Ex-FTC Economist Says Agency Vacancies Could Impede Work; Others More Sanguine
A former FTC economist said the three vacancies that have existed on the five-member commission for most of the four months since President Donald Trump took office eventually could impede investigations and merger reviews, and shortchange the White House's agenda. Two other FTC experts said last week a full slate would provide more diverse viewpoints, but they didn't think the normal course of agency business would be hurt since the commission is largely a consensus-based organization.
William Shughart, who worked at the FTC in the early 1980s, told us his "worry" is the two commissioners -- acting Chairman Maureen Ohlhausen, a Republican, and Commissioner Terrell McSweeny, a Democrat -- may be deadlocked in merger reviews and in continuing or new investigations or cases that would then favor the defendant in a proceeding or possibly stall agency business. Having five commissioners would bring more diversity of viewpoints that would presumably advance the FTC's work, said Shughart, currently professor at Utah State University School of Business.
"I don’t remember at any time in the whole history of the commission that vacancies have dragged on for four months ... after the inauguration," said Shughart, who wrote a May 11 column for RealClearMarkets about the problems with the FTC having only two commissioners. In that piece, he cited the FTC during the final days of the Obama administration bringing a complaint against Qualcomm for allegedly maintaining a monopoly in baseband processors used in cellphones and other products. The complaint was approved 2-1 along party lines, with Ohlhausen dissenting (see 1701170065).
Several former FTC staffers previously said they didn't see a problem with two commissioners since they try to reach agreement on most matters (see 1701130030, 1702220046 and 1701200002). Dan Caprio, who worked at the FTC from 1998 to 2004 as chief of staff to Commissioner Orson Swindle and is a former Department of Commerce chief privacy officer, said a full commission does bring more perspective to the work. But he also said personnel decisions come in waves and the Trump administration is working its way to the FTC. "It seems to me that it’s ripe timing-wise for the White House to nominate a slate of candidates and get a full commission," he said.
"In the abstract, a variety of commissioners brings value and different perspectives to the FTC," emailed University of California-Berkeley School of Law adjunct law professor Chris Hoofnagle, an expert on the FTC. But he said most commission actions have wide support among both liberal and conservative appointees. He said "no sane person would want Trump to focus on the FTC right now. There are cabinet agencies with hardly any leadership, a threat from both North Korea and Russia, and a special prosecutor. The FTC is very low on the priority list."
Senate Minority Leader Chuck Schumer, D-N.Y., more than a week ago recommended Trump name former Consumer Financial Protection Bureau Assistant Director Rohit Chopra to fill the FTC commissioner seat formerly held by former Chairwoman Edith Ramirez (see 1705090048). Chopra recently declined to comment to us about his potential nomination. News reports also have said Schumer wants his former chief of staff, David Hantman, to fill the seat, but that's unconfirmed. Schumer's office didn't comment. Former Department of Agriculture Deputy Undersecretary Lillian Salerno also said she would be interested in being a commissioner but didn't know if she's being considered (see 1703140031). The White House didn't comment.
One thing Trump can do now is make Ohlhausen permanent chair, which creates certainty and helps the agency further advance the White House agenda for economic liberty and light-touch regulation (see 1704250029 and 1702170026), said Caprio, now chairman of cybersecurity consulting firm the Providence Group. "She's head and shoulders above the competition," he said. Republican Utah Attorney General Sean Reyes' name has been floated for months as a potential nominee for chairman, but Caprio said it's unclear if he would be nominated.