Slaughter conducts subtle campaign for top FTC job

29 March 2021 00:00 by Claude Marx

FTC Building

No acting Federal Trade Commission chair has ever gotten the job permanently. Rebecca Kelly Slaughter is reshaping the political and policy aspects of her role to be the exception to the rule.

Using her platform, Slaughter has outlined how the agency can beef up its rulemaking chops and take a hardline approach to certain merger reviews while urging Congress to strengthen competition laws.

To improve the FTC’s rulemaking capabilities, on March 25 Slaughter announced a new group within the agency’s Office of General Counsel. The agency plans to refine existing rules and to write new ones to prohibit unfair or deceptive practices and unfair competition methods.

“I believe we can and must use our rulemaking authority to deliver effective deterrence for the novel harms of the digital economy and persistent old scams alike. Our rulemaking power under Section 18 has gotten a bad reputation for being too hard to use, but longstanding FTC rules, such as the Funeral Rule and the Eyeglass Rule, have provided significant benefits to consumers,” she said in a statement.

“It is also time for the commission to activate its unfair methods of competition rulemaking authority in our increasingly concentrated economy,” she said. “I am excited for this new rulemaking group to explore all the possibilities.”

The agency needs to bolster its strength in case it ends up on the wrong side of a Supreme Court ruling that could threaten its ability to seek consumer redress under Section 13(b) of the FTC Act.

Within minutes of Slaughter’s announcement, the chairs of the Senate subcommittees that oversee the agency’s antitrust and consumer protection activities praised it.

“Over the years, the FTC’s reluctance to use its rulemaking authority represents a missed opportunity. That is why the announcement that the FTC is forming a new group dedicated to competition and consumer protection rulemaking is a welcome development,” Senator Amy Klobuchar said in a statement. The Minnesota Democrat chairs the Senate Judiciary antitrust panel.

“The FTC’s announcement is a welcome sign that the commission is ready to flex its muscle for consumers and competition,” said Richard Blumenthal in a statement. The Connecticut Democrat chairs the Senate Commerce panel on consumer protection.

Slaughter’s other large initiative has been establishing a working group to examine pharmaceutical mergers and see if there are ways to strengthen the review process and prevent harmful deals from going through. It’s a project that includes the Department of Justice, state attorneys general and competition authorities in Canada, EU and the UK.

Slaughter told reporters the goal is to take “concrete and actionable” steps and see if lessons learned can be applied to how the agency reviews deals in other industries.

Enforcers “need to make sure that [they’re] not just thinking about the sort of traditional questions of market share,” she said. “Instead, we’re really looking at these questions about innovation and what’s going to get new treatments and new drugs to market.”

At a March 16 press conference, where she unveiled the plan, Slaughter didn’t discuss how her acting status would impact the initiative or others. But in response to a question, she said her mission is to “do this job as well as I can, as long as I have it, and taking a critical look at areas like pharma is part of doing that.”

Slaughter, a former senior aide to Senate Majority Leader Charles Schumer, has been on the FTC since 2018. She was named to the commission by President Donald Trump, at Schumer’s recommendation. President Joe Biden named her acting chair in January after Joe Simons resigned.

Sources who requested anonymity say Slaughter and District of Columbia Attorney General Karl Racine are the top contenders to run the FTC.

At a March 24 session during the American Bar Association’s Antitrust Virtual Spring Meeting, Racine cited his strong enforcement record on antitrust and consumer protection. His office joined the DOJ’s antitrust lawsuit against Google and the FTC’s litigation against Facebook.

On consumer protection, he praised some companies for coming to his office before engaging in certain practices. It’s “a chance for companies to develop the kind of trust that we are trying to encourage.”

He didn't mention the FTC chairmanship during the session.

Slaughter took another opportunity to highlight her qualifications when she supported toughening the antitrust laws at a March 18 congressional hearing.

“Clearer bright-line rules could minimize the need to engage in tortured and expensive efforts to both measure and balance harm and efficiencies, particularly in cases where the facts support a clear theory of harm. Shifting the burden of proof so that the parties that wish to merge must prove that a proposed transaction would not materially harm competition for those transactions would substantially help to deter unlawful mergers,” she told lawmakers.

Slaughter also wants the FTC to withdraw the vertical merger guidelines that it and the DOJ approved last year.

When the commission approved the guidelines 3-2 along party lines, she and fellow Democratic member Rohit Chopra voted no.

In responding to a question from Representative Ken Buck of Colorado, the subcommittee’s top Republican, Slaughter said she’s concerned the guidelines were “overly crediting of claimed pro-competitive benefits of vertical mergers and undercounted a number of harms that I think are important.”

The Biden administration hasn’t given a timetable for naming a permanent FTC chair. But it moved to fill another vacancy on March 22 when it nominated Columbia University law professor Lina Khan to the commission.

There are four commissioners on the FTC, but Chopra is awaiting confirmation to be director of the Consumer Financial Protection Bureau and his departure would create another spot. If Slaughter isn’t named chair, she could remain on the commission. Her term expires on Sept. 25, 2022.

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