Last week. FTC Commissioner Christine Wilson delivered a speech with a title that made clear she intended to speak her mind: The Neo-Brandeisian Revolution: Unforced Errors and the Dimunition of the FTC.
Predicting that the new FTC Leadership will fall far short of achieving its objectives — most of which she opposes — Commissioner Wilson promised that “their failure won’t keep me up at night.” She then went on to identify four key mistakes, but not before lamenting the halcyon days of a Commission characterized by comity between the architects of modern competition and consumer protection policy. The FTC’s Mount Rushmore of cooperation and non-partisanship: Steiger, Pitofsky, Muris, Leibowitz, Ramirez.
The four mistakes identified by Commission Wilson:
- Embracing the Mistakes of the Past (We’ve been down the over-regulation and rulemaking road before; it does not end well);
- Going it Alone (We should pay attention to what Congress and the Judiciary have to say about the boundaries of our statutory authority);
- Shunning the Agency’s Actual Experts (The FTC Staff are NOT the enemy, they are the answer); and
- Fostering Confusion and Maximizing Discretion (In place of transparency, predictability, and accountability — chaos).
There is not enough room in this blogpost to dig deeper into Commissioner Wilson’s principal points, each forcefully made, some even supported by biblical citation, as well as nearly 100 footnotes laden with pointed parentheticals. Followers of the Agency should do that for themselves and form their own opinion about where this is all headed.
But if she is right, we will look back on this activist Commission like we do the era of the National Nanny, when the Commission was besieged and defunded for trying to micromanage marketing and restructure markets. It survived only after promising a return to sensible policies, which of course was followed by a form of Pax Romana — 50 years of relative peace and stability on Pennsylvania Avenue.
And if she is right, most of what is now being done can be undone: the vertical merger guidelines and the Section 5 policy statement can be reinstated; the great fog of uncertainty that has passed over HSR enforcement can be lifted; the preapproval clauses in consents can be removed or waived; and rules can be repealed.
But what can’t be undone is the damage among the ranks of the FTC’s professional staff. According to Commissioner Wilson, they have been muzzled, sidelined, insulted, scapegoated, dismissed, and ignored, in part, because of what certain critics perceive as “cultural capture”, where staff’s interests “are more closely aligned with the entities that they regulate, rather than the interests of the public.”
Well, we are all entitled to our perspectives, and as a Firm whose lawyers have sat across from FTC staff at negotiating and courtroom tables on many of the most significant cases over the past five decades, we are more than qualified to say that the notion that the FTC staff is “captured” is entirely uninformed. And the many hotly-contested consent and litigated orders are all the proof that is needed.
By highlighting FTC staff flight, Commissioner Wilson identified the one harm that could be irreparable. Critics might point to departing staff’s move to private practice as evidence of this “cultural capture,” but that focuses on the effect as opposed to the cause. And, as we’ve stated here previously, it is incredibly unfair to condemn former colleagues who have served in government and remain within the only legal discipline they’ve known, albeit on the opposite side of the “v.” But if that is what this FTC intends to do, more will leave, and it will take future FTC Leadership years to repair the harm.