Biden's progressive FTC agenda faces pause as Democratic member leaves

Story on the Washington Examiner website here: Biden's progressive FTC agenda faces pause as Democratic member leaves

Federal Trade Commission Chairwoman Lina Khan will have to pause elements of her ambitious, progressive agenda as a Democratic commissioner is leaving next week, meaning Democrats will no longer be in the majority.

The Senate Thursday confirmed FTC Commissioner Rohit Chopra to lead the Consumer Financial Protection Bureau, meaning the agency will once again be split along party lines with two Republican and two Democratic commissioners until Chopra is replaced by Biden nominee Alvaro Bedoya.

For a few months, the new dynamic will likely result in fewer controversial policy changes at the agency, more regular enforcement of the law, and a focus on investigations, cases, and actions that both parties agree on.

“There are many non-controversial areas that have always gotten things done on a bipartisan basis, like consumer protection cases, fraud, privacy, and antitrust cases,” Republican Commissioner Noah Phillips told the Washington Examiner.

Phillips added that the agency had historically operated largely on a bipartisan basis, including under the leadership of Commissioner Rebecca Kelly Slaughter, who was acting chair of the trade commission for a few months before Khan took over.

He also said that he and Republican Commissioner Christine Wilson are not “monolithically aligned” and “could be split” on some issues and votes within the agency, possibly giving the Democrats an opportunity to team up with Republicans on certain issues.

Conservative antitrust lawyers say that Khan and the Democrats at the agency, while being in the majority for the past few months, have pursued an aggressive and partisan agenda thus far, pointing to their expansion of regulatory powers, tightening of the merger approval process, and revoking of certain Trump administration guidelines.

“The controversial remaking of FTC rules with new policy statements and other initiatives passed along partisan lines will no longer happen for a little while without the Democratic majority,” said Neil Chilson, acting chief technologist at the trade commission for a year during the Trump administration.

Chilson said, though, that since Democrats removed the requirement to get the approval of a majority vote of the commission to start an investigation or issue a subpoena, Khan will still be able to pursue many parts of her agenda without any official agency votes.

“Khan can pursue her agenda even without a majority for many months. That’s part of the reason she gave every commissioner the subpoena power for investigations, as stop gap in case she wasn’t in the majority,” said Chilson, who is now a senior research fellow at the Charles Koch Institute, a libertarian research organization.

Those who are in favor of Khan’s antitrust agenda said they are optimistic that Chopra’s replacement, Bedoya, will be confirmed soon by the Senate and that much of the Democratic agenda will proceed even without them being in the majority in the coming weeks or months.

“It’s true that the FTC won’t hold a lot of votes during this time and it’s important to move quickly to get Bedoya confirmed, so we can start having important votes again,” said Charlotte Slaiman, head of competition policy at open internet advocacy group Public Knowledge.

“But there is plenty of important work that’s part of our agenda that will continue in regards to privacy, antitrust, consumer protection and fraud with investigations and casework,” she added.