ADventures in Law

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Earlier this week, Commissioner Christine Wilson of the Federal Trade Commission (FTC or Commission) announced – in her own words – her “noisy exit” from the Commission in a <a href="https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d?mod=Searchresults_pos3&amp;page=1">statement</a> published in The Wall Street Journal (linked but behind a paywall). She will be leaving the agency at an undetermined date and has not indicated that she will remain until her successor is appointed.

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Commissioners are appointed for seven-year terms, and they do come and go on a regular basis. But this departure is significant for a bunch of reasons; once she leaves, the commissioners will all be Democrats. As someone who spent 23 years at the agency, I can’t remember any time when the commissioners were all from the same political party, and that is fundamentally contrary to the purpose of having a Commission. Indeed, the agency’s statute provides that no more than three members of the Commission can be from the same political party.

Perhaps I am a bit of an idealist, but I have always thought that the goal of this structure was to make sure that the Commission engaged in bipartisan analysis and thinking – and that through such collaboration, better results were achieved. And prior to this current Commission, that has been the practice at the agency: discuss, collaborate, compromise and obtain better results for consumers. There has been far less of that for the past two years, and there will of course be even less once Commissioner Wilson departs.

And to be clear, Commissioner Wilson has been a very vocal minority commissioner. For those who might not be aware, Wilson has a long and storied history at the FTC and has always been a fierce advocate for the agency, for its staff and for consumers. In addition to her current tenure as a commissioner, she was the chief of staff for former Chairman Tim Muris and even did a stint at the agency when she was in law school.

But we have seen her in action most recently as a commissioner, particularly for the past two years, with many speeches and published statements in which she has raised concerns and questions about policy and enforcement measures being taken by current agency leadership. On the “commercial surveillance” (privacy) rulemaking, her <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/Commissioner%20Wilson%20Dissent%20ANPRM%20FINAL%2008112022.pdf">dissenting statement</a> raised some real concerns about the rulemaking’s potential impact on federal privacy legislation efforts as well as concerns about regulatory overreach. She called out the fact that “[m]any practices discussed in this ANPRM are presented as clearly deceptive or unfair despite the fact that they stretch far beyond practices with which we are familiar, given our extensive law enforcement experience.”&nbsp;In a recent concurring statement in the <a href="https://www.bakerdatacounsel.com/ftc/latest-ftc-health-privacy-case-sheds-light-agency-health-privacy-approaches/">GoodRx case</a>, she emphasized that she thought the agency’s $1.5 million settlement was too low. She also called out some of her colleagues who had supported this case but had dissented on other high-profile FTC privacy cases that involved much greater penalties and were brought by the prior administration. Wilson also <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-Open-Commission-Meeting-Transcript-January-19-2023.pdf">expressed her concern</a> – which I share – that at the moment, the agency is “under investing in the cases that we bring in our fraud program.” She emphasized that the FTC “has a continuing and important role in protecting consumers who have been harmed by bad actors and I support the continued investment of resources in this area.”

Whether you agree with her views or not, there is great value in having such points and concerns raised by a sitting commissioner. Non-commissioners like me can raise all the issues we want in blogs like this, but that will never be the equivalent of having those ideas raised by a sitting commissioner.

On a purely practical level – for a company that is dealing with the Commission, there is no real difference between a 3-0 vote and a 3-1 vote. The case gets voted out in either scenario, and thus far, we have not seen a single vote under Chair Lina Khan where a Democrat colleague dissented. But there is a great deal that happens behind the scenes that can nevertheless have a real impact on the company that is in the hot seat and on the agency as a whole. A successful minority commissioner – even without having a determinative vote – can still influence cases and policy matters. She can work with her colleagues to try to get language modified in draft complaints. She can question why the agency is alleging an unfairness violation when deception allows the agency to get all the identical relief and get the complaint modified. She can get additional questions and concepts raised in Federal Register Notices and quite a lot more. The public does not have real visibility into what a minority commissioner accomplishes behind the scenes, but they are active and working through the Commission to have an impact. Even though the agency has become far more partisan of late, I am certain that Commissioner Wilson has nevertheless had an impact on many cases and other matters. Even the threat of a strong dissenting statement can lead to changes by the other commissioners in order to get that statement modified.

Now, to be clear, a replacement will be named eventually, but confirmations do take time. There will be an interest in getting a replacement appointed quickly, but who and when is all pure speculation. And just a few days ago, the White House announced that Commissioner Rebecca Kelly Slaughter was being <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/13/president-biden-announces-key-nominees-37/">renominated</a> for an additional term. It is certainly possibly that the White House will soon announce a name for one or two of the vacant seats at the agency.

Finally, on a more personal level, I would be remiss if I did not point out a few additional things. Commissioner Wilson has been out there – raising policy concerns and highlighting the current poor staff morale at the agency. Her views are not necessarily popular, but that has not dissuaded her from defending agency staff and questioning current agency practices. Her determination and dedication have always been beyond impressive and commendable, and her departure will mark an unfortunate day for the agency and for consumers.

Why the Resignation of Commissioner Wilson from the FTC Is a Big Deal