This week President Barack Obama nominated Terrell McSweeny to fill the vacant FTC Commissioner seat. The seat was left open by Jon Leibowitz’ departure from the Commission. After Edith Ramirez was named Chairwoman, it was the sole remaining Commissioner slot.
McSweeny currently is Chief Counsel for Competition Policy at the Justice Department’s Antitrust Division, a position she has held since 2012. She formerly served as the Domestic Policy Advisor to Vice President Joe Biden and as his Deputy Chief of Staff and Policy Director when he was in the Senate. She also worked on the presidential campaigns of former vice president Al Gore and retired U.S. Army General Wesley Clark. In addition to her political and government work, McSweeny was an associate at O'Melveny & Myers LLP. She holds degrees from Harvard University and Georgetown University Law School.
McSweeny's confirmation should alter the Commission’s dynamics. No more than three of the five Commissioners may be members of the president’s political party, and with the current vacancy the Commission is evenly split, with two Democrats (Chairwoman Ramirez and Commissioner Julie Brill) and two Republicans (Commissioners Joshua Wright and Maureen Olhausen). Under the Commission’s operating rules, a majority vote of the sitting Commissioners is required to undertake official actions. Thus, with the addition of McSweeny, Ramirez would no longer need a Republican vote to move forward with enforcement actions.
The Senate must confirm McSweeny’s nomination. She is not well known in antitrust circles, making it harder to predict how she will act on the Commission. Without more of a record to illuminate how she might vote, Republicans may anticipate that she would, on balance, be supportive of the Chairwoman and in favor of more aggressive enforcement actions. Accordingly, Senate Republicans may be slow to approve her nomination.
McSweeny worked on healthcare matters in her policy advisor role. Her background aligns with the FTC’s focus on the healthcare industry and may signal that the Commission will continue to give attention to the industry.