FTC’s Ohlhausen Faces Tricky Odds As Possible Agency Chief

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By Alexei Alexis

Nov. 28 — Maureen Ohlhausen, the Federal Trade Commission’s sole Republican member, has an easy path to become its acting chairwoman when President-elect Donald Trump takes office, but her long-term prospects are less clear, agency watchers told Bloomberg BNA.

An Ohlhausen chairmanship might be viewed as a safe option. She’s a well-respected commissioner known for taking a thoughtful, balanced approach to the antitrust and consumer protection matters that come before the FTC.

However, her moderate views and establishment credentials could also work against her.

“If Trump is looking for a radical FTC chair, he might want someone else,” Seth Bloom, an antitrust attorney at Bloom Strategic Counsel LLC in Washington and former Democratic staffer for the Senate Judiciary Antitrust Subcommittee, told Bloomberg BNA.

Trump was quick last month to slam AT&T Inc.’s proposed $85.4 billion tie-up with Time Warner Inc., saying the deal should be blocked. He hasn’t commented since the election on whether he intends to follow through with his tough talk on the deal.

Trump’s transition team is being advised by George Mason University law professor and former FTC Commissioner Joshua Wright, a skeptic of aggressive enforcement, a source familiar with the matter told Bloomberg BNA. Wright earned a reputation as the FTC’s most conservative commissioner during his brief tenure there under President Barack Obama. He often clashed with the commission’s Democrats and didn’t always see eye to eye with Ohlhausen either.

Trump’s transition team didn’t respond to a request for comment. Ohlhausen declined to be interviewed.

FTC Vacancies

Two commission spots are now vacant, and the agency’s current chairwoman, Edith Ramirez, may depart once Trump takes office. That would bring the five-seat commission down to just two sitting members: Ohlhausen and Terrell McSweeny, a Democrat.

The logical next step would be for Ohlhausen to take over, although for how long is unclear, said Stephen Calkins, an antitrust law professor at Wayne State University in Detroit and a former FTC general counsel.

“As to whether she would be appointed to serve as acting chair or chair, I have no insight,” he said. Either way, the appointment could become effective immediately, without the need for Senate confirmation.

The FTC can function with two commissioners, although that has never happened before, agency spokesman Justin Cole told Bloomberg BNA.

New presidents often look outside the FTC when choosing an agency chairman, but that’s not always the case. Shortly after taking office in early 2009, Obama selected then-FTC Commissioner Jon Leibowitz to become chairman.

It’s possible that Trump will favor an outsider, particularly given that he ran as an anti-establishment candidate, according to Carl Hittinger, an antitrust lawyer at Baker & Hostetler LLP in Philadelphia.

“I don’t think Ohlhausen necessarily has an edge just because she’s already on the commission,” Hittinger said. “Why wouldn’t Trump want his own person to be chair?”

Pluses for Ohlhausen

Other sources said, however, that Ohlhausen’s background and expertise should give her a big advantage.

“She’s a tremendous veteran of the commission who knows the ins and outs of how the agency works, so I think she would be a strong appointment,” said David Balto, an antitrust attorney in Washington who was FTC policy director during the Clinton administration. “I don’t agree with her on tons of things, but she’s certainly someone who backs up her positions with well-considered thoughts.”

Choosing Ohlhausen would allow Trump to get a strong commission chief in place quickly, so that he could focus on other priorities, said Charles Kennedy, principal of The Kennedy Privacy Law Firm in Washington.

“I would see him probably just wanting to have somebody who’s solid and knowledgeable to carry on over at the FTC,” Kennedy told Bloomberg BNA. “I think that would work in favor of an Ohlhausen chairmanship—not so much because of policy, but because of the different things he’s going to want to do in terms of shaking up Washington.”

An Obama appointee, Ohlhausen has served on the commission since April 2012. Her term expires in September 2018.

As acting chair, her job would be to “keep the trains running” until a long-term agency head is named by Trump and confirmed by the Senate, according to Calkins. It would be surprising for an acting chair to make major changes, such as long-term staff appointments at the senior level, he said.

Agency Veteran

Before joining the commission, Ohlhausen was a partner at Wilkinson Barker Knauer LLP, where she focused on FTC issues, including privacy and cybersecurity. She also served as director of the FTC’s Office of Policy Planning from 2004 to 2008 and an attorney advisor for former FTC Commissioner Orson Swindle from 1998 to 2001. She started at the FTC General Counsel’s Office in 1997.

“I have never had a job at this agency that was particularly ‘siloed,’ ” Ohlhausen said in a 2012 interview with the American Bar Association’s Antitrust Source. “That was something that helped me to prepare to be a Commissioner because Commissioners, of course, are responsible for overseeing all activities at the agency on both the competition and consumer protection sides.”

During her time on the commission, Ohlhausen has generally worked to reach consensus with colleagues, while also showing a willingness to be independent, according to observers.

“She’s an energetic, mainstream conservative, not hesitant to set out her own views but always doing so respectfully,” said Calkins, who appointed Ohlhausen to her first job at the FTC.

Ohlhausen has taken contrary positions on a number of key issues. She objected to the agency’s landmark 2015 statement on what constitutes unfair methods of competition under the FTC Act, saying that it was too vague and ducked important questions. In addition, she has been less willing to find deception violations or to challenge close-call mergers, Calkins said.

In the area of consumer-data protection, she objected to the majority’s recommendation for a general privacy bill.

“I think she sincerely believes that when you try to overregulate, it’s bad for business,” said Kennedy, who worked with Ohlhausen during her time at Wilkinson Barker Knauer. “If she were made the chair, I think that would be a great vote of confidence in the approach that she’s been articulating in the last few years. I think she would feel like it was a mandate to go ahead with what she has called a humble regulatory approach.”

With assistance from Liz Crampton

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Tiffany Friesen Milone at tmilone@bna.com

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