Senate finally poised to restore FTC to full strength
Not only will their confirmation put three more sets of steady hands at the wheel of the nation’s chief consumer protection and antitrust agency, but it also will finally restore the FTC to full strength, freeing it up to once again take on the kinds of hard cases that tend to split public opinion.
The FTC, which has jurisdiction over nearly every sector of the U.S. economy (with only a few limited exceptions), has had only two commissioners for most of 2017, ever since outgoing Chairwoman Edith Ramirez resigned in early February. To their credit, Acting Chairwoman Maureen Ohlhausen and Commissioner Terrell McSweeny have done an admirable job finding common ground and working together where possible, including by blocking an allegedly anticompetitive merger in daily fantasy sports, imposing structural-separation requirements on a key merger in the semiconductor industry, settling a privacy suit against a major ridesharing service and, most recently, launching an investigation into the Equifax breach.
However, with a partisan deadlock in place, the commission has only been able to act when it had unanimous consent. This has left it unable to tackle difficult questions that truly push the bounds of precedent and drive the evolution of legal doctrine forward. By all accounts, Simons, Chopra and Phillips are all FTC scholars who should be ready to hit the ground running on day one. Each of them also has relevant personal experience that should hold them in good stead at the commission.
Joseph Simons, long-rumored to be Trump’s pick for FTC chairman, comes most recently from the antitrust group at law firm Paul Weiss. He also spent time as director of the FTC’s Competition Bureau in the early 2000s, working deeply on both mergers and other enforcement actions. Given the uptick in merger activity this year, Simons’ experience in this area will surely come in handy at the FTC, which has a key role to play, along with the U.S. Justice Department, in reviewing proposed mergers and acquisitions to prevent potential harms to competition or consumers.
Rohit Chopra, the pick to fill the open Democratic slot, also has significant prior experience in the federal government. He served as assistant director of the Consumer Financial Protection Bureau and in 2011 was named by former Treasury Secretary Timothy Geithner to be the U.S. Treasury Department’s first student loan ombudsman. Chopra is considered a darling of key Democrats like Senate Minority Leader Chuck Schumer, D-N.Y., and Sen. Elizabeth Warren, D-Mass., for his efforts to combat student loan debt and other financial burdens affecting young people. While his stance on for-profit colleges may rankle some Senate Republicans, there is no reason to think he won’t be confirmed. After all, disagreements over policy aren’t a valid reason to deny confirmation of a qualified nominee (although members of both parties tend to forget that from time to time).
Finally, Noah Phillips was nominated to fill the final Republican vacancy at the FTC, and he also brings a decorated and interesting background to the table. Phillips previously spent time in civil litigation for both Steptoe & Johnson and Cravath, Swaine & Moore, but most recently has been serving as chief counsel for Senate Majority Whip John Cornyn, R-Texas, with the Senate Judiciary Committee. From his post on the Judiciary Committee, Phillips has oversight of the U.S. legal system as well as intellectual property, which should come in handy as the FTC continues to engage in more patent work, such as its review of patent assertion entities and its ongoing case alleging anticompetitive abuse of patents underlying equipment used in smartphones.
With a full complement of qualified commissioners, the FTC can once again function as an agency with the skills and capacity to tackle the key competition and consumer-protection issues. The Senate shouldn’t delay to confirm all three nominees.
Image by Kevin Grant
