Yesterday, the Senate confirmed Mark Meador as the newest Republican commissioner of the Federal Trade Commission with a 50-46 vote along party lines. Meador’s confirmation solidifies a Republican majority on the Commission, following the recent dismissals of Democratic commissioners Alvaro Bedoya and Rebecca Kelly Slaughter by President Trump, which we covered here and here.
In theory, Meador’s confirmation should not materially change the day-to-day at the FTC. However, as Bedoya and Slaughter contest their dismissals in court, Meador’s arrival gives Chair Ferguson a clear and functional Republican majority, likely empowering him to advance matters without risk that any 2-0 votes could be nullified down the road should the two dismissed Democratic commissioners ultimately be reinstated. Meador’s presence may also alleviate complications stemming from commissioner recusals, which had previously left the agency unable to act in certain proceedings because both the Chair and Commissioner Holyoak were recused (our analysis of that issue here).
The reinstatement of the Democratic commissioners remains an open question. Both Bedoya and Slaughter have initiated legal challenges, arguing that their removals were unlawful and violated Supreme Court precedent in Humphrey’s Executor. And while it’s true that even if the two Democratic commissioners were reinstated, they would not have the votes to block the Chair’s agenda, dissenting commissioners play an important role in shaping agency action, both by issuing statements that frame the debate and by pushing staff to sharpen their legal and factual arguments, as we discussed here, within the context of the Commission under former Chair Khan. Earlier this week, the full D.C. Circuit gave new support to the dismissed Democratic Commissioners’ cause – reinstating a decision by the district court invalidating the terminations of Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board. We’ll be watching closely as these developments continue to unfold.
Mark Meador’s Background
Mark Meador is a competition-focused veteran of the FTC and the Justice Department’s antitrust division. Meador comes to the FTC from the boutique antitrust law firm, Kressin Meador Powers LLC. At the FTC, he led investigations in the Bureau of Competition’s Healthcare Division, where he was involved in the Commission’s efforts to combat pay-for-delay agreements and product hopping in the pharmaceutical industry. He is also a former staffer to Senator Mike Lee (R-UT), the ranking Republican on the Senate antitrust subcommittee. Generally seen as pro-competition enforcement but with little consumer protection background, Meador drafted a bill for Senator Lee that would have forced the breakup of Google’s ad tech business. Given Meador has limited experience on consumer protection matters directly, we expect that he will likely fall in line with the other Republican Commissioners in supporting traditional enforcement against fraud and deception while speaking to the need to reduce burdens on business and declining to advance novel theories of liability.
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