FTC Gridlock Unlikely Whether Trump, Clinton Takes Office

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By Daniel R. Stoller

Nov. 3 — The outcome of the presidential race is unlikely to cause any short-term gridlock at the Federal Trade Commission.

Regardless of whether Hillary Clinton (D) or Donald J. Trump (R) wins the White House, companies under the FTC’s jurisdiction should expect to see continued data security, privacy and competition enforcement and other activity while decisions are made about how to bring the commission up to its full five-member strength and name a chairman.

The outcome of the presidential race may most immediately affect the leadership of the commission and that leader will ultimately shape policy on data privacy and security, consumer protection and antitrust issues. The president doesn't need Senate confirmation to name the FTC chairman. Whether Chairwoman Edith Ramirez (D)—who is serving as a holdover appointment—is lured back to the private sector is unclear. Ramirez was an intellectual property partner at Quinn Emanuel Urquhart & Sullivan LLP in Los Angeles before joining the FTC in 2010.

Stephanie A. Martz, public policy principal at Monument Policy Group in Washington, told Bloomberg BNA that commission appointees usually “are willing to defer to the preferences of the incoming president.” How long Chairwoman Ramirez stays at the FTC “will depend partly not just on who wins the presidency,” but on the various “Senate confirmation scenarios.”

However, the FTC may be a “place where parties can find some agreement on acceptable candidates.” Even with disagreements on the “exact role government can play,” Democrats and Republicans are “both interested in competition and privacy issues,” she said.

Replacing Ramirez

If Clinton becomes president, it is unclear whether she would renominate Ramirez or if Ramirez would accept that nomination. Ramirez may legally stay on as a holdover appointment until such time as her replacement is confirmed. If Trump wins, he could immediately move to name existing Commissioner Maureen K. Ohlhausen (R) as chairman. Whether Ramirez will be asked to leave her post or will step down voluntarily remains to be seen.

D. Reed Freeman, partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, told Bloomberg BNA that Chairwoman Ramirez “hasn't given any indication of her intentions to stay on the FTC,” but she has been on the commission for awhile and may seek to return to California.

If Ramirez does leave the FTC without a replacement don't expect the commission to miss a step, Freeman, who also is co-chairman of Wilmer Hale's cybersecurity, privacy and communications practice, said. A two member FTC “would still get a lot of consumer protection work done” because the commissioners usually come to an unanimous agreement, he said.

Full Strength Commission

There shouldn't be any policy shake-ups even if a potential replacement for Chairwoman Ramirez hits a roadblock in the U.S. Senate Committee on the Judiciary.

In addition to Ramirez and Ohlhausen, Terrell McSweeny (D) rounds out the sitting commissioners. No more than three members of the commission may be from the same political party and commissioners must be confirmed by the Senate to their seven-year terms. McSweeny is confirmed as a commissioner through Sept. 25, 2017 and Ohlhausen's term expires Sept. 25, 2018.

A FTC “with two commissioners—which is quite bare bones—will continue along the same path as before and not end up in gridlock except on the margins because of new theories or cases on the edge,” Freeman said.

Martz said that when Ramirez eventually leaves the FTC, she will be seen as a “strong chairwoman.” Ramirez has “the profile that the chairwoman of the FTC needs to have,” she said.

Ramirez was able to continue the legacy of Chairman Jon Leibowitz and has been responsive to consumer issues and “newer parts of American industry,” Martz said. The chairwoman was able to “continue the profile of the FTC as an interested and active voice for consumers,” Martz said.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bna.com

To contact the editors responsible for this story: Donald G. Aplin at daplin@bna.com ; Jimmy H. Koo at jkoo@bna.com

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