Some would say that Commissioner Christine Wilson foreshadowed her resignation in her recent GoodRx concurrence. Indeed, Commissioner Wilson has been vocal in recent months about some of her concerns with how the FTC is doing business. Much of her criticism came after the Supreme Court’s AMG Capital Management, LLC v. FTC decision, which stripped the FTC of certain powers. Of course Privacy World has kept you in the know with how the FTC reacted to AMG HERE, HERE, and HERE. Much of the FTC’s reactions center on increasing rulemaking efforts, especially as the rulemaking impacts privacy and advertising programs, while also escalating its enforcement actions. Recently, the U.S. Chamber sent an open letter to Congress requesting more congressional oversight of the FTC in light of Commissioner Wilson’s resignation. Here are three points from the U.S. Chamber’s open letter that reflect what Commissioner Wilson’s resignation may mean for Congress and the FTC over the coming year:
- Who Makes the Rules? Without a federal privacy law and a clear delegation of rulemaking authority to FTC, the FTC will likely continue to engage in more limited rulemaking under its Magnuson Moss authority. In the meantime, states continue to legislate and rule make in the areas of consumer privacy and digital advertising. As companies continue to heavily invest in privacy and advertising compliance programs, the uncertainty about what the actual law will become will continue to create uncertainty and challenges for companies.
- Got Quorum? The U.S. Congress, when establishing the FTC, clearly established that the Commission should be comprised of no more than three commissioners of the same political party for a full commission of five commissioners. However, Congress never defined a quorum for the agency. In 2018, the FTC revised its quorum rules from a traditional quorum definition to a minimal number of commissioners necessary. Under the FTC’s quorum definition, it appears the three remaining commissioners—all Democratic-affiliated—can move forward with making decisions absent a full commission of five commissioners. In other words, a Republican perspective will be absent in future investigations and decisions until new Commissioners are appointed.
- Democratic President Charged with Republican Nominations. Commissioner Wilson, the only Republican currently on the FTC, has been critical of the agency and called recent actions an abuse of power. Commissioner Wilson’s impending resignation coupled with Noah Phillips’ (Republican) departure in October 2022 will require President Joe Biden to nominate two Republicans to fill the positions. President Biden will have the difficult task of nominating a new commissioner who shares the principles of Senate Republicans on the Commerce Committee, while also searching for a replacement who may advance certain Biden Administration priorities. While the nominations may not be announced for a few months, the nomination hearings will present a high-profile opportunity for senators to consider the FTC’s agenda and role.
This may be only the tip of the iceberg of what Commissioner Wilson’s resignation means for FTC and Congress in the months (and year) to come. Privacy World’s bi-partisan policy team is ready to help you navigate the changing seas ahead. For more information contact the authors.