Phillips alerted FTC staff to his pending departure on Monday morning, according to a copy of the memo obtained by POLITICO. A departure date has not been set, but Phillips said he plans to resign in the Fall. While Phillips said his primary reason for leaving was to about prioritizing his family, he said one factor was his sense that other commissioners weren’t open to discussion and compromise.
A FTC spokesperson did not immediately respond for comment.
Since Khan became chair in June 2021, Phillips and his fellow Republican Commissioner Christine Wilson have openly sparred with her over policy and enforcement priorities and her management of the agency, which has suffered from plummeting morale since Khan took over. They have argued that the agency needs less money, not more as she’s requested, that Khan is throwing up unnecessary roadblocks for corporate mergers, and that she’s refusing input from dissenting voices.
Once his spot opens up, there could be intense jockeying over his replacement. The president typically defers to the opposite party in the Senate when nominating minority commissioners at independent agencies. But as Congress heads into a heated midterm election and is facing bipartisan pressure for antitrust reform, the nomination could be a divisive pick.
It’s unclear who will have the upper hand in the selection, but Sen. Ted Cruz (R-Tex.) will likely play a major role. Cruz, who is expected to be either chair of the powerful Senate Commerce Committee (which has FTC oversight authority) or its ranking member, praised Lina Khan’s accomplishments at her nomination hearing but was hypercritical of Alvaro Bedoya, the most recently confirmed Democratic commissioner, who he called a “radical.” Cruz, himself a former FTC staffer, has criticized the tech giants over perceived biases against conservative speech and he could push for someone ideologically aligned with those goals.
Sen. Roger Wicker (R-Miss.) the current Senate Commerce ranking member is also expected to weigh in. Though Wicker initially supported Khan, he has since expressed concerns over her management of the agency, making him likely to favor a less aggressive commissioner as well.
And while Biden is likely to defer to Senate norms on nominations, he has made antitrust enforcement and competition policy a key part of his agenda, and the White House could angle for someone aligned with Khan.
“Fundamentally more than anything else now is the right time for me and my family,” said Phillips, who has been at the agency for a little more than four years.
He added, however, that current agency dynamics also played a role in his decision to leave. In particular, he said a contributing factor was what he described as an unwillingness by the majority to build consensus.
“I have always tried to bring to light the tradeoffs the commission faces in doing the work we do,” Phillips said, whether that relates to intellectual property or merger enforcement. “And the conversation lately has not accounted for the serious discussion of counterargument.”
In March, Phillips, along with Wilson, took the unusual step of arguing against the White House’s request for a 30 percent budget increase for the agency.
There is “no assurance that the agency will abandon its present course of deviating from sound legal precedent and the commission’s established jurisdiction,” they said in a March statement. The pair also called the majority commissioners’ changes to merger review procedures, which they said would make it unnecessarily more onerous on companies, as “bonkers crazy”.
“I have tremendous respect for Chairman Simons, [Acting] Chairwoman Slaughter and Chair Khan,” Phillips said of the three agency heads he has worked with. “I have disagreed with each of them sometimes emphatically. But it’s fair to say lately there have been more disagreements.”