FTC Nominee Khan to Get Monday Cloture Vote

Senate Majority Leader Chuck Schumer, D-N.Y., set a Monday vote to invoke cloture on FTC nominee Lina Khan, setting up a likely final vote as soon as Tuesday. The House Commerce Committee, meanwhile, voted 30-22 Thursday to advance the Consumer Protection and Relief Act to restore FTC Act Section 13(b) consumer redress authority to the commission. House Commerce Republicans echoed their earlier displeasure with HR-2668 (see 2105270067) during the markup.

Senate Minority Whip John Thune of South Dakota told us he expects at least some Republicans to support invoking cloture on Khan. “At least at this point, I’m not expecting” uniform GOP opposition to Khan, he said. Thune and nine other Commerce Committee Republicans voted last month to advance Khan to the full Senate; four voted no (see 2105120063). All 50 Senate Democratic caucus members are expected to vote yes. Her confirmation could briefly give the Democrats a 3-2 commission majority, though sitting Democratic Commissioner Rohit Chopra is expected to leave if the Senate confirms him as Consumer Financial Protection Bureau director (see 2101190019).

House Commerce Chairman Frank Pallone of New Jersey and other Democrats supported HR-2668. The committee eventually voted by voice for a substitute amendment from HR-2668 lead sponsor Rep. Tony Cardenas, D-Calif., to make technical changes to the measure.

“Action is needed now after the Supreme Court gutted” FTC 13(b) “authority” in its unanimous April ruling in AMG Capital Management v. FTC (see 2104220068), Cardenas said. “Some of us said that 13(b) should only be addressed as part of a broader FTC reform” package “and I agree that other FTC reforms are important and worthy of consideration,” but restoring the commission’s “monetary relief” authority is “absolutely necessary under any FTC enforcement scheme that puts consumers first.” He noted the FTC backed 13(b) restoration 4-0 (see 2104270086).

Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., said AMG made it “urgent” Congress pass HR-2668, noting lawmakers have been aware since 2019 that statutory action would be needed to retain FTC redress authority. “This is really a question right now of whether or not you’re going to help the scammers … or you’re going to help consumers” who had benefited from the FTC’s recovery role, she said. Schakowsky said she plans another FTC legislative hearing the last week in June to address “other issues” that Republicans “want to talk about.”

House Commerce voted 28-25 against an amendment from Rep. Gus Bilirakis, R-Fla., that would have changed the proposed statute of limitations from 10 years to five. It would set the bar for the FTC to seek restitution at “conduct that a reasonable person would have known under the circumstances was unfair or deceptive” under Section 5(a)(1). It would also have let the agency seek disgorgement for “any unjust enrichment that the court has a sound basis to conclude that a person, partnership, or corporation obtained as a result of such violation.”

Pallone ruled non-germane an amendment Commerce ranking member Cathy McMorris Rodgers, R-Wash., filed to attach language to HR-2668 from the Online Privacy Act to create a digital privacy agency. The measure, filed in 2019, also would grant rights for U.S. citizens to access, correct or delete their data, plus rights to determine how long companies can keep data (see 1911050062).

McMorris Rodgers said she proposed the amendment to press Commerce Democrats to make “some kind of commitment” to hold a privacy legislative hearing by August. Talks on compromise privacy legislation are “on the back burner” when it should be a top committee priority, she said. Rep. Anna Eshoo, D-Calif., who led the Online Privacy Act last Congress, opposed attaching it to HR-1668, saying she agrees “we need to start” talking about privacy legislation.

The Republicans didn't seek votes on several additional amendments to attach language from other privacy bills, including the Consumer Online Privacy Rights Act (see 1911260055). One was the Setting an American Framework to Ensure Data Access, Transparency and Accountability Act (see 2009180052). Another was the refiled Information Transparency & Personal Data Control Act, which would establish a preemptive national law that gives the FTC targeted rulemaking authority and the ability to fine on first offenses (see 2103100062).

Pallone ruled non-germane an amendment from Rep. Michael Burgess, R-Texas, to attach language to bar patent assertion entities from using demand letters “that state or represent that the recipients are or may be infringing, or have or may have infringed, a patent regarding COVID-19 related products” during the health emergency.