Bedoya’s Confirmation Restores Democratic FTC Majority

President Biden nominated Bedoya to the FTC in September 2021. Since that time, Bedoya has faced uniform Republican opposition in the Senate on the grounds that his nomination would increase partisan tension on the traditionally bipartisan commission. Some Republicans also have said their opposition is due to anger over the Biden administration’s designation of Lina Khan as Chair once she took office at the FTC, even though the administration put her forward as a non-Chair commissioner. Bedoya’s nomination deadlocked 14-14 in the Senate Commerce Committee in March, and was ultimately advanced from committee by a 51-50 vote of the full Senate, with Vice President Harris casting the tiebreaking vote. After repeated delays due to COVID-related absences in the Democratic caucus, the Senate confirmed Bedoya by the same thin margin, with Harris again breaking the tie.

Bedoya’s confirmation may affect how the FTC considers consumer privacy. Bedoya has spent much of his academic career focused on privacy. Bedoya joins the FTC from a position at Georgetown Law, where he founded the school’s Center on Privacy & Technology. Bedoya’s scholarly work includes a law review article titled Privacy as Civil Right,¹ in which he argues that surveillance has historically targeted marginalized communities and that privacy must be recognized as a civil right to protect those communities. He has also co-authored two reports on face scans and facial recognition software (linked here and here, respectively), and a book chapter on “Algorithmic Discrimination” in The Cambridge Handbook of Consumer Privacy.² Before his academic career, Bedoya was chief counsel for the U.S. Senate Judiciary Subcommittee on Privacy, Technology, and the Law. Khan has voiced a desire to increase scrutiny on the privacy implications of tech transactions, and Bedoya’s confirmation may lead the FTC to take a stronger stance on privacy issues.

Although Bedoya has spent comparatively little, if any, time on antitrust issues, his confirmation portends even greater change on FTC antitrust policy and enforcement. As recently summarized in Vinson & Elkins’ 2021 Energy and Chemicals Antitrust Report, Khan has sought to expand the scope of antitrust review beyond its traditional core of preventing consumer harm. This includes not only increased scrutiny of mergers over non-price aspects of competition, but also a new focus on factors not traditionally considered by competition regulators, such as environmental, labor market, and consumer privacy concerns. Before Chopra left the commission, it voted 3-2 to expand the scope of mergers subject to “prior approval,” rescinding a bipartisan policy from 1995. The FTC also took 3-2 votes withdrawing the Vertical Merger Guidelines and the FTC Act Section 5 Statement. These policy changes have increased the compliance burden on businesses, while providing less clarity on how the FTC reviews issues that come before it.

Progress on Khan’s agenda has stalled since Chopra’s departure from the commission. In February, the FTC failed to move forward with an investigation of pharmacy benefit managers after a 2-2 party-lines vote. The FTC also announced it is in the process of updating its merger guidelines, a process unlikely to result in new guidance without a Democratic majority on the commission. In addition, we understand that Khan has lacked the votes to challenge some transactions before the commission. Bedoya’s confirmation will give Khan the Democratic majority she needs to move forward with her enforcement agenda and challenge deals without support from the Republican members of the FTC.

¹ 50 N.M. L. Rev. 301-319 (2020).

² Alvaro M. Bedoya, Algorithmic Discrimination vs. Privacy Law, in The Cambridge Handbook of Consumer Privacy 232-240 (Evan Selinger et al. eds., 2018).