GOP Senate dysfunction aids progressives controlling the Federal Trade Commission

Republican senators gave Sen. Elizabeth Warren (D-Mass.) and progressive idealogues running the Federal Trade Commission (FTC) an early Christmas present by failing to confirm well-qualified nominees to be commissioners.

This unforced error shows that Republicans can be as dysfunctional in the Senate as in the House. The root cause of the FTC debacle is an escalating feud between Sens. Josh Hawley (R-Mo.) and Senate Minority Leader Mitch McConnell (R-Ky.), as The Hill reported.

The FTC is an important federal agency charged with protecting consumers and scrutinizing mergers. Prior to 2021, the FTC was renowned for working in a nonpartisan, highly competent manner to find strong, common ground for its decisions.

The Biden administration has made the FTC the epicenter for some of its most extreme economic policies. Executive orders and White House directives have led the FTC to try to redefine what constitutes business competition, the relationship between workers and companies, and to outsource to European Union bureaucrats unprecedented sway over U.S. tech companies.

Driving these efforts is the FTC’s chair, Lina Khan, who is close with Warren. The two have extensively collaborated since 2016. When President Biden announced he was naming Khan as the FTC chair Warren called it “tremendous news” in an effusive press statement.

What the FTC, by law and common sense, needs most now is balance and depth. The FTC is supposed to have five commissioners, with no more than three being from the same political party, who are appointed for seven-year terms. Today, it has just three commissioners, all Democrats, and has not had a Republican commissioner since March 31, 2023. 

On Feb. 14, 2023, Christine Wilson, the last Republican FTC commissioner, announced she was resigning. In a blistering Wall Street Journal op-ed, she cited Chair Khan’s “disregard for the rule of law and process and the way senior FTC officials enable her.”

In a March 2 letter to President Biden, Commissioner Wilson said that under Chair Khan’s leadership, “knowledgeable career staff have been scorned and sidelined.” She continued, “Rampant dissatisfaction among staff has led to the departures of many experienced personnel, causing a notable ‘brain drain.’”

In the House, Judiciary Committee Chairman Jim Jordan (R-Ohio) and Oversight and Accountability Chairman James Comer (R-Ky.) are leading investigations into Chair Khan’s collaboration with European regulators against U.S. companies, potential ethics violations and other matters. Sen. Ted Cruz (R-Texas) has been strident in raising these issues as well.

President Biden on July 3 nominated two Republican commissioners, Melissa Holyoak and Andrew Ferguson to the FTC. Democrat Commissioner Rebecca Slaughter was nominated to another term.

Commissioner Wilson spoke highly of Commissioner Slaughter in her letter to the president, saying Slaughter, “operated in keeping with the best traditions of the agency — transparency, robust lines of communication with all Commissioners, constructive debate on policy issues.”

On Oct. 18, following a September hearing, the Senate Commerce Committee unanimously voted to confirm all three nominees.

It looked like the Senate was poised to vote on the nominees shortly before Christmas. However, Hawley used a practice known as a hold to table the vote saying he wanted to speak with FTC commissioner nominee Andrew Ferguson, who previously worked for Senate Minority Leader McConnell.

Hawley has long had an interest in the FTC and offered a 2020 proposal to reform the agency. Yet, he had nearly six months to speak with Ferguson but did not request this until Dec. 20.

To be clear, Democrats will still control the FTC with the confirmations. The absence of dissenting opinions on FTC decisions, however, and legal rationale that accompanies those dissents, will make it harder for courts to hold the FTC accountable when it makes bad decisions. Meanwhile, Chair Khan has not testified to the Senate since 2021, giving her further unchecked power.

Government works best when agencies are fully staffed. And for Republicans, it is better to have minority representation at the FTC than no representation at all. Most importantly, the American people get a better functioning agency.

Paul Steidler is a Senior Fellow with the Lexington Institute, a public policy think tank based in Arlington, Va.