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"Zombie" Voting at the Federal Trade Commission
The FTC is apparently taking actions based upon votes cast by a Commissioner who is no longer on the Commission.
The Federal Trade Commission is an independent regulatory agency that is supposed to have five commissioners, no more than three of which may be members of the same political party. At the moment, however, it has only four–two Democrats and two Republicans–as one commissioner (Rohit Chopra) left the Commission to take the helm of the Consumer Finance Protection Bureau. This creates the potential of a 2-2 deadlock on controversial matters until the Senate confirms a fifth commissioner.
FTC Chair Lina Khan has an ambitious agenda for the Commission, however, and seems intent not to let the 2-2 split get in her way. And at least for the moment, she seems to have found a way to create a 3-2 Commission majority on important matters: Rely on "zombie" votes cast by Chopra before his departure to provide the tie-breaker on matters currently before the commission.
As Politico reports, this creative move is enabled by the FTC's practice of voting on some matters over e-mail. When a motion is made by one commissioner, other commissioners have a period of time to cast their votes for or against the motion. And, Politico reports further, CHopra apparently cast at least 20 votes on various matters (many of which have not been disclosed) just before his departure from the agency on October 8.
From the Politico story:
Just one of those votes has become public so far. But the rest of Chopra's still-undisclosed votes remain active, under the FTC's interpretation of its rules — and can take effect if at least two other commissioners cast votes agreeing with him. The maneuver means Chopra can be the deciding vote for Democratic initiatives until as late as December, despite the agency's current 2-2 partisan split. . . .
three current and former FTC staffers say the rules allow commissioners' vote to remain in effect for up to two months after they cast them. They and one other former FTC staffer spoke on condition of anonymity to discuss procedures the agency considers confidential.
They said it works like this: Any of the five commissioners can introduce a motion for a vote. If no one responds, the motion fails after a month. But if another commissioner seconds it, the motion can live on for another 30 days.
Once a third commissioner votes for a motion, forming a majority, the rest of the commissioners generally have 24 hours to record their vote.
The rules say nothing about the status of votes by commissioners who have since departed, three of the people confirmed.
[Update: The Politico story also includes this interesting tidbit: "The agency would not provide a copy of the rules that govern those votes, instead asking POLITICO to submit an official public records request," which would seem to be contrary to Section 552 of the APA.]
The one vote to become public concerned a policy statement on mergers and prompted a dissent from two of the FTC's Commissioners. They objected that "two sitting commissioners join forces with a zombie vote cast weeks ago by the sitting Director of the Consumer Financial Protection Bureau (CFPB) to launch yet another broadside at the market for corporate control in the United States." They added in a footnote that:
The policy at issue was announced without our participation, which is contrary to longstanding practice and the opposite of what was promised. We retain the original text. As to precisely when to date its adoption, the sitting Director of the Consumer Financial Protection Bureau Rohit Chopra cast his vote weeks ago, and earlier this week the Chair and Commissioner Slaughter opted to announce it.
The FTC's reliance on Chopra's votes is controversial, but the FTC and Chopra claim it is legal. From Politico:
Chopra said his votes comport with the FTC's rules.
"My team and I worked hard to deliberate on a host of matters facing the commission and register my votes on them in accordance with long-standing agency procedures," he said.
The FTC said agency policy allows votes made by a commissioner at any point in their tenure to count for at least a month afterward.
"Not only are the votes on Commissioner Chopra's motions legal, they are a reflection of the commission's work to aggressively tackle some of the most important issues impacting today's American consumers, workers and businesses," spokesperson Lindsay Kryzak said.
This practice may be in technical compliance with the FTC's rules, but I doubt that it is lawful, and should this tactic be used to approve a legally binding order or regulation, I suspect a legal challenge would be successful.
It is fine that the FTC wishes to cast votes electronically over an extended period of time. Various bodies often hold votes open. Circuit courts often do this for en banc petitions. During this period of time, however, votes are not final or effective, as the body's action cannot be effective until there is a majority in support of a position. Among other things, this allows voting members to change their position during any deliberations that may occur while the vote is open (and deliberation, one might think, is a necessary part of reasoned decisionmaking).
Regular readers may recall that the U.S. Court of Appeals for the Ninth Circuit counted the votes of departed judges. The Supreme Court, however, was not amused, and nixed the practice. From the Court's per curiam opinion in Yovino v. Rizo:
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
I would think a similar conclusion would apply here. At the time the relevant orders or decisions are filed, Chopra is no longer an FTC Commissioner, and therefore no longer has the power to cast a vote.
No matter what the FTC's internal rules provide, the FTC Act bars Commissioners from holding any other office while they are Commissioners. This would seem to indicate that any power Chopra had to cast votes, or have his votes be effective, ended the moment he assumed his responsibilities as head of the CFPB. His assumption of another position made his votes a nullity just as they would be were he deceased.
This could all become moot were the Senate to confirm a fifth Commissioner. A nomination has been pending for over a month, but the Senate has yet to act on it.
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Thanks for the swift answer. This makes sense to me.
What distinguishes this case from one where a former President commissioned a judge but left office before delivering the commission? Why doesn’t leaving office invalidate everything that hasn’t been fully completed?
Was the portion of Marbury v. Madison holding that Jefferson had acted illegally in asserting that Adams’ undelivered commissions became void as soon as he left office wrongly decided?
What makes this case different? If a cast vote is still “in progress” until it is given full effect, why isn’t a signed commission still “in progress” until it is delivered?
The logical difference would be that a commission is completed and in force once signed.
This email voting is a process by which members can deliberate and change their votes. So it’s not final until everyone confirms their vote at the end. And Chopra can’t do that.
The Adams equivalent would be if he had to sign and file some sort of return receipt.
If he were here, could he rescind his motion? Or his vote for it anyway?
Per officials doing their job, an “evolving position” might induce a sitting commissioner to change his or her mind before the final tally reaches 3 of 5. And if they aren’t here, that part of the process is unavailable, and so The People are not fully and properly being served by their officials.
The simple question would be whether Chopra would be allowed to change his vote after his departure.
That seems obviously incorrect. Therefore it seems obviously wrong to count his initial vote.
Seems like a big norms violation.
Any comment from our “Norms Patrol”, so active under Trump?
A norm that you don’t pass classified intelligence information to foreign diplomats or shake down heads of state to conduct sham investigations of your political enemies is exactly like a norm concerning the timing of a vote by a multi-member federal agency, you got em Bob From Ohio.
whataboutism is apparently alive and well.
Lol, this was a response to a whataboutism.
Partisan tribalism is alive and well!
The relevant difference is that the first comparison was extremely on-topic. The second was just a pathetic attempt to hijack the thread, because the leftist hypocrisy was all too evident.
Good point, if it was just those two things the absent Norm Patrol complained about. But they complained about many, many things.
So not a good point. But at least you tried.
Oh, we can play fun games with this…
Imagine a situation where there are two Democrat-aligned commissioners, and three Republican-aligned commissioners.
The Democrats cast their vote on an issue as a “Yes”. They leave. A Democratic Congress appoints and confirms new commissioners. And those new Commissioners then cast their vote on the same issue, as a “Yes”. The Republicans all vote “No”.
Do the Democrats win on a 4-3 vote? Since votes by past commissioners count?
Khan: “I’ve given you no word to keep. In my judgment, you simply have no alternative.”
This makes no sense, is this a quote from a movie that you’re reciting to sound cool?
Surely you realise that, in this situation, it could only ever be one movie?
The bit that caught my attention was
It is a sad day for transparency when an agency decides the public isn’t entitled to know how they count votes.
If only there were a distinction between “FTC staffer” and the “agency.”
Maybe you missed this part:
“the agency considers confidential”
Nice try, though. More creative than your usual nonsense. Albeit still complete nonsense.
That sentence seems insufficient evidence for the propositions (1) the unidentified staffer was entitled to speak for the agency and (2) that staffer correctly stated the agency’s position.
Looks like the agency quite succinctly stated its own position:
I hope journalists try to obtain a copy of the rules from the cranky commissioners. I also would welcome a reliable account of how the relevant rules — to the extent they exist — have been applied over time.
This practice sounds bad. But the appropriate response should be careful scrutiny and, if warranted, improvements in procedures or policies. And unless these rules were established this year, partisan potshots — like those taken by two dissenting commissioners, who seemed more interested in polemics than in genuine regulatory concerns — seem paltry and hypocritical.
“This practice sounds bad. But…hypocritical”
Translated from Kirkland-speak, this means some progressives did something even he can’t defend.
What inclines you to conclude Democrats devised, implemented, or used these rules to any degree greater than Republicans?
Have the cranky commissioners claimed this conduct was unprecedented? I found no such assertion in their nine-page, single-spaced dissent, an omission that seemed odd. Nearly every word of that dissent was devoted to standard Republican anti-regulation, business-coddling prose. Have they asserted elsewhere that did not arrange and never used the relevant rule?
I am not now, nor have I ever been, a member of the Republican Party.
They are so bad, they’re *almost* as bad as the Democrats.
But I was focusing on *your* behavior.
Cheap, partisan polemics are unpersuasive. And Republicans — the current losers in the American culture war and modern marketplace of ideas — are destined to continue to be losers unless they find some persuasive arguments.
Without better ideas, clingers are doomed. This (attempted) ankle-nipping will accomplish nothing of substance for conservatives.
I’m pretty sure CNN created a special graphic just for unknown people speaking about secret stuff to make it seem trustworthy.
Hey, Newton Minow is still alive –
https://en.wikipedia.org/wiki/Newton_N._Minow
why not let him vote, too?
You mean other than because he was on the FCC and this is the FTC?
We don’t let trivialities like that stop the revolution.
Well, whatever, Chopra wasn’t on the FTC either when the vote was announced, any more than Minow.
Of course the Ds never cheat about voting.
Of course you (and the Pillow Guy!) have tons of evidence.
So much evidence that they’re frothing at the mouth too much to spit it out.
The evidence is right in the report of this vote being tallied after the person is not part of the commission.
Read the piece again and tell yourself that you don’t find it sleazy and you would find it acceptable if the Rs did it.
This is just any abhorrent instance of vote harvesting before the count is due.
Is there evidence that Democrats (rather than Republicans, or a bipartisan effort) devised and enacted the relevant rule? Is there evidence Republicans have not voted using that rule?
apedad,
Even the blessed Reverend finds it to be a scumbag practice.
Yeah, it sucks. It also has nothing to do with voter fraud.
“I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this—who will count the votes, and how.” – Joseph Stalin
No, it has to do with party integrity.
A Republican voluntarily raising the issue of integrity?
These bigoted, character-deprived conservatives have scant prospect to become competitive in the American marketplace of ideas.
This is not something you can put this on the party. The national party doesn’t get into the ins and outs of the administrative state.
Not everything Dems do that is bad is about the Dems generally being bad. Just like not everything GOP folks do that is bad is about the GOP generally being bad.
S_0,
I never said that the Rs are not sleazy. One only has to look to Trump and his cronies.
As my political hero Richard J. Daley answered when asked shortly after an election if downstate Republicans were cheaters, “Oh no, they’re just as honest as we are here in Cook County.”
So, what happens if this vote turns out to violate FTC rules? Is the decision automatically invalidated? Is it something that has to go to court? What do the rules say about the consequences of not following the rules?
I was researching a (hopefully) tasteless joke, and I discovered that there are *two* Deepak Chopras – one of them is a guru guy and one of whom ran the Canadian postal service.
And Newton Minow is still alive – look what I learn when trying to research jokes!
“I would think a similar conclusion would apply here. At the time the relevant orders or decisions are filed, Chopra is no longer an FTC Commissioner, and therefore no longer has the power to cast a vote.”
Next up: a call for elections boards to police the early vote for anyone who dies before their vote becomes “effective”?
Some states do eliminate early votes by voters who die before election day; they can’t start counting any votes early, and in a pandemic with much early voting this was significant last year.
Other states allow those votes as long as the voter was alive at the time they voted, which really can’t be that far ahead of the election, and they can start to count early votes before election day.
Could make sense either way. Like someone said upthread: Is a voter who voted early entitled to change their vote until election day? If not, then I don’t see the conceptual problem with counting their vote regardless of whether they are alive on election day.
(Of course there’s still a question of principle – one could argue that someone who is dead shouldn’t be able to help determine the fate of those of us who are alive, but that’s a tricky argument because it applies just as much to anyone who dies between voting day and the end of the count.)
What if they die *before* the election starts? Shouldn’t they have a chance to vote?
Does that seem a persuasive argument to you?
Yo mama thought it was persuasive.
This was clearly an attempt to circumvent the rules and that fact had to be known by Chopra’s comrades on the Commission.
Sorta kinda reminds me of the dead people in south Texas who provided the JFK/LBJ ticket’s margin of victory in 1960, having voted overwhelmingly Democratic, with polling-place signatures in identical penciled handwriting signed in alphabetical order.
That sounds bad. But as bad as the disingenuous, delusional ignorance of the Q-class Republicans still ranting about a stolen 2020 election?
One of the Jan. 6ers got three or four years in prison to reflect on his judgment and character and to try to become a better person. Do you agree that this sounds like a sound course for dealing with those losers?
“That sounds bad. But”
Twice in the same thread!
A sign that Democrats did something even Kirkland can’t defend.
Why would you conclude Democrats act any differently from Republicans in this context?
You figure the Volokh Conspiracy doesn’t apply partisan shading to essentially everything it publishes?
You figure this blog’s exhaustive reporting standards and editing practice warrant confidence that this account is comprehensive and a fair report?
I am not now, nor have I ever been, a member of the Republican Party of the United States.
It’s not necessary to be a Republican to mock you.
You mock me. I mock you. The tiebreaker is victory in the culture war, and I gather you are resigned to continuing failure for clingers in the contest to shape America’s future.
Congratulations on establishing a connection with the reality-based world. And look at the bright side — what’s so bad about reason, science, progress, tolerance, education, and modernity?
You tell me, you’re the one who opposed them.
“Congratulations on establishing a connection with the reality-based world.”
The reality is that the Republicans are bad because they’re too similar to the Democrats. They’re almost but not quite as bad.
I was also referring to the point that you appear to be a particularly gullible victim of adult-onset superstition.
The FTC’s rules continue the trend of infantilizing American adults. The FTC presumes that American consumers are just too stupid to check the facts for themselves and properly evaluate claims about products. Yet such rules tend to generate a self-fulfilling prophesy: they encourage consumers to rely on government bureaucrats to do their thinking for them. Such rules promote Homer Simpson’s mentality: “The whole reason we have elected officials [and their legions of bureaucrats] is so we don’t have to think all the time.” Thus, such rules undercut the self-responsible individualism that is the backbone of America’s success.
#AbolishTheFTC
Did you do any research on FTC rules and actions or are you posting from pure ideology here?
Not to mention this whopper: