Senators propose ban on FTC ‘zombie votes’

By | December 2, 2021

Six GOP senators are introducing legislation that would bar the Federal Trade Commission from counting the votes of departed commissioners — a practice that has drawn new Republican criticism to agency Chair Lina Khan.

The bill, spearheaded by Kansas Sen. Jerry Moran, would be retroactive to the beginning of 2021, invalidating dozens of votes left behind by Democrat Rohit Chopra when he departed the agency in October to take the helm of the Consumer Financial Protection Bureau. POLITICO reported on the issue a month later, noting that the agency’s rules could allow Chopra to serve as the deciding vote through at least December.

“Your last day in office is the last day your vote should count — whether you serve on the school board or the FTC,” Moran said in a statement. “It’s absurd that votes cast by commissioners on outstanding issues can be counted up to 60 days past their departure. This needs to stop to protect the integrity of the commission and because it’s just plain common sense.”

The Republicans’ legislation would require the FTC to issue a rule that bars a commissioner’s votes from having an effect after he or she leaves the agency.

Utah Sen. Mike Lee, the top Republican on Senate Judiciary’s antitrust subcommittee, and John Thune, the No. 2 GOP senator, are co-sponsors along with Missouri’s Roy Blunt, Wyoming’s Cynthia Lummis and Wisconsin’s Ron Johnson.

The backstory: The FTC is split 2-2 between Republicans and Democrats since Chopra’s departure, a deadlock that has hampered some of Khan’s priorities and could impede the agency’s decisions on matters such as its antitrust probe of Amazon.

On his final full day as an FTC commissioner, Chopra proposed and cast votes on more than 20 policy statements, cases and potential rule-makings. Both Chopra and the FTC have defended the legality of his votes, saying the FTC’s policy since 1984 is to count the votes of departing commissioners unless they are superseded by a vote of their successor.

So far, the agency has used only one of Chopra’s votes, issuing a policy statement on Oct. 25 restricting some mergers by a 3-2 vote. The FTC’s two GOP commissioners, Noah Phillips and Christine Wilson, castigated the FTC for using what they termed Chopra’s “zombie vote.”

Bedoya delay: Several GOP senators raised concerns about the practice, asking Alvaro Bedoya — President Joe Biden’s pick to replace Chopra — about his views on the use of his predecessor’s votes. Bedoya, a Georgetown Law School privacy expert, said he needs to research the issue further to develop a view.

In the meantime, Republicans are slow-walking Bedoya’s nomination.

On Wednesday, all of the Senate Commerce Committee’s GOP members voted against his confirmation, deadlocking the panel. The 14-14 tie vote means Democrats will need to take extra Senate floor time and conduct a series of three votes in order to confirm Bedoya to the FTC — time the chamber isn’t likely to have this month since its agenda is already packed with must-pass items.