Republicans complain that the Democrats are wielding “zombie” votes, noting that Chopra has moved on to a new job running the Consumer Financial Protection Bureau for President Joe Biden. A debate is raging inside the FTC whether a commissioner’s votes should count once he or she has left the agency.
For Khan’s fellow progressives, though, the unorthodox process offers a chance to push ahead on policies like deterring monopolies, even as procedural hurdles such as the Senate’s filibuster rules stifle much of the liberal agenda in Washington.
Khan has been assertive in wielding party-line votes to turn up the heat on corporate power since becoming chair in June, in what she has called a long-overdue rethinking of the 107-year-old agency’s approach to “rampant consolidation.” But the vacancy in Chopra’s old seat threatens to stall those efforts for months, especially if Senate Republicans drag out confirmation of Biden’s nominee for the post.
So far, Chopra’s retroactively counted votes have influenced only one FTC action to date: a 3-2 vote, announced Oct. 25, approving a policy statement requiring some companies obtain the commission’s approval for future mergers.
The commission’s two GOP members criticized the policy change as “daft” — and cried foul at the way the commission’s majority approved it.
“Today, two sitting commissioners join forces with a zombie vote cast weeks ago by the sitting Director of the Consumer Financial Protection Bureau,” Republican Commissioners Noah Phillips and Christine Wilson wrote in a joint dissent. In a footnote, they added that Chopra had cast his vote “weeks ago … and earlier this week the Chair and Commissioner [Rebecca Kelly] Slaughter opted to announce it.”
Critics note that other parts of the federal government are less forgiving in how they treat actions by now-departed members — such as federal judges who died before their votes could be counted. “Federal judges are appointed for life, not for eternity,” the Supreme Court ruled in a 2019 decision quoted by several people who criticized the FTC handling of Chopra’s votes.
Chopra said his votes comport with the FTC’s rules.
“My team and I worked hard to deliberate on a host of matters facing the commission and register my votes on them in accordance with long-standing agency procedures,” he said.
The FTC said agency policy allows votes made by a commissioner 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 are a reflection of the commission’s work to aggressively tackle some of the most important issues impacting today’s American consumers, workers and businesses,” spokesperson Lindsay Kryzak said.
The FTC, whose duties investigating corporate wrongdoing and suing alleged monopolies, has long been secretive about its proceedings. The commissioners hadn’t met in public for decades until Khan broke that precedent in July, beginning what has turned into a monthly series of open meetings.
The commissioners still typically vote by email, however, outside the public’s view. The agency would not provide a copy of the rules that govern those votes, instead asking POLITICO to submit an official public records request.
But three current and former FTC staffers say the rules allow commissioners’ vote to remain in effect for up to two months after they cast them. They and one other former FTC staffer spoke on condition of anonymity to discuss procedures the agency considers confidential.
They said it works like this: Any of the five commissioners can introduce a motion for a vote. If no one responds, the motion fails after a month. But if another commissioner seconds it, the motion can live on for another 30 days.
Once a third commissioner votes for a motion, forming a majority, the rest of the commissioners generally have 24 hours to record their vote.
The rules say nothing about the status of votes by commissioners who have since departed, three of the people confirmed.
Further adding to the mystery, sometimes the FTC intentionally delays issuing decisions to give commissioners time to write statements or dissents. That happened on Oct. 27 when the FTC announced new data security rules for lenders: Two people confirmed that the 3-2 vote took place before Chopra’s departure — so this action was not a “zombie.”
Depending on how Khan chooses to use Chopra’s votes, the agency may have a legal fight on its hands, experts in the FTC’s procedures said.
The one “zombie” vote announced so far — the policy statement on mergers made public in the last week of October — would be difficult to challenge in court, said William Kovacic, a Republican who chaired the agency under President George W. Bush. That’s because it simply sets out the agency’s future enforcement intentions, he said.
But the legality of Chopra’s votes could be challenged if the agency uses them to initiate a court case or rulemaking, he said.
Opponents could also challenge Chopra’s votes on the grounds that he has found other employment, FTC experts said.
The Federal Trade Commission Act of 1914 forbids commissioners from engaging in “any other business, vocation, or employment.” That caveat was among the reasons the White House rejected an idea advocated by some progressives to name Chopra as acting CFPB head while he was still an FTC commissioner — much like former President Donald Trump did with Office of Management and Budget director Mick Mulvaney.
Beyond the legality of the votes, Kovacic said, their questionable nature could undermine the durability of Khan’s changes.
“You don’t want to take measures that an immediate successor can pitch in the bin right away,” Kovacic said. “I don’t know what you gain if [FTC nominee Alvaro] Bedoya is coming. Why push that document out the door? Why is the end of October better than the end of December or January?”
Biden nominated Bedoya in September to replace Chopra, but the Senate Commerce Committee has yet to hold a confirmation hearing for him. Commerce Chair Maria Cantwell (D-Wash.) said last week she hopes to schedule his hearing for the week of Nov. 15. That could see Bedoya in place by the end of the year if Republicans cooperate.
No senators so far have indicated problems with Bedoya, a privacy expert who worked for the Senate Judiciary Committee before joining Georgetown Law School. Some business groups have urged GOP senators to slow-walk his nomination, however, to keep the FTC deadlocked at 2-2 for as long as possible given Khan’s pledge to pursue an aggressive agenda, an individual familiar with those discussions said.