Trump nomination maneuvering guarantees 2-1 Republican majority at FTC

20 October 2017 10:47pm
FTC Sign

19 October 2017. By Leah Nylen.

A surprising procedural move by the Trump White House has ensured that a Republican majority will soon control the Federal Trade Commission. In lieu of filling the vacant spot left by former FTC Chairwoman Edith Ramirez, Joseph Simons, President Donald Trump's pick for FTC chairman, will replace Commissioner Terrell McSweeny, a Democrat whose term expired last month. That secures Simons a seven-year term through 2024 and a likely 2-1 majority once he joins the agency.

On Thursday, the White House said it would nominate Simons, a partner at Paul Weiss, to be FTC chairman, and Democrat Rohit Chopra to be a commissioner. The White House frequently nominates Democrats and Republican together in what's often referred to as a pair to help ease their confirmation in the Senate.

The individuals selected were no surprise: Democrats said months ago that they would push for Chopra and MLex reported in May that Simons was under consideration for the top spot (see here and here). What was unexpected was the seats the White House selected for the two candidates.

FTC commissioner terms last for seven years, always beginning and ending in September. Since the creation of the agency in 1915, the terms have been fixed to the seat, not the individual. Commissioners are nominated to fill a seat, regardless of how much time is remaining in a particular term. Under the law, however, a commissioner may remain in his or her seat until a replacement is confirmed.

Since 1995, the White House has used one of the seats for the chairman or chairwoman. That spot — which has been vacant since Edith Ramirez stepped down in March — has a term lasting until September 2022.

Instead of nominating Simons for that seat, however, the White House said he would take the one currently held by McSweeny, whose term ended in September. That would allow Simons to stay on through September 2024. It also means that McSweeny will be off the commission as soon as Simons is confirmed.

Chopra will fill out the term of Republican former Commissioner Joshua Wright, who left the agency in 2015, the White House said. That gives him a seat only through 2019.

By maneuvering the nominations in this way, the White House has ensured that the FTC will have a 2-1 Republican majority once Simons and Chopra are confirmed. Republican Maureen Ohlhausen, the FTC's current acting chairman, will return to being a commissioner once Simons is confirmed. Ohlhausen's term is set to expire in 2018.

The two remaining vacancies include the one left open by Ramirez, which lasts through 2022, and one vacated by Democrat Julie Brill, whose term extends through 2023.

A White House spokeswoman said Thursday that the president intends to nominate Noah Phillips, a Republican staffer for Senator John Cornyn, to fill one of the open FTC spots. She didn't indicate when that nomination might occur or which spot Phillips might fill.

If Phillips is nominated in the coming months, he could be packaged for a Senate vote along with Chopra and Simons — which would give the FTC a 3-1 majority. The White House also could hold Phillips' nomination until next year, at which point it could be packaged with a successor for Ohlhausen and a second Democrat or independent.

ABA 2019