Commerce, Judiciary Staffers Top List of Potential Phillips Successors

Phillips, who was chief counsel to Sen. John Cornyn, R-Texas, for seven years before joining the FTC, announced plans to resign last week (see 2208090061). Staffers for Senate Commerce Committee ranking member Roger Wicker, R-Miss.; Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah; and Sen. Josh Hawley, R-Mo., are said to be in consideration for the Republican seat on the commission. A former chief of staff to then-FTC Commissioner Maureen Ohlhausen is also in the mix. The office of Senate Minority Leader Mitch McConnell, R-Ky., didn’t comment.

Olivia Trusty, a tech-focused staffer for Wicker since 2017, is seen as a strong candidate, as is Crystal Tully, another longtime Wicker staffer, who joined the Commerce Committee in 2015. Tully was a law clerk in the FCC’s Media Bureau and clerked for then-FTC Commissioner Ohlhausen. Other candidates include Lee’s Deputy Chief Counsel-Antitrust and Competition Policy Mark Meador, who joined the Judiciary Committee in 2020 and previously worked for the committee in 2015. Meador’s background includes experience as an attorney in the FTC Competition Bureau and as a trial attorney in DOJ’s Antitrust Division.

Hawley’s Chief Counsel Josh Divine, who’s work with Hawley dates back to his days as Missouri attorney general, is another potential candidate. Divine was a law clerk in 2020 for Supreme Court Justice Clarence Thomas, who along with Hawley has been outspoken about Section 230. Senate Judiciary Committee Senior Counsel Rachel Bissex is in the discussion. She worked for DOJ between 2017 and 2021, most recently as deputy chief of staff to the attorney general until January 2021. Her background includes an eight-month stint in 2012 as a Facebook extern. American Bar Association Committee Officer Svetlana Gans, who worked for the FTC for eight years, including as chief of staff to Ohlhausen, is being considered. Her background includes roles at the Federal Communications Bar Association and NCTA.

Phillips announced resignation plans three days before the FTC opened public comment on a potential privacy rulemaking that he said oversteps the bounds of agency authority (see 2208110068). Former agency officials, who didn’t participate in interviews on Phillips’ potential successor, told us FTC Chair Lina Khan faces major hurdles in issuing an enforceable privacy rule that will withstand legal challenges.

Khan led a series of procedural votes meant to streamline the agency’s rulemaking procedures soon after she took office. Those partisan votes will make the rulemaking process “more controversial” and give additional ground for any legal challenges likely to follow a privacy rule, said former FTC Executive Director Eileen Harrington, who spent nearly 30 years at the agency before leaving in 2012, and has been critical of Khan’s tenure (see 2205190058). A rulemaking will take years, and it’s possible another administration will finish the process, she added. Harrington said she disagrees with Republican commissioners that the FTC lacks authority to issue a rule, and she sympathizes with the agency attempting to address an important need by passing federal privacy rules. But Khan’s departures from “well-established norms make everything that she is trying to do less likely to actually happen. She’s made some really big mistakes as the chair.”

The agency’s advanced notice of proposed rulemaking (ANPR) addresses a broad set of issues Democrats are interested in, but it doesn’t set the agency up for a strategic rulemaking proposal, said BakerHostetler’s Daniel Kaufman, the acting director-FTC Consumer Protection Bureau under President Donald Trump. “If the goal is to get a rule that is enforceable and that will be upheld by the court, this isn’t the way to kick it off,” he said: Given the FTC’s stringent rulemaking requirements, it has a “very challenging” test to prove the rule applies to conduct that's unfair or deceptive. For example, it will be very difficult to show that targeted advertising based on consumer data is an unfair practice, he said.

The ANPR is a “sprawling” document that will need to be narrowed in scope in order to produce a workable and effective rule, said former FTC General Counsel Stephen Calkins, now a Wayne State University law professor, who worked in the Clinton administration. Calkins said it’s possible Khan could finish the rulemaking during her tenure, citing the streamlined procedures: This administration “is highly motivated to get this done. The juggernaut of actions they took in those public meetings was breathtaking -- how much they did and how quickly.”