Our texts exploded on the afternoon of March 18 when we learned that the president had fired FTC Commissioners Rebecca Slaughter and Alvaro Bedoya. Perhaps the writing was on the wall, given the firings of what were deemed nonremovable appointees elsewhere and DOJ’s view on the validity of Humphrey’s Executor, but the news that it had actually happened was shocking to say the least. Both commissioners appear likely to challenge their firings in federal court, but for now, we have what is supposed to be a five-person Commission with only two commissioners, both Republicans.
Faithful readers may recall that back in February 2023, former FTC Commissioner Christine Wilson “noisily” departed the Commission, leaving it with three Democrats and no Republicans. We wrote about that two years ago and noted how unusual it would be to have a Commission with no minority views as well as the important value that exists in having minority viewpoints on the Commission. Fast forward two years, and I guess it is no longer an unusual thing.
The firings will be evaluated in the courts, so stay tuned for more developments there. But for now, we have an FTC with two commissioners, and yes, two commissioners can constitute a quorum. Given the nature of the firings, there may be questions raised as to the legitimacy of the quorum that now exists, but we expect the agency to continue to proceed with the business at hand. And of course, the future next Republican commissioner, Mark Meador, has been voted out of committee (20-8 vote), but a vote date for his actual confirmation has not yet been set, and we anticipate that will become far more contentious given these developments.
So what is the immediate impact of the firings? Well, to the extent that there had been a 2-2 split on some matters that Chair Andrew Ferguson may have wanted to take, that is no longer a barrier, and we may see the FTC start to take some actions that perhaps it could not have done previously. And of course, when we see those matters, they will not be accompanied by dissenting statements from sitting commissioners, and that is not insignificant.
We will continue to keep you posted on developments; we are confident that there will be many.
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