Federal Trade Commission building
Jeff Greenberg | Universal Images Group | Getty Images
The Federal Trade Commission finally has the power to move forward with its progressive enforcement and policy agenda after the Senate confirmed President Joe Biden’s nominee to the fifth commissioner seat Wednesday.
The Senate voted to confirm Alvaro Bedoya 51-50, with Vice President Kamala Harris casting the tie-breaking vote.
The vote breaks a deadlock between the two Democratic and two Republican commissioners on the FTC, which is chaired by progressive antitrust academic Lina Khan, paving the way to move forward with its most ambitious agenda items.
That could include an antitrust lawsuit against Amazon, which the agency has reportedly investigated. It could also include rulemaking on digital privacy and a narrower view of which mergers to approve, as the agency reviews major deals including Microsoft’s planned purchase of game maker Activision Blizzard.
The vote comes months after Biden first nominated Bedoya in September. The founding director of the Center on Privacy and Technology at Georgetown Law faced dogged criticism from Republicans on the Senate Commerce Committee over his past tweets, including a retweet comparing the 2016 Republican National Convention to a white supremacist rally, and a tweet where he called Immigration and Customs Enforcement an “out-of-control domestic surveillance agency that peers into all our lives.”
Alvaro Bedoya
Source: U.S. Senate Committee on Commerce, Science, and Transportation
As a result, the committee deadlocked twice on the question of whether to recommend his nomination to the full Senate.
At the beginning of Khan’s term as chair, the commission had a full slate of five, including three Democrats — the max allowed from any one party at one time. But since former FTC Commissioner Rohit Chopra was confirmed to a new role leading the Consumer Financial Protection Bureau, the agency has consisted of just two commissioners from each party.
That deadlock meant the agency could only move forward with enforcement measures, policy stances or rule-makings that at least one Republican commissioner would agree to. And the minority commissioners have vocally objected to Khan’s approach to running the agency.
Some members of the business community are wary of a Khan-led FTC at full force.
“Rather than a rubber stamp, a fifth commissioner at the Federal Trade Commission must serve as a check on Chair Khan’s radical agenda that aims to ‘shape the distribution of power and opportunity across our economy,'” the U.S. Chamber of Commerce’s Chief Policy Officer Neil Bradley said in a statement on Tuesday. “Until more is learned about Alvaro Bedoya’s views on transparency, due process, statutory authority, and basic management of the Commission, it would be irresponsible to confirm him as Khan’s tie-breaking vote.”
In her academic career, Khan famously argued that the U.S. must use a more expansive framework to consider antitrust challenges against tech companies such as Amazon, rather than the decades-old consumer welfare standard, which places an emphasis on monetary costs to consumers.
In a memo last fall, Khan laid out her vision for the agency, including breaking down silos between its Bureau of Competition and Bureau of Consumer Protection and acting fast to mitigate harms, especially in “next-generation technologies, innovations, and nascent industries across sectors.”
Since then, the agency has taken some steps that have jarred the business community, such as suspending early terminations, a policy that allows some low-risk deals to close before the waiting period expires, and issuing letters warning parties that the agency is not finished looking at their deal, so they may merge at their own risk.
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