Commissioner Wilson to Resign from FTC, Leaving Three Democratic Commissioners

• Republican FTC Commissioner Christine S. Wilson announced that she will soon resign her position, leaving the Commission with only three commissioners, all of whom are Democrats.
• Commissioner Wilson’s resignation is unlikely to significantly alter the FTC’s policy direction or enforcement decisions. However, without any Republican commissioners there likely will be a lack of dissenting statements explaining alternative points of view.

On February 14, Commissioner Christine S. Wilson, the only Republican currently serving on the Federal Trade Commission (FTC), announced that she is resigning due to what she called an “abuse of regulatory authority” under Democratic Chair Lina M. Khan.

In her statement of resignation published in The Wall Street Journal, Commissioner Wilson criticized Chair Khan for what she described as “her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes.” Commissioner Wilson reiterated her disagreement with the FTC’s actions to change its unfair methods of competition enforcement policy and to issue the recently proposed rule to ban non-competes, and stated that “FTC leadership has abused the merger review process to impose a tax on all mergers, not only those that hinder competition.” She further noted a marked decline in the percentage of FTC employees who expressed favorable views of FTC leadership in the annual Federal Employee Viewpoint Survey, and criticized the actions of other commissioners surrounding a motion to recuse Chair Khan in an enforcement action.

Commissioner Wilson’s resignation will leave the FTC with three Democratic commissioners and no Republican commissioners. Noah Joshua Phillips, a Republican, resigned from the FTC in October 2022 and President Biden has yet to nominate his successor, though he recently renominated Democratic Commissioner Rebecca Kelly Slaughter to another seven-year term. The party affiliation of the commissioners is customarily oriented three-to-two in favor of the President’s party and the President chooses the chair.

The FTC has been operating with a Democratic majority since the confirmation of Chair Khan in June 2021, with the exception of the time between October 2021, when former Commissioner Rohit Chopra left the FTC for the Consumer Financial Protection Bureau, and May 2022, when current Commissioner Alvaro Bedoya was confirmed. The current Democratic commissioners have voted in lockstep with each other. For these reasons, Commissioner Wilson’s departure will be unlikely to change the general policy direction of the FTC or outcomes in individual matters. Because an action by the FTC requires only the vote of a majority of incumbent commissioners, the FTC remains able to act when there are commissioner vacancies.

Commissioners Wilson and Phillips frequently dissented from FTC policy actions. And on several occasions they dissented in enforcement actions. For example, Commissioner Wilson dissented from the FTC’s issuance of a proposed rule to ban employer-worker non-competes, the issuance of a policy statement regarding the circumstances in which it might seek to take action against unfair methods of competition under Section 5 of the FTC Act, the issuance of a policy statement on the use of prior approval provisions in merger orders and the FTC’s recission of the 2020 Vertical Merger Guidelines, among other actions. Commissioner Wilson also dissented from the FTC’s recent acceptance of proposed consent orders against companies that have used employee non-competes.

The FTC is designed to be bi-partisan: the FTC Act provides that no more than three commissioners are to be members of the same political party. The absence of Republicans on the Commission will mean that there will likely be no dissents explaining alternative points of view regarding FTC actions, including the expected upcoming re-draft of the FTC-DOJ merger guidelines. And, to the extent that Commissioners Wilson and Phillips exerted a moderating influence on Commission actions, this will be absent.

                                                                                                                  *       *       *