On the campaign trail, President-elect Trump said little about his plans for the Federal Trade Commission (“FTC” or “Commission”), but he has a unique opportunity to remake the FTC early in his term, because of an unusual number of Commissioner vacancies, one expired term, and his presidential prerogative to designate one Commissioner as the Chair.

The Commission is composed of five Commissioners, no more than three of whom may be from the same political party.  The Commissioners are nominated by the President and confirmed by the Senate, and serve nonconsecutive terms of seven years.  Currently, there are only three Commissioners — two Democrats and a Republican  — so the new Administration can nominate two Commissioners to fill existing vacancies.  The President may also remove a Commissioner for “inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. § 41.

The new President can designate one of the existing Commissioners, or a new Commissioner, as the Chair of the Commission. 15 U.S.C. § 41.  The Chair is the executive and administrative head of the Commission, presiding over meetings and hearings before the Commission and participating with other Commissioners in all Commission decisions.  The Chair is able to control the agenda of the Commission by appointing senior staff and by setting agency priorities.

The current Chair of the Commission is Edith Ramirez, a Democrat, whose term expired September 25, 2015, and who may serve until a new Commissioner is confirmed by the Senate.  Because the existing Chair is serving under an expired term, the new Administration has the opportunity to nominate a third Commissioner.

Commissioner Maureen K. Ohlhausen is a Republican whose term expires September 25, 2018. In one likely scenario, Commissioner Ohlhausen would be designated as the new Chair by the new President.  However, if the new Administration is not ready to move quickly on appointments to the FTC, Commissioner Ohlhausen could be given an Acting Chair title, which would signal that the new President ultimately intends to appoint another individual for that role.

Commissioner Terrell McSweeney is a Democrat whose term expires September 25, 2017.  Upon the expiration of Commissioner McSweeney’s term, the new Administration would be able to nominate a fourth Commissioner during the second half of 2017.

The new Administration has not given any indication about who may be nominated to fill the existing vacancies.  The FTC, although a priority for most administrations, is not typically the highest priority, and, in past administrations, the President has not designated a Chair until several months into his presidency.  (In fact, Janet Steiger, a Republican who was designated as Chair of the FTC by President Bush, remained in that position for more than two years after the Clinton Administration took office.)

 

Tags: Agency leadership, Election, Federal Trade Commission (FTC), Regulatory policy
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Photo of John Graubert John Graubert

John Graubert has more than 30 years of experience in a wide range of complex antitrust and consumer law matters. John came to the firm after serving for ten years as Principal Deputy General Counsel of the Federal Trade Commission. John is co-chair…

John Graubert has more than 30 years of experience in a wide range of complex antitrust and consumer law matters. John came to the firm after serving for ten years as Principal Deputy General Counsel of the Federal Trade Commission. John is co-chair of the firm’s Advertising and Consumer Protection practice group, an Adjunct Professor at the Georgetown University Law Center, and a vice-chair of the Federal Civil Enforcement Committee of the ABA Antitrust Section.

From 1998-2008, John served as Principal Deputy General Counsel (including several stints as Acting General Counsel) at the Federal Trade Commission. In that position John managed all litigation, legal counsel, policy studies, and administrative functions within the Office of General Counsel. He also advised the Commission and agency staff on antitrust and consumer protection matters and administrative law. He was involved in dozens of litigated matters for the Commission, including FTC v. Swedish Match, et al. (D.D.C. 2000) and FTC v. Schering-Plough, et al. (11th Cir. 2005), and received the A. Leon Higginbotham Award and the Award for Distinguished Service.

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