White House: Pending Picks Will Need Renomination in 2022

All pending nominees will need to be renominated in 2022, a White House official said Monday. That includes FTC nominee Alvaro Bedoya, FCC nominee Gigi Sohn and NTIA nominee Alan Davidson.

“It adds a little bit of time” for confirming Bedoya, said BakerHostetler’s Daniel Kaufman, former acting director-FTC Consumer Protection Bureau. “There were a lot of nominees sent back to the White House. It’s not like there’s a need for another hearing, and the vote will happen. It may add a few extra weeks.”

The renominations mean FTC Chair Lina Khan could be waiting some time to regain a Democratic majority. The agency is considering issuing a rule to limit privacy abuses and algorithmic discrimination (see 2112150040). Senate Commerce Committee members from both parties told us last week that Congress should enact privacy legislation before the agency acts.

The commission “should let the national legislature make the laws,” ranking member Roger Wicker, R-Miss., told us. Chair Maria Cantwell, D-Wash., said she’s happy the agency is looking at privacy because it’s an issue that needs “a lot of attention.” The committee would “love it if Congress would act,” she said, noting she didn’t have all details about the FTC’s plans. “I hope we act in the near” future, she said.

Khan wrote Sen. Richard Blumenthal, D-Conn., Dec. 14, saying the agency is committed to using its “full suite of tools to protect Americans from unfair or deceptive practices online,” including rulemaking. Rules could “establish clear market-wide requirements and address potential harms on a broader scale,” she said. Blumenthal applauded Khan for “committing to support a rulemaking strengthening consumer privacy.” The agency “must swiftly advance this essential rulemaking and give power back to consumers,” said Blumenthal. Sen. Brian Schatz, D-Hawaii, also supports an agency rulemaking on algorithmic fairness issues.

FTC technologists are working through potential rules, but Democrats are waiting for the fifth vote to act, said a former agency official. The agency declined to comment beyond Khan’s letter to Blumenthal. Commissioner Christine Wilson has sent mixed signals on whether she would support a privacy rulemaking. She walked back support shortly after Khan took office (see 2107280061).

“I don’t know exactly where they’re going to land or what their goal is, but I have a lot of issues with the FTC,” said Senate Judiciary Committee member Thom Tillis, R-N.C. “I think Congress should take a little bit more control over their actions.” Commerce and Judiciary members should deliver a privacy “blueprint,” he said: That should “occur before the FTC takes any action.”

“I would prefer legislative action, not [a rulemaking] by an administrative agency,” said Sen. Jerry Moran, R-Kan., noting his continued work to reach a bipartisan agreement with Blumenthal. Moran said the two sides are “looking for unique and innovative ways to find a middle ground.”

“We need a full operating FTC to get work done, but Congress needs to act,” said Sen. Ben Ray Lujan, D-N.M. “Not understanding the details of what the FTC is currently pursuing, we have been working on legislative ideas” on privacy. He’s hopeful Congress will “be able to get something moving here real soon.”

The U.S. needs a new agency to regulate social media, not just for privacy, said Sen. Lindsey Graham, R-S.C. “We have agencies for nuclear power. We have agencies for stock trading. I think we need something new with an array of powers.” Asked if he’s working on legislation, he said, “We’ll see. ... Creating a new agency is the right approach. They can deal with this in real time.”