Five is the magic number – whether it’s Fifth Harmony or the Jackson 5 or five FTC commissioners. In a surprising development, late on Thursday last week, the Senate confirmed two new Republican commissioners – Melissa Holyoak and Andrew Ferguson – and confirmed Commissioner Rebecca Slaughter to a second term. The vote was supposed to happen late in December, but many of us were quite surprised when that did not happen because of a blocking move by Senator Hawley.
It has been almost one year since Commissioner Wilson loudly exited the Commission, leaving the Commission with three Democratic commissioners and no Republicans. And perhaps unsurprisingly, since that time, we have not seen any dissenting opinions at all on the consumer protection side (or on the competition side). That will be changing really soon.
So why does this matter? Votes will be 3-2 on controversial matters, and three votes is three votes. And that is certainly true. At the outset, we can’t assume votes, and who will vote for what, of course. But there is quite a lot that a minority commissioner can accomplish behind the scenes and through dissenting statements and speeches.
There are, for example, many controversial rulemakings pending at the agency. Without these new voices, we were very likely heading toward all these rules being finalized with no dissenting statements despite voluminous public comments raising all sorts of concerns. Things are different now. The new commissioners will be able to internally push for moderation of the proposals, and when they are unsuccessful, they can and will issue dissents that will lay out clear frameworks for challenges to these rules. And let’s be clear – in many cases, a well-written dissenting statement from a sitting commissioner can provide a clear roadmap for legal challenges that will be more persuasive to many courts than industry advocacies and appeals. Those dissents are important.
But we will also see these new commissioners getting involved in settlements and litigation. And there have been questions raised in many areas about some of the tools that the FTC is using to get money in many of its settlements and some of the litigation theories. You can expect to see statements from the new commissioners questioning some of the theories being used and raising public concerns about some of the settlements that are premised on novel interpretations of the law. At a minimum, expect to see statements from them that at least shed light on some of the theories being used and that try to establish appropriate bounds, limits, and criteria.
These are different days at the Commission. And it is never clear how dynamics will play out at the Commission. But in general, there will be efforts to get the new commissioners to vote in support of at least some of the new proposals, and that will require some compromise. How much compromise – and on what issues – remains to be seen. But the threat of a strong dissenting statement is a real thing that can’t and shouldn’t be ignored.
I have always thought that the Commission performed at its best when it went through that necessary exercise of seeking consensus to get at a better result – one that works for consumers and that doesn’t overly burden business. I view that as part of the reason why there is a Commission – to address differing viewpoints to get to the optimal result.
Having a full Commission will not directionally change things dramatically – but I do think we may see some shifting toward positions in some areas that might have more general support. Some read about the announcement and think that their FTC issues will magically go away. And I can confidently tell you that is not the case. But there will likely be commissioners who are more receptive to some industry concerns, and that can make a difference in some situations.
Stay tuned – things are going to get interesting. We will be seeing a lot publicly from these new commissioners, but even more will be happening behind the scenes.
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