Democrats finally regain their FTC majority
It took eight months of hearings, nominations, health-related delays and a decisive vote by the vice president, but the Senate confirmed Alvaro Bedoya as the fifth commissioner of the Federal Trade Commission. More importantly — and almost certainly why his confirmation has been such a lengthy and contentious process — he is his third Democrat, and will soon be a deciding vote himself.
In a statementBedoya said he was excited to work with the other four commissioners and “really excited to work alongside the Federal Trade Commission officials.”
The FTC was blocked by two Republican commissioners (Noah Phillips and Christine Wilson) and two Democrats (Chairwoman Lina Khan and Rebecca Kelly Slaughter) for most of Khan’s tenure. Anything Khan wanted to do that required the committee’s vote would either have to get the support of at least one Republican or it wouldn’t happen at all. This will no longer be the case.
“Alvaro’s knowledge, experience and energy will be a great asset to the FTC as we continue our essential work,” Khan said in a press release. “I’m excited to begin working with him, along with our other commissioners, once his appointment is finalized by President Biden.”
Bedoya comes to the FTC from the Center on Privacy and Technology at Georgetown Law, of which he was the founding director. His appointment, made last September, was well received by privacy advocates. Bedoya said in his confirmation hearing last year that it intended to focus on privacy issues, including data and facial recognition. In the absence of federal consumer privacy law, the FTC’s powers are limited, but it can still — and has – sued the companies over privacy concerns.
During his hearing, Senate Republicans claimed they were not challenging Bedoya’s stance on privacy, but his public tweets. Bedoya tweeted that President Trump is a white supremacist and that Immigration and Customs Enforcement (ICE) is a “national oversight agency.” During the hearing, Senator Ted Cruz accused Bedoya of being a “left-wing activist, provocateur, bomber and extremist.” Sen. Roger Wicker said he believed Bedoya’s “strident opinions” meant he would not be able to work with Republican commissioners. Bedoya said the tweets were posted when he was a private citizen and were in response to government actions he deemed harmful. On Tuesday, the day before Bedoya was confirmed, Senate Minority Leader Mitch McConnell called Bedoya a “foolish choice” and an “awful appointment.”
It’s more likely that the Republicans’ problems were not with Bedoya or his tweets, but with Bedoya giving the FTC the Democratic majority it has lacked since Rohit Chopra left in October. Republicans are not happy with Khan’s work at the FTC, to say the least, viewing her as a divisive radical progressive who intends to reshape the agency’s antitrust approach and give it more authority than they think. The business world is not a fan of Khan either. The lobby group US Chamber of Commerce made no secrets about his problems with her, and recently sent a letter to the Senses. Chuck Schumer and Mitch McConnell urging them to postpone the Bedoya vote because confirming it would give Khan a majority.
“Alongside President Lina Khan and Commissioner Rebecca Kelly Slaughter, we can finally envision an effective FTC that plays a vital role in leveling the playing field and restoring our nation’s economy,” Stacy Mitchell , co-director of the Institute for Local Self-Reliance, said in a statement.
Bedoya’s confirmation has been decried by pro-Big Tech lobby groups, such as NetChoice, which mentioned“Chairman Khan has the votes she needs to achieve her radical progressive goals at the expense of politicizing the FTC,” which “would hurt all Americans by ruining healthy, competitive markets.”
The anti-Bedoya side carried on for some time; Bedoya’s confirmation has been significantly delayed. It took so long for the Senate to confirm Bedoya that he had to be reappointed earlier this year. When it became clear that no Republicans would vote for Bedoya, Schumer had to wait until all of the Democratic senators and Vice Presidents Harris were present to vote for him. Previous attempts were thwarted when Senator Ben Ray Luján suffered a stroke and then again when several Democratic senators and the vice president tested positive for Covid-19. On May 11, Bedoya was confirmed 51-50.
That’s not to say the FTC hasn’t done anything in the last seven months of stalemate. The agency unanimously agreed to block a massive meltdown between semiconductor chip companies Nvidia and ARM as well as a merger between Lockheed Martin and Aerojet. And Khan was able to move forward with things that don’t need an agency vote and likely wouldn’t have gotten votes from Republican commissioners had they done so.
Khan can not to get votes for a study on pharmacy benefit managers, something she said”very disappointed” sound. And the FTC did not act on the Amazon MGM merger before its closing, that many expected him to given Khan’s history of criticizing Amazon for alleged anti-competitive actions.
Bedoya will enter an agency that seems to have internal problems. There are intra-commissioner squabbles, on the one hand: Wilson has made Nope secret of his distaste for Khan’s approach to leadership and antitrust enforcement. But one recent survey also showed that agency employees’ trust and respect for senior leaders plummeted during Khan’s short tenure. The FTC told Recode that the investigation was conducted during a time of significant change at the FTC, and that Khan has “tremendous respect” for FTC staff and is “committed to ensuring that the FTC continues to be a great place to work.”
When it comes to the Republican commissioners, however, there’s reason to believe they’ll get along better with Bedoya than they apparently do with Khan. Phillips bliss Bedoya on confirmation, referring to him as “my friend”, while Wilson tweeted that she “looks[ed] look forward to collaborating with him, especially on the privacy of children.
With Bedoya on board, Khan can run the FTC like she did last summer, when the FTC had three Democratic commissioners — which is surely how she’s envisioned since becoming its chairman. Meanwhile, the agency successfully filed its lawsuit against Meta, with Wilson and Phillips vote against this. Khan no longer has to settle for what the Republican commissioners will accept. This Amazon-MGM merger may be over, but it can still be challenged.
And maybe Bedoya will work, true to its word, to improve consumer data privacy. Khan has already reported that the FTC will address data privacy – which has been the subject of much discussion recent attention following the news that Roe vs. Wade can be reversed — both as a matter of consumer protection and as a matter of competition. This should make Big Tech companies, whose power comes largely from the data they collect, nervous.
Update, May 11, 5 p.m. ET: This story has been updated to include statements from Bedoya, FTC commissioners and advocacy groups.