There is one thing we know about the future of the U.S. Federal Trade Commission. In just over two months, on 25 Sept., FTC Chair Lina Khan's term expires.
Khan has overseen an active three years at the FTC, to put it mildly. Her focus on market structure and power dynamics has set a bold — and at times highly contentious — new direction at the agency, which has been reflected in its selection and pursuit of privacy enforcement actions and rulemakings.
As Khan put it in her remarks at IAPP Global Privacy Summit 2022, her FTC has focused on maximizing the impact of its "scarce resources" by seeking out business practices that cause "widespread harm," whether from dominant firms or "intermediaries that may facilitate unlawful conduct on a massive scale."
There are many other things we do not know.
The end of Khan's term does not mean the end of her tenure. When an FTC commissioner's term expires, they may remain in their position until a replacement is nominated by the president and confirmed by the U.S. Senate. Thus, Khan may keep her commissioner seat until she decides to step aside or until a replacement is fully confirmed.
Alternatively, Khan could be re-nominated by President Joe Biden to serve an additional term. So far, Biden has not taken this initial step. Even if he did so, the amount of Senate floor time is rapidly dwindling.
Although Senate Majority Leader Chuck Schumer, D-N.Y., has made clear that the top priority is to continue to confirm "President Biden's well qualified and diverse nominees," it may be difficult for Senate leadership to prioritize what would almost certainly become a contentious nomination proceeding. It is also possible, but unlikely, Biden puts forward a different nominee for Khan's seat before the end of the term.
Without action from the president and the Senate, Khan will remain in her commissioner seat indefinitely. But the position of chair is another story.
The chair of the FTC can only be changed by the president. The president must select from the pool of confirmed commissioners. In fact, the start of Khan's term was marked by a surprising and unprecedented move by President Biden.
Rather than name an existing commissioner to serve as chair, Biden named the commissioner who had just been confirmed by the Senate under his nomination, Lina Khan. The political blowback was felt in nomination proceedings for years, but Biden made a clear statement about the direction he wanted for America's top competition and consumer protection enforcer.
Historically, FTC chairs have resigned when presidential administrations shift to a different party. This reflects the friendly and bipartisan approach to the FTC's mission that has characterized the agency for most of its history.
But we are not living through friendly times.
Because the FTC is an independent agency, the president may only remove a commissioner for cause, specifically for "inefficiency, neglect of duty, or malfeasance in office." The FTC cannot have more than three commissioners from any given party, but there is no formal rule that the party in power must be reflected by the majority of commissioners.
If a Democrat wins the presidency in the 2024 election, they would likely retain Chair Khan and seek her re-nomination, though they could also decide to change course. If the Republican nominee wins the White House, he will either inherit an agency with three Democrat and two Republican commissioners or a split commissioner bench and a vacancy, depending on whether Khan decides to step down.
Traditional wisdom would suggest a Republican president would name one of the Republican commissioners to serve as chair, either Commissioner Andrew Ferguson or Commissioner Melissa Holyoak. Unfortunately for Holyoak, she drew a short straw and inherited a term that expires in September 2025, but naming her as chair would still be faster than waiting for Senate confirmation of a new commissioner.
But we are not living through a time when traditional wisdom reigns.
Newly anointed Republican vice-presidential candidate J.D. Vance made headlines when he said Chair Khan has been doing a "pretty good job." Vance is currently a U.S. senator from Ohio who serves on the Committee on Commerce, Science and Transportation, which oversees the FTC. He shares Khan's focus on reigning in firms with outsized market power.
In remarks at a Bloomberg event in February, Vance went on to say, "The fundamental question to me is how do we build a competitive marketplace, that is pro-innovation, pro-competition, that allows consumers to have the right choices and isn't just so obsessed on pricing power within the market that it ignores all the other things that really matter."
Of course, Vance is not who would ultimately decide the next FTC chair, but his alignment with Khan's priorities highlights the current blurring of political lines around tech policy issues.
Regardless of what the future holds, the next few months will be an important time for Khan's office to shore up the impacts that her term has had on the agency. We are likely to see a focus on wrapping up enforcement and regulatory actions, including perhaps the next step in the rulemaking on commercial surveillance and data security.
Even as Khan's tenure draws to an end, the story of her legacy is still being written.
Please send feedback, updates and crystal balls to cobun@iapp.org.
Cobun Zweifel-Keegan, CIPP/US, CIPM, is the managing director for Washington, D.C., at the IAPP.
