FTC Nominee McSweeny Would Bring Political Experience, Broad Knowledge to Agency, Observers Say
The newest FTC nominee will likely benefit from her political experience and the broad knowledge she gained while working on antitrust issues at the Department of Justice, observers of both agencies and those who used to work at DOJ told us. Terrell McSweeny -- whose nomination by President Barack Obama was announced last week (CD June 24 p12) -- is senior counsel-competition policy in DOJ’s Antitrust Division. She has previously served as deputy assistant to the President Barack Obama and domestic policy adviser to Vice President Joe Biden and as counsel to the Senate Judiciary Committee for then-Sen. Biden, D-Del.
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At DOJ, McSweeny is “more of a generalist” with “extensive knowledge across all industries,” former DOJ Chief Counsel for Competition Policy and Intergovernmental Relations Gene Kimmelman told us. He is now director of the New America Foundation’s Internet Freedom and Human Rights Project. “She’s involved with all of the major matters that are in front of the division,” which has given her experience in a number of industries and sectors, he said. “There really are a lot of issues presented before the division,” ranging from communications to healthcare to the environment, he continued. In addition to her year at the DOJ -- where she’s been “immersed” in antitrust issues -- McSweeny would bring to the FTC her experience with competition issues at the White House, as a lawyer and as general counsel for the Senate Judiciary Committee, he said. She has “excellent experience and credentials,” and her confirmation hearing will likely “be straight-forward and smooth-sailing,” Kimmelman said.
From her time at DOJ, McSweeny has experience with intellectual property and patent assertion entities (PAEs), said Joe Wayland, partner at Simpson Thacher and former acting assistant attorney general for the Antitrust Division. FTC Chairwoman Edith Ramirez has said she wants the agency to investigate PAEs (CD June 21 p16). “Both agencies have been vocal about their concerns” over PAEs, Wayland said. “That’s a concern that Terrell would share.” Wayland said McSweeny’s strength lies in her “wide-ranging knowledge of policy issues” and her ability to work with Congress. “She has a very strong record, which I think will be appreciated” in her confirmation hearing, he said. DOJ and FTC spokespeople had no comment for this story.
McSweeny has a “long political background, and that can be helpful” at the FTC, said American Antitrust Institute President Bert Foer. McSweeny -- who Foer described as “very personable and very bright” -- will likely be benefitted by the versatility she gained working in politics, he continued. As an FTC commissioner, “you need to be able to deal with a lot of industries and situations,” he said. “Sometimes a person with a political background is really good at that.” Kimmelman said she would bring to the FTC “the best skills of a top Hill staffer,” including the ability “to really dig deeply and ask tough questions.” Those skills “will really serve her well at the FTC,” he said.
It’s difficult to predict when McSweeny will get her confirmation hearing, Foer said. Currently, the commission is comprised of two Democrats and two Republicans, giving the Republicans a “veto power” they will lose when the third Democratic spot is filled, he continued. “Why would they rush themselves to give that up” when Republicans could “wait until you can get something in return” before they agree to approve McSweeny’s nomination, he said. The trajectory of the confirmation process is usually unrelated to the nominee, said Bill Kovacic, director of George Washington University’s Competition Law Center and former FTC chairman. “That process is so unpredictable and moves or stalls based on things that have nothing to do with the nominee."
McSweeny’s limited antitrust experience is likely to come up during her confirmation hearing, said Geoffrey Manne, a senior fellow at TechFreedom. “I don’t know what they're going to focus on …. because they don’t have much to go on.” Her political background and connections “will ultimately ensure that nothing is that worrisome for her,” he continued. Observers will likely see “the party-line politics you would expect,” meaning that Democrats will be “absolutely supportive and protecting her” due to her work in the Obama administration in Biden’s office, said Manne.
Commissioner Joshua Wright’s proposed policy statement on the FTC’s authority to prosecute unfair methods of competition under Section 5 of the FTC Act (CD June 20 p8) may come up during the confirmation hearing, Manne said. “It’s not even clear that [the proposed policy statement] will become an actual issue for the FTC” because Ramirez has “sidestepped” the topic, he said. Still, the statement and discussions about the agency’s authority “could and should” become something the agency considers, he said. While Ramirez’s hesitance is “a pretty important hurdle to get over … I think there are other sources of pressure,” including political pressure, he said. “I think it has a real chance of going somewhere.”
Pai deserves credit “for noting the possible chilling effect in holding carriers liable via regulation for compliance with voluntary codes of conduct,” said Steve Berry, president of the Competitive Carriers Association. “As CCA has previously noted, many smaller carriers are either uninvolved in the drafting of these codes of conduct, or commit to them in one iteration at one point in time but are subject to later iterations which they neither drafted nor negotiated.”