It took eight months of hearings, nominations, health-related delays and a casting vote from the vice president, but the Senate has confirmed Alvaro Bedoya as the fifth commissioner of the Federal Trade Commission. More importantly – and almost certainly why his confirmation was such a lengthy and controversial process – he is the third Democrat and will likely be a casting vote himself soon.
The FTC has spent most of Khan’s tenure with two Republican commissioners (Noah Phillips and Christine Wilson) and two Democrats (chairman Lina Khan and Rebecca Kelly Slaughter). Anything Khan wanted to do that required the committee’s vote would either have to get the support of at least one Republican or it wouldn’t happen at all. That will no longer be the case.
“Alvaro’s knowledge, experience and energy will be a great asset to the FTC as we continue our critical work,” Khan said in a statement† “I am delighted to be working with him, along with our other commissioners, once his appointment is finalized by President Biden.”
Bedoya comes to the FTC from Georgetown Law’s Center on Privacy and Technology, which he founded. His nomination, which took place as early as September, was welcomed by privacy advocates. Bedoya said in his confirmation hearing last year that he planned to focus on privacy issues, including data and facial recognition. Without federal consumer privacy laws, the FTC’s powers are limited, but it can — and still is — chasing companies on privacy issues.
It’s more likely that the Republicans’ problems had not been with Bedoya or his tweets, but with Bedoya giving the FTC the Democratic majority it has missed since Rohit Chopra’s departure in October. Republicans are not agitated with Khan’s work at the FTC, to say the least, seeing her as a divisive radical progressive who plans to reshape the agency’s antitrust approach and give it more authority than they think it should have. The business world isn’t a fan of Khan either. The lobbying group US Chamber of Commerce has made: no secret of her problems with her, and recently sent a letter against Senator Chuck Schumer and Mitch McConnell who urged them to postpone the Bedoya vote because his confirmation would give Khan a majority. Proponents of antitrust reforms, on the other hand, celebrated Bedoya’s confirmation.
“In addition to Chairman Lina Khan and Commissioner Rebecca Kelly Slaughter, we can finally envision an effective FTC that will play a critical role in leveling the playing field and restoring our country’s economy,” said Stacy Mitchell, co-director of the Institute for Local Self-Reliance, said in a statement.
The anti-Bedoya side got its way for a while; Bedoya’s confirmation was significantly delayed. It took so long for the Senate to confirm Bedoya that he was to be nominated again early this year. When it became clear that no Republicans would vote for Bedoya, Schumer had to wait for all Democratic senators and Vice President Harris to be present to vote for him. Previous efforts were thwarted when Senator Ben Ray Luján suffered a stroke, and again when several Democratic senators and the vice president tested positive for Covid-19. On May 11, Bedoya was confirmed 51-50.
That’s not to say the FTC hasn’t done anything during the last seven months of stalemate. The agency unanimously agreed to block a massive merger between semiconductor chip companies Nvidia and ARM and also a fusion between Lockheed Martin and Aerojet. And Khan has been able to move forward with things that don’t require an agency vote and probably wouldn’t have gotten the votes of the Republican commissioners if they had.
Khan was not able to get votes for a survey of benefit managers in the pharmacy, something she said”very disappointedher. And the FTC did not trade on the Amazon-MGM merger before it closed, which many expected that given Khan’s history of criticizing Amazon for alleged anticompetitive actions.
Bedoya will enter an agency that seems to have internal problems. There is bickering between the commissioners, for example: Wilson has… created new secret of her distaste for Khan’s approach to leadership and antitrust enforcement. But one recent survey also showed that trust in and respect among senior leadership bureau staff plummeted during Khan’s short tenure. The FTC told Recode that the investigation was conducted during a period of significant change at the FTC, and that Khan has “tremendous respect” for FTC personnel and is “committed to ensuring that the FTC remains a great place to be.” to work. †
As for the Republican commissioners, however, there is reason to believe that they get along better with Bedoya than they apparently do with Khan. Last November, Wilson tweeted that she would be “very happy indeed” to welcome him and his knowledge of privacy, adding that “he is a very nice guy who I enjoy hanging out with!” And Phillips said: last September that Bedoya would be a “clear and thoughtful voice”.
With Bedoya on board, Khan can look forward to leading the FTC as she did last summer, when the FTC had three Democratic commissioners — which is certainly the way she’d envisioned herself since becoming its chairman. During that time, the agency successfully re-filed its lawsuit against Meta, with Wilson and Phillips vote against the. Khan no longer has to settle for what the Republican commissioners will put up with. That Amazon-MGM merger may be closed, but it can still be challenged.
And perhaps, true to his word, Bedoya will work to improve consumer data privacy. Khan has already spotted that the FTC will look into data privacy — which has been getting a lot of attention lately after news that Roe v. Wade can be destroyed — both as a consumer protection and competition issue. That should make the big tech companies, whose power largely stems from the data they collect, nervous.