Political polarization is putting the Federal Trade Commission in a pickle.
The FTC leads data privacy and antitrust enforcement in the US. But, this week, the agency’s only remaining Republican commissioner announced her resignation following major disagreements on Big Tech regulation.
Commissioner Christine Wilson wrote a scathing exit letter that was published in The Wall Street Journal earlier this week, citing FTC Chair Lina Khan’s “disregard for the rule of law and due process” as her reason for leaving.
Wilson wrote that Khan’s blanket opposition to corporate mergers means she can’t be a partial judge on competition issues. She also pointed out that the FTC’s use of subjective labels such as “abusive” or “exploitative” to define certain business practices blurs the lines between lawful and unlawful conduct, which “due process demands be clearly drawn.”
Wilson is not the only Republican to push back against the FTC’s use of strong language. (Did someone say “commercial surveillance”?)
Former Republican commissioner Noah Phillips also disagreed with Khan’s efforts to expand the FTC’s enforcement beyond strictly illegal activity. He departed the agency in October.
Does Wilson’s mic drop departure cast doubt onto the regulatory legitimacy of the FTC? If so, the agency could take even longer with its push to develop new privacy protections.
We asked the experts: What does Commissioner Wilson’s resignation mean for how the FTC functions moving forward?
- Mary Engle, EVP of policy, BBB National Programs
- Allison Lefrak, SVP of public policy, ads privacy and COPPA compliance, Pixalate
- Gary Kibel, partner, Davis+Gilbert
- Christopher Leach, partner, Mayer Brown
Mary Engle, EVP of policy, BBB National Programs
The FTC will be able to move forward on its law enforcement and policy initiatives because the agency will still have three Democratic commissioners. But the very public way that Commissioner Wilson announced her resignation may undermine the perceived legitimacy of the commission.
This undercut could embolden companies to litigate rather than settle with the FTC, or even to challenge the agency’s proposed rules – all of which will make it more difficult for the commission to achieve its enforcement goals.
Allison Lefrak, SVP of public policy, ads privacy and COPPA compliance, Pixalate
The immediate ramifications are twofold: The FTC may now be able to move faster on enforcement actions and rulemaking, but their actions will no longer have a stamp of bipartisanship, which has long been a hallmark of the FTC.
There’s also the potential that we will see more businesses follow in the footsteps of Kochava and refuse to settle with the FTC.
Gary Kibel, partner, Davis + Gilbert
While the makeup of the commission will change, the overall initiatives of the FTC are unlikely to change under the current leadership.
But it is possible that Commissioner Wilson’s noisy resignation, coupled with the change in control of the House of Representatives, could make the chances of comprehensive privacy legislation harder to achieve since most bills involve giving the FTC more power. The House also could try and refine or even narrow the FTC’s authority in certain matters.
Christopher Leach, partner, Mayer Brown
Although Wilson’s departure likely will not affect the outcomes of many FTC votes, her exit means the loss of a dissenting voice guiding courts and the loss of challengers to some of the most vulnerable aspects of current agency action.
Answers have been lightly edited and condensed.
