Last March, after Commissioner Brill stepped down from the FTC, we blogged about the almost unprecedented situation where the FTC is down to three sitting Commissioners. Notwithstanding the unusual situation the Commission found itself in, it seems to have done well with just three Commissioners over the past 10 months. Today, however, Chairwoman Ramirez announced her resignation, effective February 10. Unless the incoming administration quickly nominates individuals to fill one or more of the now three vacancies and the Senate confirms them, the FTC will truly be in unchartered territory with just two Commissioners.
The rules, however, remain the same. And while the possibility of a deadlocked Commission is greater, as Commissioner Ohlhausen (one of the last two members of the tribe left on the island) recently pointed out in an article, most of the FTC’s decisions are unanimous and bipartisan. And what are the rules? The Commission can act as long as a majority of sitting and not recused Commissioners participate – in this case two, although if one of the two Commissioners recuses herself, then a single Commissioner would constitute a quorum (and the FTC starts to look a whole lot more like the CFPB). You can actually see this principle in action if you look at the Commission’s decision in the Prevagen case that we blogged about earlier this week where one of the three current Commissioners recused herself.
And in case you’re wondering, the remaining two Commissioners’ terms expire in September 2017 (Comm. McSweeny) and September 2018 (Comm. Ohlhausen) (Commissioner terms are 7 years but those terms start and stop on a fixed date rather than when the Commissioner is sworn in. Often Commissioners are appointed to fill out the remaining term of a Commissioner who resigned, so Commission terms don’t necessarily expire in the order they arrived). Presumably Congress and the President-elect will act to fill the three vacancies quickly so that we don’t have to blog (and do the abstract math required) about what constitutes a quorum of zero.