Many have been asking in the last few days what the effect will be of Commissioner Julie Brill’s announced resignation from the Federal Trade Commission (“FTC”). Will it change things as the Supreme Court seems to be changing without Justice Scalia? The short answer: Probably not.
One needs to consider the FTC Act and the makeup of the commission. The statute provides that there can be no more than three commissioners of one party on the five-member commission. Traditionally, except when there is an independent commissioner, the margin would be 3-2, one way or the other. When there is a single vacancy, it takes a 3-1 vote to have a majority. In the times there have been two vacancies, a 2-1 vote is needed.
Hold that thought.
If Commissioner Brill had left a full commission a year ago, it would have left two Democrats and two Republicans. Contentious votes could have deadlocked 2-2, with no majority. However, the resignation of Commissioner Joshua Wright left three Democrats and a single Republican. As Commissioner Brill has been one of the most aggressive commissioners on consumer issues, it is not hard to imagine that most contentious matters would have been either 4-0 or 3-1, with unanimous action by the Democrats. In other words, it would have been necessary for the chairman and the other Democratic commissioner to join Commissioner Brill for a 3-1 majority.
With two vacancies, it will now take a 2-1 vote to approve motions. So the same two Democrats, Chairman Ramirez and Commissioner McSweeney, could become a majority even without Commissioner Brill.
The lesson: Actions of the FTC depend not as much on whether there are three or four commissioners, but more on what the political party breakdown is of the three or four commissioners.