Thune 'Hopeful' White House Will Name Democrat to 5th FTC Seat Soon
Senate Commerce Committee Chairman John Thune, R-S.D., said Wednesday he's optimistic President Donald Trump soon will name a nominee for a vacant Democratic seat at the FTC. The committee cleared Trump's four other commission nominees Wednesday on a unanimous voice vote, including antitrust lawyer Joseph Simons, whom Trump plans to designate chairman. The other nominees are former Consumer Financial Protection Bureau Assistant Director Rohit Chopra; Noah Phillips, aide to Senate Minority Whip John Cornyn, R-Texas; and Delta Air Lines' Christine Wilson (see 1801250055 and 1801250066). An additional pick has been seen as potentially shortening the timeline for a Senate floor vote on the other four (see 1802060039).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Congressional aides and industry lobbyists told us they expect Trump will nominate Rebecca Slaughter, chief counsel to Senate Minority Leader Chuck Schumer, D-N.Y., for the vacant Democratic slot on Schumer's recommendation. If confirmed, the existing four nominees would leave the commission with a 3-1 Republican majority, with Chopra the Democrat. Simons would replace current Democratic Commissioner Terrell McSweeny, whose term expired but who can stay under current appointment rules. Thune said he couldn't confirm the nominee will be Slaughter. The White House and Schumer's office didn't comment.
“We are still awaiting the nomination” of a fifth commissioner, “but I am hopeful it will be coming soon and am committed to considering the nominee expeditiously,” Thune said during the executive session. The White House indicated an announcement on the Democratic nominee “will be soon,” an aide said. The four nominees are now “ready to go” for a full Senate confirmation vote, “so it's just a function now of scheduling on the floor,” Thune told reporters. “That's going to be largely what the Democrats will allow to go forward.” Senate Republicans would “love to move them to the floor” but “the Democrats have made it very hard to get even the most routine and non-controversial nominees through,” Thune said.
Senate Commerce ranking member Bill Nelson, D-Fla., supported the four nominees' advancement but also criticized the administration for having “again chosen to give a Democratic nominee [Chopra] the shortest term possible, while giving Republican nominees longer terms.” Chopra's term is to expire in September 2019. Simons' term would last into September 2024, and Phillips' tenure would end in September 2023. Trump nominated Wilson to two consecutive terms that would extend to 2025.
A majority Republican FTC likely will “give a good amount of attention to" questions “about how these big social media platforms and tech companies” fit into the agency's mission, Thune told reporters. The agency should look at those issues “with a good competitive open free-market approach in mind, but also with an eye toward ensuring there's good competition” in the tech sector, Thune said. The FTC's future role in policing net neutrality and other tech issues dominated the nominees' February confirmation hearing (see 1802140047). The FTC should more generally adhere to its mission of “preventing unfair and deceptive practices in the marketplace,” Thune said: The agency should “want to make sure that there's a competitive environment and that there's no tipping of the scales, so to speak, in favor of large companies.”
Simons said in his response to senators' post-hearing questions he has “every intention of maintaining” his reputation as a “vigorous enforcer” of “the FTC’s competition and consumer protection missions.” Simons said he would “work diligently with the outstanding staff at the FTC to make sure the Commission continues to aggressively protect consumers from deceptive or unfair acts or practices, including with respect to privacy and data security.” Simons said in response to questions from Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., he would be willing to further examine providing more transparency on algorithms that use consumer data to deliver targeted online ads. Senate Commerce published the nominees' written responses Wednesday.
Phillips told Wicker he believes online ad algorithms “can benefit both consumers and advertisers, but consumers are rightly interested in the means by which they are reached.” The increasing use of algorithms “in determining pricing and other questions is a good example of a trend that, I believe, the FTC needs to monitor closely,” Phillips said in response to senators' post-hearing questions. Wilson told Wicker she would work with commission staff to “carefully evaluate the issues presented by this type of algorithm that fall within the jurisdiction and authority of the FTC and how best to address them.”
Many consumers “may be unaware that a wide variety of data is collected on them and combined for the purposes of marketing and advertising,” Chopra told Wicker. “As a general matter, transparency contributes to a properly-functioning marketplace.” The issue “requires careful attention, given its impact on consumer protection, privacy, and competition,” Chopra said. “Some companies that rely on algorithms and machine-learning do engage in third-party audits to determine whether they are in compliance with law and regulation.”