In his 1981 inaugural address President Reagan warned of those who “believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.”
Today, the Biden administration has started to put in place such elitist rule and Exhibit A is the agenda and leadership of the Federal Trade Commission (FTC).
For more than 100 years, the FTC had adjudicated antitrust matters and ensured consumer welfare with relatively little controversy. It did this in a bipartisan, consensus-building manner.
Today, the FTC has a leading role as the Biden administration pulls out all the stops to micro-manage the U.S. economy. For starters, the FTC is placing restrictions on business combinations, employer-employee agreements, and helping literally re-define what business competition should look like.
Central to this strategy is keeping one party, exclusively-Democrat rule at the FTC for as long as possible. Left, unchecked, this could go well into 2026 or later, regardless of who wins the 2024 presidential election.
The FTC is led by up to five Commissioners, who are nominated by the president and confirmed by the U.S. Senate for seven-year terms. By law no more than three Commissioners can be from the same political party.
Today, there are just three FTC Commissioners, all Democrats, and the Biden administration is so far under little pressure to change this.
In fact, the current Commissioners can stay in office until the Senate confirms their replacements. Under the Federal Trade Commission Act, “a Commissioner shall continue to serve until his successor shall have been appointed.” Furthermore, once confirmed, a President can only remove an FTC Commissioner for “inefficiency, neglect of duty, or malfeasance in order.”
It has been nearly three months since a Republican served on the FTC. In a February 14 Wall Street Journal Op-Ed, Commissioner Christine Wilson announced she was resigning. She said FTC Chair Lina Khan had “disregard for the rule of law and due process,” and that “senior FTC officials enable her.” Wilson concluded: “I refuse to give their endeavor any further hint of legitimacy by remaining.”
Wilson’s resignation became effective on March 31 and followed the resignation of the other Republican Commissioner, Noah Joshua Phillips, on October 14, 2022.
On February 13, the White House announced that President Biden had renominated Democrat FTC Commissioner Rebecca Slaughter, who previously worked for Senate Majority Leader Chuck Schumer, to another term.
Senate confirmations are a long and arduous process, even in the best of situations, i.e., when there are popular, non-controversial nominees. Both the White House and U.S. Senate staff will carefully review a nominee’s background to avoid potential problems. One bad tweet or Facebook post from a decade ago, or a poor attempt at humor during a speech to professional colleagues is all it takes to derail a nominee.
The Senate’s busy legislative calendar and its practice of allowing any Senator to put a hold on a nominee to prevent a floor vote can also slow things considerably. In addition, the process for new nominees goes back to the starting line at the start of a new session of each Congress, with the next being in January 2025.
Through its previous appointment of current FTC Chair Lina Khan, and its recent actions and inactions, the Biden administration has ensured that the FTC will be led in a highly partisan fashion until at least some time in the year 2025 regardless of who is president.
This underscores the need for Congressional Republicans to aggressive put checks on the FTC, particularly on its annual appropriation and via the use of creative, targeted appropriations riders.
Congressional Republicans should also demand that two Republican Commissioners be nominated as soon as possible. In Washington and U.S. Senate parlance, such a move would be highly unusual.
Yet today, it is also highly reasonable and necessary. The blatant power-grab actions being taken by the FTC, and the law’s requirement that only three Commissioners be from the same political party, show that the proper checks and balances require two independent thinking new Commissioners.
Otherwise, the FTC will continue to operate in an ideological, dysfunctional manner, failing to do its duty to protect consumers and address antitrust developments that would truly harm consumers. When the FTC gets back to the practice of having a bipartisan group of commissioners focused on consensus building, and stops trying to re-engineer the U.S. economy, it will return to its core mission and serve the American people.
