The Federal Trade Commission (FTC) has always had a reputation for bipartisanship among the commissioners and other leadership staff. As we have previously reported, there are currently four open positions on the Commission out of a total of five spots. Over the past year, there has been the question of whether the well-deserved reputation of working together across party lines would hold in this era of hyper-partisanship.
It might just be a holiday sugar rush, but on Valentine’s Day 2018, the Senate Committee on Commerce, Science, and Transportation held a nomination hearing for President Trump’s selections to serve as Federal Trade Commissioners.
One of the overarching themes of the hearing was that each of the nominees made a point to express their belief in the need to work together to get things done and protect consumers regardless of party. Frankly, it was a breath of fresh air that is needed and appreciated in the current political environment of dysfunction.
We would be lucky if other government agencies and representatives followed the lead exemplified during the hearing moving forward.
The Nominees & Their Priorities
Joseph Simons was the nominee to be the incoming Chairman of the Federal Trade Commission. Most recently he was the co-chairman of the antitrust group at Paul Weiss and a former FTC antitrust official in the George W. Bush Administration. He highlighted the following priorities for the Committee:
- Addressing concerns that the federal antitrust agencies have been too permissive in dealing with mergers and acquisitions.
- Addressing merger remedies (a recent study indicated high failure rates in some divestiture asset packages).
- Protecting consumers without unduly burdening them or interfering with the ability of firms, especially small firms and new entrants, to use data to enhance competition.
Noah Phillips was another nominee the Committee heard from for an open Commission slot. He has most recently served as the chief counsel for Senator John Cornyn (R-TX) and had previously worked at Steptoe & Johnson as well as Cravath, Swaine & Moore as a civil litigator. His priorities included:
- Protecting consumers by enforcing the antitrust and consumer protection laws written by Congress.
- Maintaining predictability and intellectual rigor in the interpretation and enforcement of those laws.
- Keeping abreast of developments in technology and business practices to protect consumers.
Rohit Chopra was nominated for the open Democratic Commission seat. He formerly served as the assistant director of the Consumer Financial Protection Bureau for President Obama. He is also noted for having close ties to Senator Elizabeth Warren (D-MA). Chopra focused on the following priorities for his Committee testimony:
- Confronting the rapid development and use of big data in almost every sector of the economy, and how it is reshaping the financial services and education industries in particular.
- Adjusting to macroeconomic shifts both in the U.S. and abroad, and making sure that the agency has a clear view into the broader economic environment.
- Being a good steward of taxpayer resources.
Christine S. Wilson was the final Republican nominee considered most recently served as senior vice president for legal, regulatory, and international affairs at Delta Air Lines Inc. Prior to this position, she was a partner at Kirkland & Ellis where she focused on competition and anti-trust law. The focus of her comments to the Committee were:
- Continuing to focus on the health care industry and concerns regarding cost as well as the misuse of sensitive data, and burgeoning occupational licensing requirements.
- Maintaining a global leadership role in advancing sensible antitrust and consumer protection policies.
- Staying abreast of advancements in technology because they present enforcement complexities such as the intersection of IP, antitrust, data security and privacy.
Additionally, press reports note that Senator Chuck Schumer has recommended his Chief Counsel Rebecca Slaughter (previously of Sidley Austin) for the 5th Democratic Commissioner spot once vacant.
The Hearing Highlights
One primary focus of lawmakers was the FTC’s ongoing investigation into the Equifax data breach that compromised the personal information of 143 million U.S. citizens. Through the ongoing dialogue, it was clear there was substantive support for data breach legislation and enforcement. Further, Simmons expressed concern that the FTC might not currently have the existing resources and authority to tackle the problem.
Lawmakers also pressured the nominees on the economic clout and market dominance of the internet companies. Nominees suggested that “no company is above the law” and that they would vigorously review the space for harm.
Prescription drug pricing and Net Neutrality were also highlighted by various participants. Of course all of the nominees expressed a strong desire to honor and fulfill the FTC’s mission of protecting the consumer.
To learn more, here is a link to the hearing’s landing page. There you will find the prepared statements of the Panellists and an archived webcast of the proceedings.
Please join us on behalf of ERA and the industry to wish each of the nominees the best and great success through the remainder of the process and soon as FTC Commissioners.
About the Author
Bill McClellan serves as ERA's Vice President of Government Affairs. Prior to joining the association, Bill worked as a lobbyist at the Georgia Automobile Dealers Association, covering the state legislature and Georgia's congressional delegation. Before working for the GADA, Bill managed political campaigns at both the congressional and state constitutional levels.