Zombies to the rescue: the obscure voting rule that could save the Democrats’ antitrust agenda


Republicans complain that Democrats are casting “zombie” votes, noting that Chopra has moved to a new post as head of the Consumer Financial Protection Bureau for President Joe Biden. A debate rages within the FTC over whether a commissioner’s votes should count once he or she leaves the agency.

For Khan’s other progressives, however, the unorthodox process offers a chance to advance policies such as deterrence from monopolies, even as procedural hurdles such as Senate obstruction rules stifle much of the agenda. liberal in Washington.

Khan has asserted herself by exercising party line votes to ramp up the pressure on corporate power since she became president in June, in what she called a long-awaited overhaul of the government’s approach. the 107-year-old agency in “creeping consolidation”. But the vacancy of Chopra’s former seat threatens to block those efforts for months, especially if Senate Republicans delay confirming Biden’s candidate for the post.

So far, Chopra’s retroactively counted votes have influenced only one FTC action to date: a 3-2 vote, announced on October 25, approving a policy statement demanding that certain companies get the vote. commission approval for future mergers.

Both GOP members of the committee criticized the policy change as “silly” – and cried foul at how the majority of the committee approved it.

“Today, two sitting commissioners join forces with a zombie vote cast weeks ago by the sitting director of the Office of Consumer Financial Protection,” Republican Commissioners Noah Phillips and Christine Wilson said. wrote in a joint dissent. In a footnote, they added that Chopra voted “weeks ago … and earlier this week the President and Commissioner [Rebecca Kelly] Slaughter chose to announce it.

Critics note that other parts of the federal government are less lenient in how they treat the actions of members now deceased, such as federal judges who died before their votes could be counted. “Federal judges are appointed for life, not for eternity”, Supreme Court ruled in 2019 ruling cited by several who criticized the FTC’s handling of Chopra’s votes.

Chopra said his votes were in accordance with FTC rules.

“My team and I have worked hard to deliberate on a multitude of issues facing the commission and to record my votes on them in accordance with the agency’s longstanding procedures,” he said.

The FTC said agency policy allows a commissioner’s votes at any point in their tenure to count for at least a month afterward.

“Not only are the votes on Commissioner Chopra’s motions legal, they reflect the commission’s work to aggressively tackle some of the most important issues impacting American consumers, workers and businesses in the United States. ‘today,’ spokeswoman Lindsay Kryzak said.

The FTC, whose functions investigate corporate wrongdoing and prosecute alleged monopolies, has long kept its proceedings a secret. The commissioners hadn’t met in public for decades until Khan broke that precedent in July, starting what turned into a monthly series of town halls.

Commissioners still generally vote by email, however, out of public view. The agency would not provide a copy of the rules governing those votes, instead asking POLITICO to submit a formal request for public registration.

But three current and former FTC staff say the rules allow the commissioner vote to remain in effect for up to two months after voicing it. They and another former FTC staff member spoke on condition of anonymity to discuss procedures the agency considers confidential.

They said it works like this: any of the five commissioners can move a motion for a vote. If no one responds, the motion fails after a month. But if another commissioner supports it, the motion can live for another 30 days.

Once a third commissioner votes on a motion, forming a majority, the other commissioners usually have 24 hours to record their vote.

The rules say nothing about the voting status of commissioners who have since left, three of the people confirmed.

Adding to the mystery, the FTC sometimes intentionally delays the release of rulings to give commissioners time to draft divergent statements or opinions. This happened on October 27 when the FTC announced new data security rules for lenders: two people confirmed that the 3-2 vote took place before Chopra left – so this action was not a zombie “.

Depending on how Khan chooses to use Chopra’s votes, the agency may have a legal battle in its hands, FTC procedural experts have said.

The only “zombie” vote announced so far – the merger policy statement released the last week of October – would be difficult to challenge in court, said William Kovacic, a Republican who has chaired the agency under President George W. Bush. That’s because it simply sets out the agency’s future law enforcement intentions, he said.

But the legality of Chopra’s votes could be challenged if the agency uses them to initiate legal action or rule-making, he said.

Opponents could also challenge Chopra’s votes on the grounds that he found another job, FTC experts said.

The Federal Trade Commission Act of 1914 prohibits commissioners from engaging in “any other business, vocation or employment.” The warning was one of the reasons the White House rejected an idea championed by some progressives of appointing Chopra as interim CFPB head while he was still FTC commissioner – much like the former one. President Donald Trump did it with the Director of the Office of Management and Budget, Mick Mulvaney.

Beyond the legality of the votes, Kovacic said, their questionable nature could undermine the sustainability of Khan’s changes.

“You don’t want to take action that an immediate successor can throw in the trash right away,” Kovacic said. “I don’t know what you earn though [FTC nominee Alvaro] Bedoya arrives. Why push this document out the door? Why is the end of October better than the end of December or January? “

Biden appointed Bedoya in September to replace Chopra, but the Senate Trade Committee has yet to hold a confirmation hearing for him. Trade President Maria Cantwell (D-Wash.) Said last week that she hoped to schedule her hearing for the week of November 15. This could see Bedoya in place by the end of the year if Republicans cooperate.

So far, no senator has reported problems with Bedoya, a privacy expert who worked for the Senate Judiciary Committee before joining Georgetown Law School. Some business groups, however, have urged GOP senators to slow down his appointment, however, to keep the FTC deadlocked at 2-2 for as long as possible given Khan’s pledge to continue an aggressive agenda, said someone familiar with these discussions.

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