"Zombie" Voting at the Federal Trade Commission

The Federal Trade Commission is an independent regulatory agency that is supposed to have five commissioners, no more than three of which may be members of the same political party. At the moment, however, it has only four–two Democrats and two Republicans–as one commissioner (Rohit Chopra) left the Commission to take the helm of the Consumer Finance Protection Bureau. This creates the potential of a 2-2 deadlock on controversial matters until the Senate confirms a fifth commissioner.

FTC Chair Lina Khan has an ambitious agenda for the Commission, however, and seems intent not to let the 2-2 split get in her way. And at least for the moment, she seems to have found a way to create a 3-2 Commission majority on important matters: Rely on "zombie" votes cast by Chopra before his departure to provide the tie-breaker on matters currently before the commission.

As Politico reports, this creative move is enabled by the FTC's practice of voting on some matters over e-mail. When a motion is made by one commissioner, other commissioners have a period of time to cast their votes for or against the motion. And, Politico reports further, CHopra apparently cast at least 20 votes on various matters (many of which have not been disclosed) just before his departure from the agency on October 8.

From the Politico story:

Just one of those votes has become public so far. But the rest of Chopra's still-undisclosed votes remain active, under the FTC's interpretation of its rules — and can take effect if at least two other commissioners cast votes agreeing with him. The maneuver means Chopra can be the deciding vote for Democratic initiatives until as late as December, despite the agency's current 2-2 partisan split. . . .

three current and former FTC staffers say the rules allow commissioners' vote to remain in effect for up to two months after they cast them. They and one other former FTC staffer spoke on condition of anonymity to discuss procedures the agency considers confidential.

They said it works like this: Any of the five commissioners can introduce a motion for a vote. If no one responds, the motion fails after a month. But if another commissioner seconds it, the motion can live on for another 30 days.

Once a third commissioner votes for a motion, forming a majority, the rest of the commissioners generally have 24 hours to record their vote.

The rules say nothing about the status of votes by commissioners who have since departed, three of the people confirmed.

[Update: The Politico story also includes this interesting tidbit: "The agency would not provide a copy of the rules that govern those votes, instead asking POLITICO to submit an official public records request," which would seem to be contrary to Section 552 of the APA.]

The one vote to become public concerned a policy statement on mergers and prompted a dissent from two of the FTC's Commissioners. They objected that "two sitting  commissioners join forces with a zombie vote cast weeks ago by the sitting Director of the Consumer Financial Protection Bureau (CFPB) to launch yet another broadside at the market for corporate control in the United States." They added in a footnote that:

The policy at issue was announced without our participation, which is contrary to longstanding practice and the opposite of what was promised. We retain the original text. As to precisely when to date its adoption, the sitting Director of the Consumer Financial Protection Bureau Rohit Chopra cast his vote weeks ago, and earlier this week the Chair and Commissioner Slaughter opted to announce it.

The FTC's reliance on Chopra's votes is controversial, but the FTC and Chopra claim it is legal. From Politico:

Chopra said his votes comport with the FTC's rules.

"My team and I worked hard to deliberate on a host of matters facing the commission and register my votes on them in accordance with long-standing agency procedures," he said.

The FTC said agency policy allows votes made by a commissioner at any point in their tenure to count for at least a month afterward.

"Not only are the votes on Commissioner Chopra's motions legal, they are a reflection of the commission's work to aggressively tackle some of the most important issues impacting today's American consumers, workers and businesses," spokesperson Lindsay Kryzak said.

This practice may be in technical compliance with the FTC's rules, but I doubt that it is lawful, and should this tactic be used to approve a legally binding order or regulation, I suspect a legal challenge would be successful.

It is fine that the FTC wishes to cast votes electronically over an extended period of time. Various bodies often hold votes open. Circuit courts often do this for en banc petitions.  During this period of time, however, votes are not final or effective, as the body's action cannot be effective until there is a majority in support of a position. Among other things, this allows voting members to change their position during any deliberations that may occur while the vote is open (and deliberation, one might think, is a necessary part of reasoned decisionmaking).

Regular readers may recall that the U.S. Court of Appeals for the Ninth Circuit counted the votes of departed judges. The Supreme Court, however, was not amused, and nixed the practice. From the Court's per curiam opinion in Yovino v. Rizo:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

I would think a similar conclusion would apply here. At the time the relevant orders or decisions are filed, Chopra is no longer an FTC Commissioner, and therefore no longer has the power to cast a vote.

No matter what the FTC's internal rules provide, the FTC Act bars Commissioners from holding any other office while they are Commissioners. This would seem to indicate that any power Chopra had to cast votes, or have his votes be effective, ended the moment he assumed his responsibilities as head of the CFPB. His assumption of another position made his votes a nullity just as they would be were he deceased.

This could all become moot were the Senate to confirm a fifth Commissioner. A nomination has been pending for over a month, but the Senate has yet to act on it.