject to proactive obligations that allow competition to flourish. This rules-based model has begun to influence digital governance worldwide in what scholars refer to as the “Brussels Effect.” Policymakers beyond Europe are adopting similar updates to address digital competition. 

Global Advancements: Case Studies on DMA’s Influence

DMA Concepts in South Korea

South Korea lacks an independent law that mirrors the DMA’s provisions, but similar reforms are underway. The Korea Fair Trade Commission (KFTC) is under the umbrella of the country’s primary competition/antitrust statute and regulates platforms under the Monopoly Regulation and Fair Trade Act (MRFTA).

In December 2023, the KFTC proposed the Platform Competition Promotion Act (PCPA), modelled in part on the DMA, to designate “dominant platform operators” and impose ex-ante obligations on self-preferencing, multi-homing restrictions, most-favoured-nation (MFN) clauses, etc. Facing political and trade pushback from the U.S., the PCPA was withdrawn; but more modest amendments to the MRFTA are still being pursued. 

There are distinctions in South Korea’s approach. While the DMA independently sets high turnover/market-cap thresholds and imposes broad ex-ante obligations, South Korea’s approach adopts similar logic through their existing law. The details (thresholds and designation) remain in flux. Additionally, South Korea’s market conditions are somewhat different (smaller domestic market, strong local tech players, high competition in many segments) which further shape the development of these rules.

DMA Concepts in Brazil

Brazil is also moving toward a DMA style framework, actively building a “Brazilian DMA” which is aimed at addressing competition and fairness issues in its digital markets.

Brazil’s current system is Law No. 12.529/2011, the country’s main competition law, which empowers the Administrative Council for Economic Defense (CADE) to investigate anti-competitive conduct, mergers, and abuses of dominance – but, unlike the DMA, only after harm occurs (ex post). Brazil’s Bill No. 2,768/2022 (see also), introduced in November 2022, closely resembles the structure and intentions of the DMA. It covers “essential access control power holders” and sets a relatively low designation threshold of at least BRL 70 million. Designated firms would face obligations on transparency, non-discrimination, and access. Likewise, the Ministry of Finance and CADE launched a consultation to define “systemically relevant digital platforms,” the results of which were later incorporated into Brazil’s 2025 “Fair Competition in Digital Markets” bill. This bill targets the same conduct DMA seeks to prevent: tying of services, discrimination, or abuse of dominance. 

Brazil shares the DMA’s preventive philosophy but differs in structure, with lower thresholds and shared enforcement between the Agência Nacional de Telecomunicações (National Telecommunications Agency) and CADE. Fines could reach 20 percent of turnover (double the DMA’s cap). Although not yet enacted, Brazil’s reforms show clear momentum toward preventive digital regulation; clear evidence of the Brussels Effect spreading to Latin America.

Attempted Implementations in the United States

The U.S. risks becoming a policy laggard in a domain it once dominated. While Brazil and South Korea are taking steps toward constructing DMA-inspired hybrid frameworks with ex ante elements or making targeted reforms, the U.S. has not made such advancements. The Trump administration has condemned the EU’s DMA as discriminatory toward U.S. tech companies, framing it as an attack on American innovation and free speech. In response, it has threatened retaliatory measures, including tariffs and sanctions, while the EU insists the law applies equally to all firms and reflects its sovereign right to regulate digital markets. Meanwhile, it’s not just the EU, South Korea, or Brazil – more countries are moving ahead with proactive, flexible regulatory frameworks that address digital dominance before it distorts the market. 

The U.S. currently relies on enforcement of existing antitrust laws through court rulings. The U.S. has piecemeal legislative proposals, but momentum for passage and implementation has slowed. High-profile cases like United States v. Google (2020) and FTC v. Meta demonstrate both the power and the limitations of this model. But litigation takes years; by the time enforcement concludes, markets have shifted, competitors have vanished, and consumers have little recourse. Legislative efforts to modernize antitrust policy, such as the Open App Markets Act (opening up the app markets), and the American Innovation and Choice Online Act (prohibiting platform self-preferencing and discrimination), can be the proactive approach to platform regulation that consumers need. Currently, neither of these acts have been considered past introductions.

Adopting new competition legislation which accounts for evolving tech would not only bring U.S. policy in line with global developments but also create a more balanced, forward-looking framework. For the government, proactive regulation offers predictability and efficiency. Clear rules prohibiting harmful behaviors (self-preferencing, tying, leveraging dominance across markets, etc.) could reduce the need for protracted litigation and make enforcement more consistent. For companies, ex ante obligations could foster compliance and level the playing field for responsible groups, preventing unfair practices by everyone. Entrepreneurs could benefit from fairer access to digital marketplaces, stimulating innovation and entry into spaces previously dominated by a few tech giants.

Ultimately, consumers stand to gain the most. Reduced gatekeeping and increased platform accountability could mean better choice, prices, and transparency. Instead of stifling innovation, proactive regulation can restore dynamic competition and rebuild public trust in digital markets. Thus, we can ensure that growth in tech innovation matches public interests and long-term economic stability.

Costs to the United States: Why We Need to Adopt Proactive Policies 

In the absence of the U.S.’s own competition regulation, U.S.-based consumers will be left adapting to rules made elsewhere. To that end, the U.S. must pass digital platform competition legislation now. For consumers, platform governance rules like data portability, interoperability, and low switching costs would create genuine market choice.

The U.S., for the sake of the public interest, cannot afford to remain a bystander while other regions define the next generation of digital governance. A U.S. path toward competition regulation need not be abrupt. Congress could revive and refine stalled legislative proposals such as the Open App Markets Act, embedding them within a broader national strategy for digital competition. Establishing a dedicated digital regulatory agency with the mandate to enforce such pro-competition legislative proposals would go a long way in improving coordination and oversight. Instead of being stagnant, the U.S. can seize the opportunity to shape, rather than follow, global digital governance norms. Oversight should balance innovation and accountability, ensuring that competition rules serve both economic growth and the public interest.

The post Stuck at the Start: A Call for the United States to Act on Digital Competition Law appeared first on Public Knowledge.

The statute governing FTC commissioners directly prohibits these firings. Under 15 U.S.C. § 41, commissioners may be removed by the president only “for inefficiency, neglect of duty, or malfeasance in office.” Policy disagreement is not among the permitted grounds. A federal court correctly declared the attempted removal unlawful. The D.C. Circuit Court agreed. 

Commissioner Slaughter won in the courts below because the law, as it stands, is on her side. So the Trump administration is now asking the Supreme Court to change the law by overturning decades of precedent and ruling that Congress has no power to create independent agencies – agencies that are democratically accountable, but insulated from partisan politics. 

This question hinges on the so-called “unitary executive” theory, which claims that all executive power is concentrated in the president and that any congressional limits on personal, presidential control of the federal government violate the Constitution. This theory has been a favorite conservative legal theory for some time, was embraced by Project 2025, and indeed, the year 2025 has seen its full flowering: from President Trump firing the members of the U.S. Commission of Fine Arts (a purely advisory body that might have disagreed with some of his aesthetic choices for federal buildings), to arranging to have himself named the chair of the board of the Kennedy Center, to trying to wrest control of monetary policy away from the Federal Reserve. (When it comes to ordinary civil service jobs, don’t worry, the White House has you covered: Draft regulations claim that the 1978 Civil Service Reform Act, designed to protect the civil service from politicization, are “unconstitutional overcorrections” to past abuses.)

As we have argued in our brief in this case, the unitary executive theory is wrong. And if the Supreme Court allows President Trump to ignore the law and fire independent commissioners anyway, the consequences will reshape American government in ways its proponents may soon come to regret.

How the Unitary Executive Theory Misreads the Constitution

The unitary executive theory rests on two constitutional provisions. Article II’s Vesting Clause states that “the executive Power shall be vested in a President of the United States of America.” The Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” From these provisions, proponents derive sweeping presidential authority over every federal official, including unlimited removal power.

It’s wrong.

The Vesting Clause doesn’t define executive power. It simply identifies who possesses it. As Professor Caleb Nelson, a legal scholar the the University of Virginia observes, “one must still figure out what ‘the executive power’ is.” He continues, 

Executive power entails executing laws and judgments made by others, such as statutes enacted by Congress and judicial judgments rendered by courts. The President is not in charge of the content of those laws and judgments. Nor does the Constitution guarantee the President any particular means of enforcing them. To the contrary, the power to execute the law is itself subject to the law; executive officials are allowed to use only the resources that the law makes available for this purpose, in the way that the law allows them to be used.

The Constitution itself does help us figure out what “executive power” means in practice by giving the president specific duties and authorities. For example: the president signs and vetoes legislation. The president serves as Commander in Chief of the armed forces. The president grants reprieves and pardons for offenses against the United States. The president makes treaties with the advice and consent of the Senate. The president nominates ambassadors, judges, and other officers.

These are express constitutional powers. Without a constitutional amendment, Congress cannot transfer these powers elsewhere or insulate them from presidential control. Congress cannot delegate the power to veto legislation to some other official. Congress cannot create a “pardoning commission” to take away that power from the president (even though, right now, that seems like a good idea). Congress cannot divide command of the armed forces among multiple officials protected from presidential removal. These functions belong to the president because the Constitution assigns them to the office. 

And, far from giving the president the power to disregard laws he views as infringements of his power, the Take Care Clause imposes a duty: the president “shall take Care that the Laws be faithfully executed.” When Congress enacts a statute providing that FTC commissioners may be removed only “for inefficiency, neglect of duty, or malfeasance in office,” that statute is the law the president must execute.

The unitary executive theory locates broad and unchecked presidential authority in these vague clauses. But the Constitution gives Congress explicit power to determine how the government is structured. You don’t have to be a constitutional scholar to understand how definitive Article I, Section 8 is. Congress is assigned the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

So, when Congress exercised its constitutional authority under the “commerce clause” to create the FTC, it also exercised its authority under the Necessary and Proper Clause to determine how the FTC should operate. How laws are to be enforced is as much the prerogative of Congress as the substance of the laws themselves.

The Supreme Court unanimously upheld for-cause removal protection in Humphrey’s Executor v. United States (1935). Congress relied on this framework to create dozens of independent agencies – the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, and many others.

Congress structured the FTC as an independent, bipartisan body because the agency regulates competition and consumer protection across nearly every sector of the economy. The FTC’s investigative powers rank among the broadest in the federal government – the agency can compel documents, require testimony, and investigate business practices throughout the economy. This power should be apolitical – while Commissioners from different parties may have different economic and enforcement priorities, the FTC’s powers should not be used for partisan purposes or to advance unrelated ideological interests. Enforcement decisions –  especially those that could favor established firms over new entrants or shield powerful industries from scrutiny – should rest on evidence rather than political pressure. The FTC’s structure has served the nation and Presidential administrations of both parties well.

The Current FTC Shows the Danger of Politicization 

Recent events demonstrate what happens when independence gives way to politics. Following the removal of the Democrats from the Commission, the FTC has effectively ceased to function as an independent agency. The current FTC Chairman has even publicly stated he does not believe in FTC independence.

The Commission imposed conditions on the Omnicom-IPG advertising merger requiring commitments about the companies’ participation in advertising “boycotts” – but advertisers’ and their agencies’ media buys are a matter of editorial discretion with no relationship to market concentration, competitive effects, or consumer harm under the Clayton Act. Merger review properly focuses on whether a transaction substantially lessens competition. Conditions addressing unrelated political controversies exceed statutory authority and suggest that merger approval depends on political alignment.

The Commission convened a workshop titled “The Dangers of ‘Gender-Affirming Care’ for Minors” – a politically contentious topic with no connection to the FTC’s mandate to prevent unfair or deceptive commercial practices. The workshop featured no consumer complaints and advanced no enforcement action, serving only to inject the agency into a divisive social debate outside its jurisdiction.

Most troubling, the FTC opened an investigation into Media Matters for America after the nonprofit published reporting about advertisements appearing adjacent to antisemitic content on X (formerly Twitter), after Elon Musk, an on-again, off-again Trump ally, gained control of the platform. The Commission issued civil investigative demands seeking all documents related to Media Matters’ evaluation of media platforms, communications with advertisers and technology companies, comprehensive financial records, and complaints about its reporting. A federal district court found that “retaliatory animus was the but-for cause of the FTC’s” investigation and blocked it, and the D.C. Circuit affirmed, but that does not undo the harm. This investigation deployed the agency’s investigative authority as a weapon against protected speech critical of powerful political figures.

As former FTC officials have warned, “A system of competition law quickly loses its legitimacy when … an elected official can force the agency to file cases to harass political adversaries, to fulfill campaign promises to contributors (even worse, to make good on bribes), or to shield incumbent economic interests from challenge by new firms or business models[.]” 

What Happens If President Trump Wins at SCOTUS

If the Supreme Court invalidates for-cause removal protection, dozens of independent agencies would lose their constitutional foundation. The President could fire commissioners at will for any reason or no reason at all. (Which to be clear, he has been doing all year. The question is whether it has been legal.)

But there’s another dimension. If the Court rules that the President has unlimited removal authority, that authority will not remain solely in Republican hands. A progressive president facing a federal government populated by Trump appointees could (and in light of President Trump’s reasoning, should) exercise the same power to clean house. Any commissioner at any agency could be removed and replaced on day one.

The next progressive President will have no choice but to use the tools that President Trump has consolidated in the White House. The extensive deregulation, climate policy rollbacks, weakened consumer protections, could all be reversed by a new administration exercising the very authority President Trump claimed. The FTC could aggressively enforce antitrust law against technology giants and healthcare monopolies. The FCC could restore net neutrality. The SEC could crack down on corporate fraud and require climate risk disclosures. The NLRB could strengthen worker protections.

Personally, I am looking forward to that day. But this is not an argument that the unitary executive theory is correct: just that it may be needed to fix its own abuses. It is also a warning to its proponents about what they are creating. Political power does not stay in the same hands forever.

Why A Limited Presidency Serves Progressive Causes Better

But while progressives might be tempted to embrace the powers President Trump seeks permanently – “Just think of all the good we could do!” – the better course (after the inevitable housecleaning) is re-imposing structural limits on executive authority. 

Regulatory agencies insulated from political pressure can pursue long-term goals beyond election cycles. They can develop expertise in complex technical areas. They can maintain enforcement priorities even when politically inconvenient.

The FTC’s independence allowed the Biden administration to investigate politically powerful technology companies despite objections from prominent Democrats. Historically, the NLRB’s independence has permitted it to protect workers’ rights even when complicating relationships with business interests, and the SEC’s independence enables it to pursue securities fraud regardless of political connections.

A strong Congress is better for democracy than an imperial presidency. The Framers designed a system where Congress, representing diverse constituencies of voters, would be the primary source of policy. An all-powerful executive who can reshape government institutions at will concentrates too much authority in too few hands. It essentially recreates the absolute monarchy against which the founders rebelled. We should not have to wait for a “good” emperor to achieve progressive policy goals. Democratic governance works best when power is distributed, debated, and constrained by law. The current president, and the current Supreme Court, may not agree with this. But eventually it will be time to rebuild.

The post No One Wins Under the Unitary Executive Theory appeared first on Public Knowledge.

Additionally, it would empower the Commerce Secretary to restrict disbursement of federal broadband nondeployment funds from states with AI laws that he deems “onerous.” The Executive Order also directs the Federal Trade Commission to explore whether the FTC Act’s prohibition on engaging in deceptive acts or practices prohibits states’ efforts to avoid bias and discrimination in AI models. Finally, it directs the Federal Communications Commission and the Special Advisor for AI and Crypto to prepare rules establishing a uniform Federal regulatory framework for AI that preempts state AI laws. The draft order provides no legal authority for this directive.

Public Knowledge finds this proposed Executive Order both an illegal and illogical attempt to bully states into complying with the Trump administration’s demands to abandon all consumer protection efforts in the face of AI – at the exact moment Americans need these protections the most.

The following can be attributed to Nat Purser, Senior Policy Advocate at Public Knowledge:

“Rather than doing the hard work of establishing a federal regulatory standard for AI with Congress, the White House has invented authorities and delegated non-existent powers to the agencies and executives most anxious to do the President’s bidding. Meanwhile, Congress is trying again to slip soundly rejected AI regulation moratoriums into must-pass legislation in the dark of night.

“We can agree with the President’s desire for ‘one Federal Standard’ for regulation of AI, but only Congress can actually enact one. And they should – a framework for AI regulation is critical to ensuring consumer trust and driving innovation. Where Congress has failed to act, states have stepped up. The President has no authority or power to overrule them by decree.”

The post Public Knowledge Rejects Illegal and Illogical Executive Order Targeting State AI Laws appeared first on Public Knowledge.

The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:

“We are disappointed by today’s ruling rejecting the Federal Trade Commission’s challenge to Meta’s acquisitions of Instagram and WhatsApp. For years, Public Knowledge has warned that Meta’s ‘buy-or-bury’ strategy undermines competition and deprives users of real alternatives to Facebook.

“Social networks depend on powerful ‘network effects’ – people gravitate to the services their friends and communities already use. That makes it extraordinarily difficult for new entrants to gain traction, even when they offer better features like more privacy. When a dominant platform like Meta buys up rising social networks that may be able to challenge its market position, it closes off one of the few realistic pathways for meaningful competition.

“The court’s opinion reflects a view of the market that is at odds with how digital-platform power operates today. Meta systematically acquired emerging competitors precisely because direct, head-to-head competition threatened its dominance. Meta’s consolidation strategy deprived consumers of innovative services and prevented the development of a truly competitive social-networking ecosystem.

“Without meaningful competition, dominant digital platforms will continue to exercise outsized power over speech, commerce, and user choice. We urge policymakers to strengthen antitrust enforcement and adopt pro-competitive policies, including interoperability, to ensure users have real choice.”

The post Public Knowledge Responds to FTC v. Meta Ruling Further Undermining Competition in Big Tech appeared first on Public Knowledge.