Following House passage of 13(b) legislation this summer, Congressional Democrats seem to have lost some of the urgency with which they were moving to strengthen the FTC’s penalty authorities in the wake of the Supreme Court’s AMG decision. This is partly due to their preoccupation with a months’-long effort to move President Biden’s “Build Back Better” agenda and partly due to the need for some degree of bipartisan consensus in the Senate. With the caveat that Congress can – and often does – surprise us, the prospects for a 13(b) fix any time soon remain murky at best.
Beyond Democrats’ pending budget reconciliation legislation, Congress’s focus through the end of the year is on deadlines for several “must-pass” bills (e.g., government funding, the debt ceiling, and the annual defense authorization bill). While attaching policy riders to these year-end legislative initiatives is standard practice, it is unclear how hard Democrats may be pushing to include a 13(b) fix in the face of myriad legislative distractions, nor is it clear that Senate Republicans are ready to play ball.
Yes, there is always next year, but 2022 is projecting to be an even uglier legislative environment (if it could be imagined). And while this could work either way for 13(b) – Democrats may be more desperate to make a deal (if they think they won’t be in power come 2023) and Republicans may be less willing to compromise (for the same reason) – it is unlikely that any legislative fix will include the exact language preferred by the FTC. The end result could be that nothing happens here, with Republicans content to sit tight, and Democrats unwilling to beat their chests about 13(b) on the campaign trail.
Since most of our readers don’t regularly swim in these waters, let’s recap –
Continue Reading The Section 13(b) Fix: Stand-Still on the Hill?