- NOMINATION TO THE FEDERAL TRADE COMMISSION AND THE CONSUMER PRODUCT SAFETY COMMISSION

[Senate Hearing 118-651]
[From the U.S. Government Publishing Office]

S. Hrg. 118-651

NOMINATION TO THE FEDERAL TRADE
COMMISSION AND THE CONSUMER
PRODUCT SAFETY COMMISSION

=======================================================================

HEARING

before the

COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE

ONE HUNDRED EIGHTEENTH CONGRESS

FIRST SESSION

----------

SEPTEMBER 20, 2023

----------

Printed for the use of the Committee on Commerce, Science, and
Transportation

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Available online: http://www.govinfo.gov

NOMINATION TO THE FEDERAL TRADE COMMISSION AND THE CONSUMER PRODUCT
SAFETY COMMISSION

S. Hrg. 118-651

NOMINATION TO THE FEDERAL TRADE
COMMISSION AND THE CONSUMER
PRODUCT SAFETY COMMISSION

=======================================================================

HEARING

before the

COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE

ONE HUNDRED EIGHTEENTH CONGRESS

FIRST SESSION
__________

SEPTEMBER 20, 2023
__________

Printed for the use of the Committee on Commerce, Science, and
Transportation

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Available online: http://www.govinfo.gov

______

U.S. GOVERNMENT PUBLISHING OFFICE

60-396 PDF WASHINGTON : 2025

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

ONE HUNDRED EIGHTEENTH CONGRESS

FIRST SESSION

MARIA CANTWELL, Washington, Chair
AMY KLOBUCHAR, Minnesota TED CRUZ, Texas, Ranking
BRIAN SCHATZ, Hawaii JOHN THUNE, South Dakota
EDWARD MARKEY, Massachusetts ROGER WICKER, Mississippi
GARY PETERS, Michigan DEB FISCHER, Nebraska
TAMMY BALDWIN, Wisconsin JERRY MORAN, Kansas
TAMMY DUCKWORTH, Illinois DAN SULLIVAN, Alaska
JON TESTER, Montana MARSHA BLACKBURN, Tennessee
KYRSTEN SINEMA, Arizona TODD YOUNG, Indiana
JACKY ROSEN, Nevada TED BUDD, North Carolina
BEN RAY LUJAN, New Mexico ERIC SCHMITT, Missouri
JOHN HICKENLOOPER, Colorado J. D. VANCE, Ohio
RAPHAEL WARNOCK, Georgia SHELLEY MOORE CAPITO, West
PETER WELCH, Vermont Virginia
CYNTHIA LUMMIS, Wyoming
Lila Harper Helms, Staff Director
Melissa Porter, Deputy Staff Director
Jonathan Hale, General Counsel
Brad Grantz, Republican Staff Director
Nicole Christus, Republican Deputy Staff Director
Liam McKenna, General Counsel

C O N T E N T S

----------
Page
Hearing held on September 20, 2023............................... 1
Statement of Senator Cantwell.................................... 1
Prepared statement........................................... 3
Statement of Senator Cruz........................................ 1
Order Denying Motion to Disqualify Richard G. Parker, Esq.... 120
Statement of Chairman Deborah Platt Majoras Concerning
Petition Seeking My Recusal from Review of Proposed
Acquisition of Hellman & Friedman Capital Partners V, LP
(DoubleClick Inc.) by Google, Inc.......................... 124
Statement of Senator Tester...................................... 128
Statement of Senator Thune....................................... 129
Statement of Senator Hickenlooper................................ 131
Statement of Senator Fischer..................................... 133
Statement of Senator Klobuchar................................... 135
Statement of Senator Blackburn................................... 137
Statement of Senator Markey...................................... 139
Statement of Senator Schmitt..................................... 140
Statement of Senator Peters...................................... 142
Statement of Senator Vance....................................... 145
Statement of Senator Welch....................................... 146
Statement of Senator Capito...................................... 148
Statement of Senator Sullivan.................................... 150

Witnesses

Hon. Mitch McConnell, U.S. Senator from Kentucky................. 5
Hon. Mike Lee, U.S. Senator from Utah............................ 7
Rebecca K. Slaughter, Nominee to be a Commissioner, Federal Trade
Commission..................................................... 8
Prepared statement........................................... 9
Biographical information..................................... 10
Andrew N. Ferguson, Nominee to be a Commissioner, Federal Trade
Commission..................................................... 25
Prepared statement........................................... 27
Biographical information..................................... 28
Melissa Holyoak, Nominee to be a Commissioner, Federal Trade
Commission..................................................... 66
Prepared statement........................................... 67
Biographical information..................................... 68
Douglas Dziak, Nominee to be a Commissioner, Consumer Product
Safety Commission.............................................. 83
Prepared statement........................................... 85
Biographical information..................................... 86

Appendix

Letter dated September 20, 2023 to Hon, Maria Cantwell and Hon.
Ted Cruz from David French, Senior Vice President, Government
Relations, National Retail Federation.......................... 161
Redacted Christine Wilson Meta-Within Dissent.................... 162
Memorandum of FTC DAEO re Federal Ethics Response to Meta
Petition for Chair Khan's Recusal.............................. 171
Response to written questions to Rebecca K. Slaughter submitted
by:
Hon. Tammy Duckworth......................................... 193
Hon. Kyrsten Sinema.......................................... 194
Hon. Raphael Warnock......................................... 195
Hon. Ted Cruz................................................ 197
Hon. Jerry Moran............................................. 199
Hon. Dan Sullivan............................................ 201
Response to written questions submitted to Andrew N. Ferguson by:
Hon. Maria Cantwell.......................................... 303
Hon. Tammy Duckworth......................................... 306
Hon. Kyrsten Sinema.......................................... 307
Hon. Ben Ray Lujan........................................... 307
Hon. John Hickenlooper....................................... 308
Hon. Raphael Warnock......................................... 308
Hon. Peter Welch............................................. 309
Hon. Ted Cruz................................................ 310
Hon. John Thune.............................................. 310
Hon. Jerry Moran............................................. 310
Hon. Cynthia Lummis.......................................... 312
Response to written questions submitted to Melissa Holyoak by:
Hon. Maria Cantwell.......................................... 312
Hon. Tammy Duckworth......................................... 314
Hon. Kyrsten Sinema.......................................... 315
Hon. Ben Ray Lujan........................................... 316
Hon. John Hickenlooper....................................... 316
Hon. Raphael Warnock......................................... 316
Hon. Peter Welch............................................. 317
Hon. Ted Cruz................................................ 318
Hon. John Thune.............................................. 318
Hon. Jerry Moran............................................. 318
Hon. Cynthia Lummis.......................................... 320
Response to written questions submitted to Douglas Dziak by:
Hon. Maria Cantwell.......................................... 320
Hon. Tammy Duckworth......................................... 321
Hon. Ben Ray Lujan........................................... 321
Hon. John Hickenlooper....................................... 321
Hon. Ted Cruz................................................ 322
Hon. John Thune.............................................. 322
Hon. Jerry Moran............................................. 322

NOMINATION TO THE FEDERAL TRADE
COMMISSION AND THE CONSUMER
PRODUCT SAFETY COMMISSION

----------

WEDNESDAY, SEPTEMBER 20, 2023

U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
room SR-253, Russell Senate Office Building, Hon. Maria
Cantwell, Chairwoman of the Committee, presiding.
Present: Senators Cantwell [presiding], Klobuchar, Markey,
Peters, Baldwin, Tester, Sinema, Rosen, Hickenlooper, Welch,
Cruz, McConnell, Thune, Wicker, Fischer, Moran, Sullivan,
Blackburn, Young, Schmitt, Vance, Capito, and Lee.

OPENING STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON

The Chair. [Technical problems]--having a nomination
hearing on the nomination of the Honorable Rebecca K. Slaughter
of Maryland to be Commissioner of the Federal Trade Commission,
the nomination of Andrew N. Ferguson of Virginia to be the
Commissioner for the Federal Trade Commission, and the
nomination of Melissa Holyoak of Utah to be Commissioner of the
Federal Trade Commission, and nomination of Mr. Douglas Dziak
of Virginia to be a Commissioner of the Federal Consumer
Product Safety Commission.
So, we have a very busy agenda here to ask these
individuals about their nominations, their ideas, and how to
enforce very important laws in these various oversight agencies
for us. We will start with opening statements, and I am going
to let my colleague this morning go to an opening statement.

STATEMENT OF HON. TED CRUZ,
U.S. SENATOR FROM TEXAS

Senator Cruz. Thank you, Madam Chair. I want to
congratulate each of the nominees here today. Congress has
charged the Federal Trade Commission and the Consumer Product
Safety Commission with important responsibilities.
I am pleased that this committee is working to fill the
current vacancies and to bring each agency up to its full
capacity. The FTC is tasked with protecting American consumers
from unfair or deceptive business practices, and unfair methods
of competition.
I look forward from hearing from Melissa Holyoak, Andrew
Ferguson, and Commissioner Rebecca Slaughter about their
qualifications and their vision for the FTC, as well as the
current challenges that are facing the agency. CPSC's mandate
is to protect consumers from dangerous products.
I look forward to hearing from Doug Dziak today on the
considerable expertise he will bring to the CPSC to help
fulfill its mission. I previously worked at the FTC as the
Director of the Office of Policy Planning, where I helped
develop the long term strategy and policy goals for the agency.
My experience gave me great respect for the talented staff
at the FTC, who often find themselves at the intersection of
technology, consumer protection, and competition. They have the
difficult task of considering how to protect American consumers
as markets evolve and new technologies emerge.
When I was at the FTC, I witnessed Commissioners of diverse
views collegially working together to address new challenges
while remaining within the agency's statutory powers. That
bipartisan camaraderie was a defining characteristic of the FTC
for many decades, and one of the reasons why the agency was
often successful. But today's FTC is sadly unrecognizable from
the FTC that I knew.
Over the past two years, Chairwoman Lisa Khan has taken the
FTC wildly off course and pursued a blatantly partisan agenda
far outside the agency's legal authority and mission.
In just the last year alone, the FTC has weaponized its
enforcement authority against the Biden Administration's
political opponents by pursuing inappropriate and burdensome
demands against Twitter, pursued unlawful efforts to regulate
entire swaths of the U.S. economy under an unprecedented
competition rulemaking, unlawfully deleted documents hindering
Congressional investigations and potential litigation, as well
as undermining transparency in Government, conspired with EU
regulators to impose foreign laws on American tech employees so
that they would be less competitive globally, sought
unauthorized regulation of artificial intelligence in a manner
that infringes on Constitutionally protected speech and can be
expected to chill entrepreneurship, proposed broad data privacy
and security rules without Congressional authorization, and has
sought to impose expensive and expansive, pre-merger
notification requirements that would levy a de facto tax on
market activity.
These are but a few of the FTC's alarming decisions, many
of which occurred without input from a single Republican FTC
Commissioner after the stunning resignation of former
Commissioner Christine Wilson.
In announcing her departure, Wilson said that she did not
want to give Khan's endeavor ``any further hint of legitimacy
by remaining.''
I have known Commissioner Wilson for over 20 years. We
served together at the FTC. She is a woman of high talent and
integrity. I am deeply concerned by Commissioner Wilson's
observation about what has become of the FTC. But you do not
need to take my word for it or Commissioner Wilson's word for
it.
The data show that the FTC staff is depleted and
demoralized. According to the most recent OPM Federal Employee
Viewpoint Survey, less than half of the FTC employees agree
that FTC ``leaders maintain high standards of honesty and
integrity.''
That depressing statistic reflects a 38 point drop since
the start of Chairwoman Khan's term. In just two years, she has
caused a 38 point drop in her employees' assessment of whether
the leaders at the FTC ``maintain high standards of honesty and
integrity.'' That should concern every member of this committee
on both sides of the aisle.
To me, it is not surprising that staff morale has dropped
during a time of agency overreach. It is a tangible reminder
that the FTC is on the wrong track. We must reverse the damage
done to the FTC so that it can fulfill its bipartisan mission
within the framework provided by Congress.
I look forward to hearing from each of our witnesses here
today, learning about their qualifications and better
understanding what they hope to bring to their respective
agencies. Thank you.
The Chair. Thank you, Senator Cruz. We are joined by two
distinguished members, our leader, Republican leader, Senator
McConnell, who will introduce Mr. Ferguson in just a minute,
and our former colleague, Senator--from this committee, Senator
Lee, who is going to introduce Ms. Holyoak from Utah.
I am going to put a statement in the record for my support
for the renomination of Commissioner Slaughter, unless there is
objection.
[The prepared statement of Senator Cantwell follows:]

Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
Today, the Commerce Committee is having a nomination hearing on the
nominations of Honorable Rebecca K. Slaughter of Maryland to be a
Commissioner of the Federal Trade Commission, the nomination of Andrew
N. Ferguson of Virginia to be a Commissioner of the Federal Trade
Commission, the nomination Melissa Holyoak of Utah to be a Commissioner
of the Federal Trade Commission, and Douglas Dziak of Virginia to be a
Commissioner on the Consumer Product Safety Commission. We have a very
busy agenda here to ask these individuals about their nominations,
their ideas, and how to enforce very important laws in these various
oversight agencies for us.
. . .
We're joined by two distinguished members, Republican Leader
Senator McConnell who will introduce Mr. Ferguson in just a minute, and
our former colleague, Senator Lee, who is going to introduce Ms.
Holyoak from Utah. I'm going to put a statement in the record for
[Leader Senator Schumer's] support for the renomination of Commissioner
Slaughter, unless there is objection.
Commissioner Slaughter was sworn in for her current term [to the
FTC] in 2018. We welcome her back for this nomination.
Mr. Ferguson and Ms. Holyoak serve as Solicitors General of the
Commonwealth of Virginia and the State of Utah, respectively. We
welcome both of them to the committee and I will be asking them about
their respective views that they have used in their states and what the
mission critical aspects of the FTC are and what they think it should
be for the future.
That mission, of course, is to protect consumers from deceptive,
unfair and anticompetitive business practices. The FTC's role has never
mattered more.
In 2022, American consumers reported losing over $8.8 billion to
fraud, a 30 percent increase over 2021--a number likely to increase as
bad actors exploit the ability to try to turbocharge fraud.
Corporate consolidation and market manipulation has led to
increased prices and supply chain issues in products ranging from
gasoline to prescription drug prices, two issues that this committee
has dealt with.
And companies have continued to collect troves of sensitive data on
consumers without their consent. These practices, I believe, need some
attention from this Committee.
Petroleum market transparency continues to be a major drag on
families' budget, at least on the West Coast. In my state, my
constituents are paying more than $5 a gallon for gasoline right now.
We have an isolated market, but still even that doesn't call for $5.
Many Washingtonians are shelling out more to fill up their cars than in
the past.
Last year, the Committee received expert testimony highlighting
petroleum market anomalies that have likely driven up billions of
dollars on the West Coast.
The legislation that I authored and enacted in 2017 makes oil
market manipulation a crime. And I look forward to asking our nominees
about this.
The FTC is investigating fraudulent practices resulting from
artificial intelligence, conducting 6(b) studies to learn more about
black-box markets, like PBMs, and challenging mergers across industries
that will result in anticompetitive effects, and exercising rulemaking
authority to examine commercial data surveillance practices.
I look forward to hearing from our nominees on their commitment to
supporting robust enforcement efforts.
I hope that Congress can work together to restore the FTC's ability
to seek consumer refunds.
And we must pass a comprehensive privacy law to empower the FTC to
safeguard American's privacy and personal information.
My Republican colleagues are likely to paint a different picture of
the FTC today, but here is the reality: the FTC is a Federal agency
using the powers that we, as Congress, granted it, all with the aim of
protecting consumers, workers, small businesses, and our free and fair
markets. I welcome our nominees and look forward to their testimony.
And I look forward to our nominee for the Consumer Product Safety
Commission because it is an all-too-important mission that we need to
protect Americans from risks posed by products they buy. And the
mission is particularly important to protect the most vulnerable among
us.
______

Prepared Statement of Hon. Chuck Schumer, U.S. Senator from New York
Thank you, Chair Cantwell, Ranking Member Cruz, and members of the
Committee. It's my privilege to introduce Rebecca Kelly Slaughter for
her nomination to serve a second term as a Commissioner of the Federal
Trade Commission.
I'm sorry I couldn't be there today, but I didn't want to miss the
chance to sing Rebecca's praises on the record before the Committee.
As many of you are aware, Rebecca served on my staff for nearly ten
years, first as a summer intern during law school, then as Counsel, and
eventually as Chief Counsel. In that time, she demonstrated her sheer
intellect and ability to puzzle out real solutions to real problems--
from robocalls, to patent trolls, to consumer protection--that
Americans faced every day. But what struck me most about Rebecca was
her ability to find a balance to complex subjects, bringing Senators
and stakeholders together to reach compromise.
I'm proud to know that Rebecca carried the same qualities she had
working here in the Senate while serving at the FTC for the last five
years. During her time on the Commission, Rebecca has been a staunch
advocate for consumers--especially those in underrepresented and
marginalized communities--and a vocal critic of unfair and deceptive
practices. She has consistently found ways to build consensus on wide-
ranging issues, and has been a strong proponent of greater resources,
more transparency, and an expansion of the Commission's rulemaking
authorities to better serve all Americans.
Rebecca's stellar work over the five years has more than proven
that she belongs on the FTC, and I am proud to once again offer her my
highest recommendation.
I thank Chair Cantwell, Ranking Member Cruz, and Members of the
Committee for accommodating me, and for considering Rebecca Kelly
Slaughter to continue serving on the FTC.

The Chair. Commissioner Slaughter was sworn in her current
term in 2018, and we welcome her back for this nomination.
Mr. Ferguson and Ms. Holyoak serve as Solicitor General of
the Commonwealth of Virginia and the State of Utah,
respectively, and we welcome both of them to the Committee, and
we will be asking them about their respective views that they
have used in their States, and what the mission critical
aspects of the FTC is, and what they think it should be for the
future.
That mission, of course, is to protect consumers from
deceptive and unfair and anti-competitive business practices.
The FTC's role has never mattered more, and in 2022, American
consumers reported losing $8.8 billion to fraud, a 30 percent
increase over 2021, a number likely to increase as bad actors
continue to exploit the ability to try to turbocharge fraud.
Corporate consolidation, market manipulation has led to
increases in pricing, supply chain issues, products ranging
from gasoline to prescription drug prices, two issues this
committee has dealt with, and companies have continued to
collect troves of sensitive data on consumers without their
consent.
These practices, I believe, need some attention from this
committee. Petroleum market transparency continues to be a
major drag on family budgets, at least on the West Coast. In my
state, my constituents are paying more than $5 a gallon for
gasoline right now. We have an isolated market, but still, even
that doesn't include for $5.
Many Washingtonians are shelling out more to fill up their
cars than in the past. Last year, the Committee received expert
testimony highlighting petroleum market anomalies that have
likely driven up billions of dollars on the West Coast. The
legislation I authored and enacted in 2017 makes oil market
manipulation a crime, and I look forward to asking our nominees
about this.
The FTC is investigating fraudulent practices resulting
from artificial intelligence, conducting 6(b) studies to learn
more about black box markets like PBMs, and challenging mergers
across industries that will result in anti-competitive
activities, and exercising rulemaking to examine commercial
data and surveillance practices.
So, I look forward to hearing from the nominees on their
commitment to supporting robust enforcement efforts. I hope
that Congress can work together to restore the FTC's ability to
seek consumer refunds. We must pass a comprehensive privacy law
to empower the FTC to guard--safeguard America's privacy and
personal information.
And I will look forward to our nominee for the Consumer
Product Safety Commission, because it is an all too important
mission that we need to protect Americans from the risk posed
by products that they buy, and the mission is particularly
important to protect the most vulnerable among us.
So, we have a very busy agenda here this morning, and now I
will turn it to my colleague, the--Leader McConnell, for his
basically, statement, yes.

STATEMENT OF HON. MITCH McCONNELL,
U.S. SENATOR FROM KENTUCKY

Senator McConnell. [Technical problems]--it is a pleasure
to be here this morning to make some comments about a couple of
outstanding nominees. But first, I would like to welcome back
Doug Dziak back to the Senate.
Right up until Doug took on his current responsibilities at
the Consumer Product Safety Commission, he was a seasoned and
familiar Senate legislative expert. You served our late friend
and former colleague Mike Enzi with distinction, and I am
confident he will bring the same sense of service to his role
as Commissioner.
I also want to welcome Melissa Holyoak, the first of two
nominees to the Federal Trade Commission. In my judgment,
Melissa is a standout candidate for her next job, for the same
reason she excels right now in her service to the people of
Utah, a razor sharp legal mind, probing intellectual curiosity,
staggeringly broad professional experience.
Melissa is prepared to make immediate contributions as the
FTC takes on a host of consequential regulatory questions.
Finally, I am particularly proud to commend to our colleagues
the nomination of my friend and former senior adviser Andrew
Ferguson.
It is good to see Andrew back in the Senate, and I am glad
to welcome his parents, Roy and Susan Ferguson, who are with us
today as well. Andrew served as my Chief Counsel for just over
2 years and in the Senate for 3 years.
With the relatively brief time, I had the privilege of
drawing on Andrew's intellect and instincts turned out to be
one of the most consequential periods of both our careers. As I
said when Andrew left in 2021, the outsized impact he left was
a result of the intense and infectious enthusiasm he cannot
help but bring to everything he does.
When Andrew takes on a challenge, he goes all in. For
example, he didn't just work his way up to a top tier law
degree, he earned clerkships at each of the Nation's two
highest courts. And he didn't settle for understanding the
highest reaches of the Federal Judiciary from the inside, he
lent a big brain to this body and helped us exercise our
crucial role in the confirmation process.
But the intensity of Andrew's focus and the depth of his
principles don't stop there. Covering a massive policy
portfolio on my staff, we devoured a tall and rotating stack of
library books as he relentlessly sharpened his expertise on a
whole laundry list of controversial issues. And several stints
in private practice meant covering up the niche legal expertise
that Andrew now deploys with precision as the top legal
advocate in the Commonwealth of Virginia.
Through it all, Andrew's intense enthusiasm has been his
calling card. I have observed before that one of the most
familiar sounds in my office was Andrew's voice from multiple
rooms away, presenting a spirited argument to his colleagues.
Sometimes it was a vehement dissent, sometimes a vigorous
concurrence, but every time it was a master class in principled
persuasion.
Any number of worthy causes would be well-served by a
zealous advocate like Andrew Ferguson. But at a pivotal point
for our economy with open questions about the future of free
enterprise, technology, and privacy, the FTC would be
especially fortunate to draw on Andrew's extensive experience
in antitrust, consumer protection, and appellate litigation,
his devotion to our Nation's founding principles, and the
boundless, boundless enthusiasm that continues to drive it all.
Thank you.
The Chair. Leader McConnell, thank you so much for being
here. I am sure it means a lot to all the nominees to have your
presence and comments.
Again, thank you for being here, and we understand you have
a busy schedule. So, we will turn now to our former colleague
from the Committee, Senator Mike Lee.

STATEMENT OF HON. MIKE LEE,
U.S. SENATOR FROM UTAH

Senator Lee. Thanks so much, Chair Cantwell, and Ranking
Member Cruz, and members of the Committee.
It is great to be back in this room. Would love to join you
again the next time I get the chance. It is my great honor and
pleasure today to be here to introduce my friend, Melissa
Holyoak, to the Commerce Committee, and to offer my full
support for her nomination and confirmation to be a
Commissioner on the Federal Trade Commission.
I also want to welcome Melissa's husband, Josh, and their
children, Lucy, Jane, Henry, and Margot, who are here to
support her today. Fortunately, Margot, their youngest child,
has offered to answer any questions that might escape her mom's
ability to answer, which I am sure that won't happen, but
Margot is ready just in case.
Melissa is from my home state of Utah, and I have known
Melissa for about 20 years. I first met her in church and
social circles, and more recently I have worked with her a lot
in her current capacity, serving my constituents in Utah.
Melissa is an exceptionally talented lawyer who is
committed to Constitutionally limited Government, and I want to
highlight a few of her accomplishments and her attributes that
I think make her an exceptional and really, really unusually
well-qualified candidate to be an FTC Commissioner.
She has been an outstanding Solicitor General in the Utah
Attorney General's Office since September 2020. She oversees
civil and criminal appeals, Constitutional defense, special
litigation, and antitrust divisions for the Attorney General's
Office. During her tenure as Utah's Solicitor General, Melissa
has led and authored an amicus brief that 34 other states
joined in support of Epic Games lawsuit against Apple for anti-
competitive and antitrust conduct relating to Apple's iOS App
Store, which negatively affected millions of American
consumers.
In a similar stride for fair competition, she assisted the
Utah Attorney General in filing a lawsuit, joined by 36
Attorneys General, against Google for its measures to restrict
competition in the Google Play Store for Android users.
Melissa is a gifted public speaker, and she has given
numerous speeches and panel presentations in connection with
her role as Solicitor General, many of which are relevant to
topics that she may end up covering.
She is an entrepreneur, having co-founded the Hamilton
Lincoln Law Institute in order to challenge administrative and
regulatory actions, and abuses of the class action and civil
justice system, and challenge restrictions on free speech. Her
litigation experience will itself be an invaluable asset at the
FTC, which currently lacks Commissioners with a similar
background.
Her ability to assess facts and the law quickly and
immediately discern the difference between a kerfuffle and a
Federal case will prove to be instrumental in her work on the
Commission. She will be instrumental to the FTC's
responsibility of enforcing consumer protection and antitrust
laws and will draw on her vast breadth of experience when
casting her vote on whether or not to pursue a complaint.
It has been nearly 6 months since the FTC has had a
Republican Commissioner. It is my hope that Melissa will help
restore the Commission to its Congressionally imposed limits
and improve transparency and accountability, first and
foremost, to follow the law, something Melissa is exceptionally
good at doing.
Melissa's ability to interact with other people, her
magnetic personality, her enthusiasm for the law and for
getting to the right answer, along with a keen recognition of
the fact that the law does provide a right answer most of the
time, these are all things that will benefit her and will cause
her colleagues on the Commission to enjoy working alongside
her.
Her commitment to public service is truly commendable, and
I have every confidence that she will be a successful
Commissioner at the FTC. I am so proud to be here to support
her nomination.
While I am here, I will also note in closing, I am a big
fan of Andrew Ferguson's. I got to know him while he was
working for Leader McConnell, and I found his advice, his
insight on legal and Constitutional matters to be incisive,
well-reasoned, and almost always right. I can't think of a time
when I disagreed with him and echo the leader's support for him
as well.
Thank you very much.
The Chair. Thank you, Senator Lee. And again, thanks for
joining us this morning. So now we will make a transition,
announce the nominees to come before us, and take your seat at
the witness table. We will ask each of you to make a 5-minute
statement about your desire for this post, and then following
those statements, we will get to questions from members.
Even though some of your families have been introduced,
feel free to introduce them again. But again, welcome to
everybody that is here this morning. We will start with you,
Ms. Slaughter, and go down the line from there.

STATEMENT OF REBECCA K. SLAUGHTER, NOMINEE TO BE A
COMMISSIONER, FEDERAL TRADE COMMISSION

Ms. Slaughter. Thank you so much, Chair Cantwell, Ranking
Member Cruz, and members of this committee. It is an incredible
honor to return to this committee as you consider my
nomination, as well as those of my fellow nominees.
I would like to begin by acknowledging my family. I am
joined today by my son, Teddy, who is 11. My daughter Ellie,
who is nine. My daughter Pippa, who is five.
And I will note at my first confirmation hearing, Pippa was
only 9 days old, and she is now a proud kindergartner and proud
big sister to my youngest child, Harriet, who is three and is
sitting right--no, has already exited the room.
[Laughter.]
Ms. Slaughter. She lasted longer than I expected, so I am
grateful to them for their patience and for being here. And I
am boundlessly grateful to my husband, Justin, for his
partnership, love, and support.
I also want to acknowledge my parents who traveled here
from New York City, as well as the many staff of the FTC who
are here in the room, and many other friends and family online
and in person who mean so much to me. And in particular, I want
to recognize my colleagues, Commissioner Bedoya and Chair Khan,
who are here.
When I last sat before you as a nominee, the Senate had
been my professional home for a decade. I could not imagine
that I could find another job as fulfilling and challenging as
the work I was privileged to do for this great body, but the
last 5 years I have spent at the FTC have exceeded all my
expectations.
The FTC is made up of dedicated, brilliant, professional
staff who are deeply committed to our mission and from whom I
learn every day. The work we do is not easy. Markets are
complicated, resources are limited, and we are often forced to
make very difficult decisions, but it is incredibly rewarding.
We wake up every day dedicated to carrying out Congress's
directive to protect consumers and promote competition, and I
appreciate that these are more than abstract concepts.
At the heart of our work are the real Americans who bear
the brunt of unfair and deceptive acts and practices, and
unfair methods of competition, that make it harder to put food
on the table, to pay for health care, to build a business, and
to navigate the digital world.
So, when we succeed at stopping and deterring illegal
conduct, we are taking meaningful steps to helping those
Americans participate freely, fully, and fairly in the economy.
And that, in turn, makes our markets stronger.
When honest businesses compete to provide better products
and services at better prices, America wins. One of the best
parts about working at the FTC is the opportunity to engage
with people who have a wide variety of perspectives and
expertise, including the staff, academics, advocates,
attorneys, economists, and, of course, my fellow Commissioners.
I believe the work of the Commission is at its best when it
is the product of robust exchange of ideas and viewpoints, so I
am particularly glad to be sitting here today with nominees for
the two Republican seats on the Commission.
I have sorely missed my colleagues, former Commissioners
Noah Phillips and Christine Wilson, and I look forward to the
opportunity to get to know and work with Melissa and Andrew. We
will not always agree, but I am committed to always engaging
with them and seeking out common ground wherever it is
available.
Thank you again for your consideration, and I look forward
to your questions.
[The prepared statement and biographical information of Ms.
Slaughter follow:]

Prepared Statement of Rebecca Kelly Slaughter, Nominee to be a
Commissioner, Federal Trade Commission
Thank you Chair Cantwell, Ranking Member Cruz, and members of the
Committee. It is an incredible honor to return to this committee as you
consider my nomination as well as those of my fellow nominees.
I would like to begin by acknowledging and thanking my family. I'm
joined today by my son, Teddy, who is 11, my daughter Ellie, who is 9,
and my daughter Pippa, who is 5. And I will note--at my first
nomination hearing, Pippa was only nine days old. She is now a proud
kindergartener, and proud big sister to my youngest child, Harriet, who
is 3, and sitting right near her. And I am boundlessly graceful to my
husband Justin for his partnership, love, and support. I also want to
acknowledge my parents and brother, who traveled here from New York
City, as well as the many other friends and family online and in person
whose support means so much to me.
When I last sat before you as a nominee, the Senate had been my
professional home for a decade. I could not imagine that I could find
another job as fulfilling and challenging as the work I was privileged
to do for this great body. But the last five years I've spent at the
FTC have exceeded all my expectations. The FTC is made up of dedicated,
brilliant, professional staff who are deeply committed to our mission
and from whom I learn every day. The work we do is not easy--markets
are complicated, resources are limited, and we are often forced to make
very difficult decisions--but it is incredibly rewarding. We wake up
every day dedicated to carrying out Congress's directive to protect
consumers and promote competition, and I appreciate that these are more
than abstract concepts. At the heart of our work are the real Americans
who bear the brunt of unfair and deceptive acts and practices, and
unfair methods of competition, that make it harder to put food on the
table, to pay for healthcare, to build a business, and to navigate the
digital world.
So when we succeed at stopping and deterring illegal conduct, we
are taking meaningful steps to helping those Americans participate
freely, fully, and fairly in the economy. And that, in turn, makes our
markets stronger--when honest businesses compete to provide better
products and services at better prices, America wins.
One of the best parts about working at the FTC is the opportunity
to engage with people who have a wide variety of perspectives and
expertise, including the staff, academics, advocates, attorneys,
economists, and of course my fellow Commissioners. I believe the work
of the Commission is at its best when it is the product of a robust
exchange of ideas and viewpoints. So I am particularly glad to be
sitting here today with nominees for the two Republican seats on the
Commission. I have sorely missed my colleagues, former Commissioners
Noah Phillips and Christine Wilson, and look forward to the opportunity
to get to know and work with Solicitors General Holyoak and Ferguson.
We will not always agree, but I am committed to always engaging with
them and seeking out common ground wherever it is available, Thank you
again for your consideration, and I look forward to your questions.
______

a. biographical information
1. Name (Include any former names or nicknames used):

Rebecca Joy Kelly Slaughter (formerly Rebecca Joy Kelly;
nickname Becca)

2. Position to which nominated: Commissioner, Federal Trade
Commission.
3. Date of Nomination: February 13, 2023.
4. Address (List current place of residence and office addresses):

Residence: Information not released to the public.
Office: Federal Trade Commission, 600 Pennsylvania Ave. NW,
Washington DC 20580.

5. Date and Place of Birth: August 6, 1981; (New York, NY).
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).

Spouse: Justin Slaughter, Policy Director, Paradigm

7. List all college and graduate schools attended, whether or not
you were granted a degree by the institution. Provide the name of the
institution, the dates attended, the degree received, and the date of
the degree.

Yale College, 1999-2003, B.A., 2003
Yale Law School, 2004-2008, J.D., 2008

8. List all post-undergraduate employment, including the job title,
name of employer, and inclusive dates of employment, and highlight all
management-level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.

Federal Trade Commission (2018 to present).
I have served as a Commissioner on the Federal Trade Commission
since May 2018. I served as the Acting Chair of the agency from
January to June 2021.

Office of Senator Charles Schumer, Democratic Leader (2009-
2018, 2005- 2006).
I served several roles in Senator Schumer's office, starting as
a law clerk and then Professional Staff Member (2005-2006),
then returning as a counsel (2009-2011), then becoming Senior
Counsel (2011-2014) and finally Chief Counsel (2014-2018). In
that capacity, I managed a policy portfolio focusing on legal,
technology, and regulatory policy in the areas of FTC
jurisdiction, including antitrust, consumer protection, privacy
and technology. As Chief Counsel, I also managed our small team
of attorneys handling areas within the jurisdiction of the
Judiciary Committee.

Sidley Austin, Associate (2008-2009), Summer Associate (2007).

Davis Polk & Wardwell, Summer Associate (2006).

Manhattan District Attorney's Office, Appeals Bureau Paralegal
(2003- 2004).

9. Attach a copy of your resume.
Attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above after 18 years of age. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution. None.
12. Please list each membership you have had after 18 years of age
or currently hold with any civic, social, charitable, educational,
political, professional, fraternal, benevolent or religiously
affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.

Carderock Springs Swim and Tennis Club--Member, Summer 2017
to present.

Senate Employees Child Care Center (SECCC)--Member, 2011-
2018.

NY State Bar Association--Member, 2010-2011; currently
inactive.

Yale Law Journal--Board Member (The Pocket Part Committee),
2007- 2008.

The Andrew Morehouse Trust--Regular Member, 2004 to present;
Board member 2004-2016.

None of these groups restrict membership on the basis of sex, race,
color, religion, national origin, age, or handicap.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities. None.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $200 or more for the past ten years.

Josh Riley for Congress ($250, 6/10/22)

Ossoff-Warnock Victory Fund ($500, 12/16/20)

16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.
George A. Schrader, Jr. Prize for Excellence in the Humanities,
2003 Association of Yale Alumni Community Service Summer Fellowship,
2000
17. List each book, article, column, letter to the editor, Internet
blog posting, or other publication you have authored, individually or
with others. Include a link to each publication when possible. If a
link is not available, provide a digital copy of the publication when
available.

Slaughter, Rebecca, with Janice Kopec and Mohamad Batal,
Algorithms and Economic Justice: A Taxonomy of Harms and a Path
Forward for the Federal Trade Commission, Yale Journal of Law
and Technology, 2021.

Slaughter, Rebecca, Op-Ed: You Should Have the Right to Sue
Apple, New York Times, December 12, 2018.

Slaughter, Rebecca, I got my dream job and had my baby the
same week. So I brought my baby to work, Vox Media, November
13, 2018.

Kelly, Rebecca, Note: Defensive Shootings and Error Risk: A
Collateral Cost of Changing Gun Laws, Yale Law & Policy Review,
2008.

18. List all speeches, panel discussions, and presentations (e.g.,
PowerPoint) that you have given on topics relevant to the position for
which you have been nominated. Include a link to each publication when
possible. If a link is not available, provide a digital copy of the
speech or presentation when available.

Competition Law Enforcement Issues Raised by Monopsonies,
United Nations Conference on Trade and Development, July 5,
2023.

Taking on Big Tech: Using All the Tools in the Consumer
Protection Toolbox, United Nations Conference on Trade and
Development, July 4, 2023.

Enforcement Priorities Around the World: From Children
Privacy, to AdTech, Japan Privacy Symposium, June 22, 2023.

The FTC, Consumers, and Technology, 19th Represents Summit,
May 18, 2023.

Keynote Fireside Chat, Privacy + Security Forum, May 12,
2023.

Hot Topics Panel, ABA Antitrust Law Spring Meeting, March
30, 2023.

Fireside Chat, George Mason Law Review Antitrust Symposium,
February 24, 2023.

Algorithms and Economic Justice: A Taxonomy of Harms and a
Path Forward for the FTC, Privacy Papers for Policymakers
Forum, February 16, 2023.

Quick Hits: Algorithmic Biases and Economic Harms, Antitrust
Women. Connected Gender Competition Roundtable, January 26,
2023.

Conversation with a Commissioner, CES 2023, January 7, 2023.

Fireside Chat: A Manifesto on Enforcing Law in the Age of
AI, Athens Roundtable on AI and the Rule of Law, December 1,
2022.

Big Tech, Little Tech, and Small Business: Re-Thinking the
Tech Ecosystem, Politico AI and Tech Summit, September 29,
2022.

Keynote Remarks, Resourcing a New Paradigm: The Future of
Antimonopoly Research, July 19, 2022.

Keynote Remarks, FTC/DOJ Pharmaceutical Task Force Workshop,
June 14, 2022.

Protecting Privacy Online Through Antitrust Regulation,
Access Now RightsCon, June 9, 2022.

Manipulative Design Practices: Online Policy Solutions for
the EU and the U.S., Computers, Privacy and Data Protection
Conference, May 23, 2022.

Remarks, Common Ground Conference: Working Together to
Protect Colorado Consumers, May 6, 2022.

A Rethink of the U.S. Merger Guidelines, ABA Antitrust Law
Spring Meeting, April 7, 2022.

Storming the Concentration Castle: Antitrust Lessons from
the Princess Bride, Greg Lastowka Memorial Lecture at Rutgers
Law School, March 31, 2022.

Fireside Chat, Privacy + Security Forum Spring Academy,
March 24, 2022.

Remarks of Commissioner Rebecca Kelly Slaughter, NTIA
Listening Session on Privacy, Equity, and Civil Rights,
December 14, 2021.

SEPs, Antitrust, and the FTC, ANSI World Standards Week:
Intellectual Property Rights Policy Advisory Group Meeting,
October 29, 2021.

Wait But Why? Rethinking Assumptions About Surveillance
Advertising, IAPP Privacy Security Risk Closing Keynote,
October 22, 2021.

Disputing the Dogmas of Surveillance Advertising, National
Advertising Division Conference, October 1, 2021.

Opening Remarks, PrivacyCon 2021, July 27, 2021.

An Evening with FTC Commissioner Rebecca Slaughter, Kroll
Settlement Administration, July 14, 2021.

Panel Discussion, Florence Competition Summer Conference:
Effective Remedies Vis-a-Vis Digital Platforms, June 24, 2021.

What's the Progress on Integrating Antitrust & Privacy?,
CEPR Privacy & Antitrust: ``Integration'', Not Just
``Intersection,'' June 17, 2021.

Welcome to the Consumer Marketplace of the Future, OECD
International Consumer Conference: The Consumer Marketplace of
the Future, June 15, 2021.

The Perspective from Heads of Competition Agencies, Canadian
Competition Bureau: Competition and Growth Summit, June 3,
2021.

Discussion with Federal Consumer Protection Partners,
National Association of Attorneys General Consumer Protection
Spring Virtual Conference, May 11, 2021.

Keynote Remarks, Consumer Federation of America's Virtual
Consumer Assembly, May 4, 2021.

Opening Remarks, FTC's ``Bringing Dark Patterns to Light''
Workshop, April 29, 2021.

Centering Anti-Racism in the Anti-Monopoly Fight, Economic
Security Project Panel Discussion, April 7, 2021.

Women's Leadership Fireside Chat, Federal Communications Bar
Association, March 29, 2021.

Vertical is the New Horizontal, American Bar Association
Antitrust Law Section Spring Meeting, March 26, 2021.

Regulate Them or Break Them Up? The Role of Competition
Policy Towards Big Tech, International Conference on
Competition, March 4, 2021.

Keynote Panel on Competition Policy in the Economic
Recovery, OECD Competition Open Day, February 24, 2021.

Protecting Consumer Privacy in a Time of Crisis, Future of
Privacy Forum, February 10, 2021.

Looking Back to Look Forward: What Can 2020 Tell Us About
the Future of Merger Enforcement, Global Competition Review
Antitrust Law Leaders Forum, February 5, 2021.

Does Antitrust Perpetuate Structural Racism?, New York State
Bar Association Antitrust Law Section Symposium, January 25,
2021.

The First 100 Days: Tech Policy in the Biden Administration,
Protocol Panel Discussion, January 19, 2021.

Work-Life Imbalance: Moving Ahead in the Age of COVID, Women
Lawyers on Guard Panel, December 14, 2020.

Antitrust at a Precipice, GCR Interactive: Women in
Antitrust, November 17, 2020.

Antitrust and Privacy in Times of National Emergency, ABA
Fall Forum, November 12, 2020.

Antitrust & the FTC in the Next Administration, Technology
Policy Institute Aspen Forum: Tech Policy, COVID, and the
Election, October 20, 2020.

FTC Data Privacy Enforcement: A Time of Change, NYU School
of Law Program on Corporate Compliance and Enforcement
Cybersecurity and Data Privacy Conference, Program on Corporate
Compliance and Enforcement, NYU School of Law, October 16,
2020.

David E. Nelson Keynote: A View from the Federal Trade
Commission, Berkeley Center for Law & Technology Privacy Law
Forum, October 9, 2020.

Award Presentation, Concurrences Antitrust Writing Awards
Virtual Ceremony, October 5, 2020.

Hot Topics, American Bar Association Antitrust Law Section
Virtual Spring Meeting, April 28, 2020.

The Crystal Ball: Implications for Future Competition Policy
and Practice, Competition and Markets Authority Understanding
Digital Markets: Innovation, Investment and Competition
Conference, March 3, 2020.

Think Big . . . [Tech]! Thoughts About the Path Forward for
Enforcement, GCR Telecoms, Media & Technology Conference, March
2, 2020.

A Chat with FTC Commissioners, Tech Policy Institute
Roundtable, February 5, 2020.

Predictions on Data Privacy and Security: 2020 and Beyond,
New York State Bar Association Intellectual Property Law
Section Annual Meeting, January 28, 2020.

Algorithms and Economic Justice, UCLA School of Law, January
24, 2020.

New Decade, New Resolve to Protect and Promote Competitive
Markets for Workers, FTC Workshop on Non-Compete Clauses in the
Workplace, January 9, 2020.

Chief Privacy Officer Roundtable: What Do Consumers Want?,
CES 2020, January 7, 2020.

Insights with the FCC and FTC, Consumer Technology
Association Policy Forum, January 7, 2020.

Specific Protection for Children Under the GDPR and National
Laws, IAPP Europe Data Protection Congress, November 21, 2019.

Opening Remarks, ABA Section of Antitrust Women's Initiative
Gender and Competition Workshop, November 19, 2019.

Data as an Asset, ABA Antitrust Section Fall Forum Tech
Summit, November 18, 2019.

Luncheon Discussion, 11th Annual Berkeley-Georgetown
Conference on Patent Law & Policy: The Role of the Courts in
Patent Law & Policy, November 15, 2019.

The Role of the Federal Trade Commission in Privacy and
Beyond, Brookings Institution, October 28, 2019.

International Data Protection Law Cooperation: Comparative
Lessons, Privacy + Security Forum, October 15, 2019.

Enabling Responsible and Trusted Data Sharing, International
Institute of Communications Workshop: The Cross-Cutting Issues
of Privacy and (Personal) Data Protection as They Impact on the
TMT Sector, October 11, 2019.

Competition Policy in the Online World: is There a Need to
Adapt to Respond to the Challenges of Digitalisation?,
International Institute of Communications International
Regulators' Forum, October 7, 2019.

Remarks, National Institute for the Defense of Free
Competition and the Protection of Intellectual Property
Peruvian Competition Day, September 18, 2019.

Fireside Chat, The Media Institute Communications Forum,
September 12, 2019.

Keynote Address, Privacy Law Salon Policymaker Roundtable,
September 12, 2019.

Discussion with Commissioner Slaughter, Association of
National Advertisers Government Relations Committee Meeting &
Capitol Hill Day, September 11, 2019.

The Near Future of U.S. Privacy Law, Silicon Flatirons,
University of Colorado Law School, September 6, 2019.

A Chat with Federal Trade Commissioners, Technology Policy
Institute Aspen Forum, August 19, 2019.

DC Summer Program Seminar Speaker, Silicon Flatirons, July
30, 2019.

Healthcare, Labor, and other Hot Consumer and Competition
Topics: Views from an FTC Commissioner and the Washington
Attorney General's Office, Washington State Bar Association,
July 18, 2019.

Standard Essential Patents and Antitrust, The Sedona
Conference's Patent Conference (Part 2): Promoting Invention,
Entrepreneurship, Economic Growth, and Job Creation, June 28,
2019.

Keynote Address, Federal Retirement Thrift Investment Board
Privacy Awareness Day, June 24, 2019.

Should Enforcers Presume that Mergers are Pro-Competitive?
Factoring Unenforceable and Undelivered Efficiency Claims into
Merger Review, American Antitrust Institute's 20th Annual
Policy Conference: Strengthening Antitrust Enforcement, June
20, 2019.

Opening Remarks: That's the Ticket, FTC Workshop on Online
Ticket Sales, June 11, 2019.

Remarks, Consumer Data Industry Association Law & Industry
Conference, June 5, 2019.

Keynote Fireside Chat, Cleveland-Marshall's Cybersecurity
and Privacy Protection Conference, May 30, 2019.

Competition Policy and Regulation: Pressures in a Globalised
Economy, Chatham House Competition Policy 2019 Conference: Need
for a Paradigm Switch, May 23, 2019.

Keynote Remarks, European Data Protection Days Conference,
May 21, 2019.

Antitrust and Health Care Providers: Policies to Promote
Competition and Protect Patients, Center for American Progress,
May 14, 2019.

Privacy and Antitrust: Regulating a Digital Economy,
International Association of Privacy Professionals Global
Privacy Summit, May 3, 2019.

Remarks, Sidley Austin Women in Privacy Luncheon, May 2,
2019.

Fireside Chat, National Retail Federation Spring Privacy
Meeting, May 1, 2019.

Presentation of Distinguished Public Service Award to Helen
Dixon, Future of Privacy Forum 10th Anniversary Celebration,
April 30, 2019.

Merger Retrospective Lessons from Mr. Rogers, FTC Hearings
on Competition and Consumer Protection in the 21st Century:
Merger Retrospectives, April 12, 2019.

Remarks, FTC Hearings on Competition and Consumer Protection
in the 21st Century: the FTC's Approach to Consumer Privacy,
April 10, 2019.

Reshaping Privacy Regulations--Compliance and Consequences,
American Bar Association Antitrust Law Section Spring Meeting,
March 28, 2019.

`The ABA Fringe': Are the Europeans Creating Momentum on
Digital Enforcement?, Charles River Associates, March 27, 2019.

Privacy & Security in the Age of Intelligent Connectivity,
GSMA Ministerial Programme, Mobile World Congress, February 27,
2019.

What Do Consumers Want?, GSMA Ministerial Programme, Mobile
World Congress, February 26, 2019.

Cross-Regulatory Roundtable on the Future of Data Privacy,
GSMA Ministerial Programme, Mobile World Congress, February 25,
2019.

Fireside Chat, State of the Net Conference, January 29,
2019.

Remarks, Communications Law Forum of the Women's Bar
Association of DC Holiday Tea, December 11, 2018.

Remarks, Digital Dialogue Forum Lunches, November 8, 2018.

Closing Remarks, FTC Hearings on Competition and Consumer
Protection in the 21st Century: Innovation and Intellectual
Property, October 24, 2018.

Opening Remarks, COPPA at 20: Protecting Children's Privacy
in the New Digital Era, Georgetown Law School Institute for
Technology Law & Policy, October 24, 2018.

Regulatory Panel, ChIPs Global Summit, October 19, 2018.

The U.S. and EU: Areas of Convergence, Areas of Divergence?,
Privacy + Security Forum, October 5, 2018.

Visions and Goals for the Future of IoT in the USA and
Globally, Forum Global 6th Annual Internet of Things Global
Summit, October 4, 2018.

Closing Keynote, Bill Kovacic Antitrust Salon: Where is
Antitrust Policy Going?, George Washington University Law
School, September 24, 2018.

Remarks, FTC Hearings on Competition and Consumer Protection
in the 21st Century, September 21, 2018.

Privacy's Next Chapter, Privacy Law Salon Policy Roundtable,
September 14, 2018.

The Internet of Bodies, DEFCON Biohacking Village, August
10, 2018.

Raising the Standard: Bringing Security and Transparency to
the Internet of Things?, Open Technology Institute, July 26,
2018.

Prior to joining the FTC, I spoke several times on panels at the
annual ChIPs Women in IP Conference on the topic of emerging issues in
law and technology policy. I also spoke on a panel titled Women in
Politics at the Brearley School's alumnae weekend in May 2017.
19. List all public statements you have made during the past ten
years, including statements in news articles and radio and television
appearances, which are on topics relevant to the position for which you
have been nominated, including dates. Include a link to each statement
when possible. If a link is not available, provide a digital copy of
the statement when available.
Public Statements Made on Federal Trade Commission Matters
Statement Regarding the Health Breach Notification Rule and
the Biometric Policy Statement, FTC Open Commission Meeting,
May 18, 2023.

Policy Statement of the Federal Trade Commission on
Biometric Information and Section 5 of the Federal Trade
Commission Act, FTC Open Commission Meeting, May 18, 2023.

Statement Regarding the Issuance of a Notice of Penalty
Offenses on Substantiation of Product Claims, March 31, 2023
(joined by Chair Lina M. Khan and Commissioner Alvaro M.
Bedoya).

Statement Regarding Amazon.com, Inc's Acquisition of 1Life
Healthcare, Inc., February 27, 2023 (joint with Chair Lina M.
Khan, Commissioner Christine S. Wilson, and Commissioner Alvaro
M. Bedoya).

Statement In the Matter of HSR Premerger Notification,
February 10, 2023 (joined by Chair Lina M. Khan and
Commissioner Alvaro M. Bedoya).

Statement Regarding the Notice of Proposed Rulemaking on
Non-Compete Clauses, January 5, 2023 (joined by Commissioner
Alvaro M. Bedoya).

Statement In the Matter of Linde AG; Praxair, Inc.; and
Linde PLC, November 15, 2022 (joined by Chair Lina M. Khan).

Statement In the Matter of Drizzly, October 21, 2022.

Statement Regarding Advance Notice of Proposed Rulemaking
for Trade Regulation Rule Concerning Reviews and Endorsements,
FTC Open Commission Meeting, October 20, 2022.

Statement Regarding Advance Notice of Proposed Rulemaking
Regarding Funeral Industry Practices Rule, FTC Open Commission
Meeting, October 20, 2022.

Statement Regarding Advance Notice of Proposed Rulemaking
for Unfair or Deceptive Fees, FTC Open Commission Meeting,
October 20, 2022.

Statement Regarding Bureau of Consumer Protection Staff
Report: ``Bringing Dark Patterns to Light,'' FTC Open
Commission Meeting, September 15, 2022.

Statement Regarding FTC Policy Statement on Enforcement
Related to Gig Work, FTC Open Commission Meeting, September 15,
2022.

Statement Regarding Notice of Proposed Rulemaking on
Impersonation of Government and Business, FTC Open Commission
Meeting, September 15, 2022.

Statement at the Commercial Surveillance and Data Security
Public Forum, September 8, 2022.

Statement Regarding the Commercial Surveillance and Data
Security Advance Notice of Proposed Rulemaking, August 11,
2022.

Statement Regarding the Notice of Proposed Rulemaking on a
Motor Vehicle Dealers Trade Regulation Rule, June 23, 2022
(joint with Chair Lina M. Khan, Commissioner Noah Joshua
Phillips, and Commissioner Alvaro M. Bedoya).

Statement Regarding the Commission's Report to Congress:
Combatting Online Harms Through Innovation, FTC Open Commission
Meeting, June 16, 2022.

Statement Regarding the Policy Statement of the Federal
Trade Commission on Rebates and Fees in Exchange for Excluding
Lower-Cost Drug Products, FTC Open Commission Meeting, June 16,
2022.

Statement Regarding the Use of Compulsory Process and
Issuance of 6(b) Orders to Study Contracting Practices of
Pharmacy Benefit Managers, June 7, 2022.

Statement Regarding the Request for Public Comments on the
Amendments to the Endorsement Guides, FTC Open Commission
Meeting, May 19, 2022.
Statement Regarding the Policy Statement on Education
Technology and the Children's Online Privacy Protection Act,
FTC Open Commission Meeting, May 19, 2022.

Statement Regarding Section 13(b) of the FTC Act, FTC Open
Commission Meeting, April 28, 2022.

Concurring Statement Regarding FTC and State of Rhode Island
v. Lifespan Corporation and Care New England Health System,
February 17, 2022 (joint with Chair Lina M. Khan).

Statement Regarding the Advance Notice of Proposed
Rulemaking on the Use of Earnings Claims, FTC Open Commission
Meeting, February 17, 2022.

Concurring Statement Regarding the 2022 Revised Clayton Act
Thresholds, January 24, 2022.

Dissenting Statement Regarding Ascension Data & Analytics,
LLC, December 22, 2021.

Statement Regarding Advance Notice of Proposed Rulemaking on
Government and Business Impersonation Fraud, FTC Open
Commission Meeting, December 16, 2021.

Statement In the Matter of Vision Path, Inc. d/b/a Hubble,
December 8, 2021

Statement Regarding Criminal Referral and Partnership
Process, FTC Open Commission Meeting, November 18, 2021.

Remarks Regarding the FTC Staff Report--A Look at What ISPs
Know About You: Examining the Privacy Practices of Six Major
Internet Service Providers, FTC Open Commission Meeting,
October 21, 2021.

Statement In the Matter of Resident Home LLC, October 8,
2021 (joint with Chair Lina M. Kahan and Commissioner Rohit
Chopra).

Statement Regarding the Report to Congress on Privacy and
Security, October 1, 2021.

Statement Regarding the Withdrawal of the Vertical Merger
Guidelines, FTC Open Commission Meeting, September 15, 2021
(joint with Chair Lina M. Khan and Commissioner Rohit Chopra).

Remarks Regarding the Proposed Recission of the FTC's
Approval of the 2020 Vertical Merger Guidelines, FTC Open
Commission Meeting, September 15, 2021.

Remarks Regarding the Commission's Policy Statement on
Privacy Breaches by Connected Health Apps, FTC Open Commission
Meeting, September 15, 2021.

Remarks Regarding Non-HSR Reported Acquisitions by Select
Technology Platforms, 2010-2019: An FTC Study, FTC Open
Commission Meeting, September 15, 2021.

Concurring Statement In the Matter of Tate's Auto, July 29,
2021.

Statement Regarding the Adoption of Revised Section 18
Rulemaking Procedures, FTC Open Commission Meeting, July 1,
2021 (joined by Chair Lina M. Khan and Commissioner Rohit
Chopra).

Concurring Statement In the Matter of Seven & i Holdings
Co., Ltd./ Marathon Petroleum Corporation, June 25, 2021 (joint
with Commissioner Rohit Chopra).

Statement Regarding the Federal Trade Commission's Report to
Congress on Rebate Walls, May 28, 2021.

Statement Regarding the Closing of the 7-Eleven and Marathon
Transaction, May 14, 2021 (joint with Commissioner Rohit
Chopra).

Concurring Statement Regarding the Revised Clayton Act
Thresholds, February 5, 2021.

Statement In the Matter of Amazon Flex, February 2, 2021
(joint with Commissioner Noah Joshua Phillips).

Dissenting Statement Regarding Final Approval of Settlement
with Zoom Video Communications, Inc., February 1, 2021.

Concurring Statement In the Matters of Just in Time Tickets;
Cartisim Corp.; and Concert Specials, January 22, 2021.

Dissenting Statement Regarding the FTC Staff Comment on the
VA's Interim Final Rule on the Authority of VA Professionals to
Practice Health Care, January 15, 2021.

Statement Concurring in Part, Dissenting in Part, In the
Matter of Flo Health, Inc., January 13, 2021 (joint with
Commissioner Rohit Chopra).

Dissenting Statement Regarding the Vertical Merger
Commentary, December 22, 2020 (joint with Commissioner Rohit
Chopra).

Statement Regarding Social Media and Video Streaming Service
Providers' Privacy Practices, December 14, 2020 (joint with
Commissioner Rohit Chopra and Commissioner Christine S.
Wilson).

Concurring Statement In the Matter of AppFolio, Inc.,
December 8, 2020.

Concurring Statement In the Matter of Midwest Recovery
Systems, November 30, 2020.

Concurring Statement In the Matter of Linde AG, et al.,
November 13, 2020.

Dissenting Statement In the Matter of Zoom Video
Communications, Inc., November 9, 2020.

Statement Regarding the Hart-Scott-Rodino Act Premerger
Notification Rulemaking Notices, September 21, 2020.

Opening Statement, United States Senate Committee on
Commerce, Science, and Transportation Hearing on Oversight of
the Federal Trade Commission, August 5, 2020.

Statement of the Commission In the Matter of Alimentation,
Couche-Tard, and CrossAmerica Partners LP, July 6, 2020.

Dissenting Statement Regarding FTC-DOJ Vertical Merger
Guidelines, June 30, 2020.

Statement Regarding the Contact Lens Rule Review, June 23,
2020.

Statement In the Matter of Liberty Chevrolet, Inc. d/b/a
Bronx Honda, May 27, 2020.

Dissenting Statement In the Matter of AbbVie/Allergan, May
5, 2020.

Dissenting Statement Regarding FTC v. Progressive Leasing,
April 20, 2020.

Dissenting Statement Regarding the FTC Fiscal Year 2021
Budget Request, February 10, 2020.

Concurring Statement Regarding the Request for Comment on
the Funeral Rule, February 4, 2020.

Concurring Statement In the Matter of Shop Tutors, Inc. d/b/
a LendEDU, February 3, 2020.

Concurring Statement Regarding FTC and State of New York v.
Vyera Pharmaceuticals, LLC; Phoenixus AG; Martin Shkreli; and
Kevin Mulleady, January 27, 2020.

Statement Regarding FTC-DOJ Draft Vertical Merger
Guidelines, January 10, 2020.

Statement of the Federal Trade Commission In the Matter of
Holding/Spark Therapeutics, December 16, 2019.

Concurring Statement In the Matter of the University of
Phoenix, Inc., December 10, 2019.

Dissenting Statement In the Matter of Bristol-Myers Squibb
and Celgene, November 15, 2019.

Statement of the Federal Trade Commission Concerning the
Commission's Consent Order In the Matter of Your Therapy
Source, LLC, Neeraj Jindal, and Sheri Yarbray, October 31,
2019.

Statement In the Matter of Your Therapy Source, LLC, Neeraj
Jindal and Sheri Yarbray, October 31, 2019.

Remarks Regarding Retina-X Studios, LLC Press Call, FTC
Press Call, October 22, 2019.

Comment on the CFPB's Proposed Regulation F, September 18,
2019.

Statement In the Matter of DTE Energy/Generation Pipeline,
September 12, 2019 (joint with Commissioner Rohit Chopra).

Dissenting Statement In the Matter of Google LLC and Youtube
LLC, September 4, 2019.

Dissenting Statement In the Matter of FTC v. Facebook, July
24, 2019.

Statement In the Matter of FTC v. Equifax, Inc., July 22,
2019.

Statement Regarding FTC Report on the Use of Section 5 to
Address Off-Patent Pharmaceutical Price-Spikes, June 24, 2019
(joint with Commissioner Rohit Chopra).

Statement In the Matter of UnitedHealth Group and DaVita,
June 19, 2019 (joint with Commissioner Rohit Chopra).

Dissenting Statement Regarding the Matters of Sandpiper/
PiperGear and Patriot Puck, April 17, 2019.

Statement In the Matter of Musically, Inc. (now known as
TikTok), February 27, 2019 (joint with Commissioner Rohit
Chopra).

Dissenting Statement In the Matter of Fresenius Medical
Care/NxStage, February 19, 2019.

Statement In the Matter of Syacmore Partners, Staples, and
Essendant, January 28, 2019.

Concurring Opinion In the Matter of 1-800 Contacts, Inc.,
November 14, 2018.

Statement In the Matter of Uber Technologies, Inc., October
26, 2018.

Concurring Statement In the Matters of Nectar Sleep,
Sandpiper/PiperGear, and Patriot Puck, September 12, 2018
(joined by Chair Joseph J. Simons).

Statement of Federal Trade Commission Concerning FTC v.
Speedway Motorsports, Inc., August 9, 2018.

Dissenting Statement Regarding the Appointment of the
Director of the Bureau of Consumer Protection, May 16, 2018.
Statements Made in Press Releases
Response from FTC Acting Chairwoman Slaughter to Letter from
Chamber of Commerce Regarding Section 13(b) of FTC Act, May 19,
2021.

Statement from FTC Acting Chairwoman Slaughter and
Commissioner Chopra on 7-Eleven/Speedway Merger, May 14, 2021.

Multilateral Pharmaceutical Merger Task Force Seeks Public
Input, May 11, 2021.

FTC Returns Nearly $60 Million to Those Suffering from
Opioid Addiction Who Were Allegedly Overcharged in Suboxone
Film Scheme, May 10, 2021.

FTC Acting Chairwoman Slaughter Announces New Appointments
to Agency Leadership Positions, May 5, 2021.

FTC, CFPB Send Notice Letters to Landlords Regarding
Pandemic Eviction Moratorium, May 3, 2021.

Statement by FTC Acting Chairwoman Rebecca Kelly Slaughter
on the U.S. Supreme Court Ruling in AMG Capital Management LLC
v. FTC, April 22, 2021.

In First Action Under COVID-19 Consumer Protection Act, FTC
Seeks Monetary Penalties for Deceptive Marketing of Purported
Coronavirus Treatments, April 15, 2021.

U.S. Court of Appeals for the Fifth Circuit Upholds FTC's
Opinion against Generic Pharmaceutical Company Impax
Laboratories, LLC, April 13, 2021.

Acting FTC Chairwoman Slaughter Appoints Marta E. Wosinska
as Director of Bureau of Economics, April 13, 2021.

FTC Challenges Illumina's Proposed Acquisition of Cancer
Detection Test Maker Grail, March 30, 2021.

Statement by Acting Chairwoman Rebecca Kelly Slaughter on
Agency's Decision not to Petition Supreme Court for Review of
Qualcomm Case, March 29, 2021.

Joint Statement by FTC Acting Chairwoman Rebecca Kelly
Slaughter and CFPB Acting Director Dave Uejio, March 29, 2021.

Acting FTC Chairwoman Releases 2020 Annual Highlights, March
25, 2021.

FTC Acting Chairwoman Slaughter Announces New Rulemaking
Group, March 25, 2021.

Acting FTC Chairwoman Slaughter Appoints Lindsay Kryzak the
Agency's Public Affairs Director, March 23, 2021.

Statement of Acting FTC Chairwoman Rebecca Kelly Slaughter
on the Nomination of Lina M. Khan, March 22, 2021.

FTC Announces Multilateral Working Group to Build a New
Approach to Pharmaceutical Mergers, March 16, 2021.

Statement by Acting FTC Chairwoman Rebecca Kelly Slaughter
on Enactment of the American Rescue Plan Act, March 12, 2021.

Following Federal Trade Commission Staff Recommendation to
Challenge Transaction, Two Health Care Systems in Central
Georgia Abandon Proposed Merger, March 3, 2021.

FTC Launches Initiative to Encourage Lower-Income
Communities to Report Fraud, March 3, 2021.

FTC Report Cites Benefits of International Cooperation on
Antitrust and Consumer Protection Enforcement, February 16,
2021.

FTC, DOJ Temporarily Suspend Discretionary Practice of Early
Termination, February 4, 2021.

Following Federal Trade Commission Staff Recommendation to
Challenge Transaction, Tronox Holding plc. Abandons Proposed
Acquisition of TiZir Titanium and Iron, January 29, 2021.

FTC Acting Chair Rebecca Kelly Slaughter Announces Interim
Leadership Appointments, January 25, 2021.

FTC Commissioner Rebecca Kelly Slaughter Designated Acting
Chair of the Agency, January 21, 2021.
Statements Made in Interviews
Interview, Key Roger W. Jones Executive Leaders Podcast
Series, December 10, 2021.

In The U.S.A.'S Tech-Driven Economy, Is Enough Being Done to
Protect Consumer Choice and Privacy?, Brookings TechTank
Podcast, November 15, 2021.

Interview, Global Competition Review, September 24, 2021.

Facing Off with Facebook (with Rebecca Kelly Slaughter),
Stay Tuned with Preet, August 26, 2021.

Stay Tuned Bonus, The CAFE Insider Podcast, August 26, 2021.

`Don't lie': FTC Commissioner Rebecca Slaughter on Why
Today's Data Privacy Approaches Don't Work, Digiday, July 7,
2021.

FTC Chairwoman Discusses Consumer Privacy in the Digital
Economy, Wall Street Journal, June 2, 2021.

CPI Talks . . . with Rebecca Kelly Slaughter, Competition
Policy International, April 20, 2021.

Yahoo Finance Presents: FTC Chairwoman Rebecca Slaughter,
Yahoo Finance, March 12, 2021.

Policing Facebook Under a Biden Administration, New York
Magazine's Pivot Podcast, January 19, 2021.

Talking Tech with FTC Commissioner Rebecca Slaughter, Yale
Law School, November 18, 2020.

How FTC Commissioner Slaughter Wants to Make Antitrust
Enforcement Antiracist, CNBC, September 26, 2020.

The Communicators: FTC, Privacy & Internet Regulation, C-
SPAN, September 17, 2020.

Interview, #Kidtech Podcast, March 13, 2020.

FTC Commissioner on New Tech Like Self-Driving Cars: I 'See
Lots of Risk,' Yahoo Finance, January 9, 2020.

Interview, Broadband Conversations with Jessica, November
14, 2019.

Interview, Recode Decode with Nilay Patel, September 30,
2019.

FTC Settlement Won't Change Facebook's Behavior,
Commissioner Slaughter Says, Bloomberg Technology, July 29,
2019.

Federal Trade Commission Announces Major Crackdown on
Robocalls, CBS News, June 25, 2019.

Antitrust Thought Leaders Interview, Capitol Forum, March
28, 2019.

Keynote Interview, The Atlantic Festival, October 2, 2018.

Superhuman? No, Just a Working Mom., New York Times, May 31,
2018.
Statements Made to Other Agencies
Comment on Circular A-4 Modernization Updates, Office of
Information and Regulatory Affairs, June 6, 2023.

Comment on the Proposed Rule on Independent Contractor
Status Under the Fair Labor Standards Act, Department of Labor,
October 26, 2020.

Letter Regarding the Proposed Rule Defining Unfair or
Deceptive Practices, Department of Transportation, May 28,
2020.

Comment on the Proposed Rulemaking to Revise Regulations
Implementing Sections 201 and 210 of the Public Utility
Regulatory Policies Act of 1978, Federal Energy Regulatory
Commission, November 26, 2019.

20. List all digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the full name of an ``alias'' or ``handle'',
including the complete URL and username with hyperlinks, you have used
on each of the named platforms. Indicate whether the account is active,
deleted, or dormant. Include a link to each account if possible.

Facebook: Becca Kelly Slaughter

Instagram: @rebeccajoykelly

Twitter: @RKSlaughterFTC; I also used to have an old twitter
account that I used just to read; I believe it was @BeccaJoy101

TikTok: @becca joy tktk

LinkedIn: Becca Kelly Slaughter

House Committee on Energy and Commerce, Subcommittee on
Innovation, Data, and Commerce, Hearing on Fiscal Year 2024
Federal Trade Commission Budget, April 18, 2023
(Appropriations).

Prepared Statement of the Federal Trade Commission

Opening Statement

House Committee on Energy and Commerce, Subcommittee on
Consumer Protection and Commerce, Transforming the FTC:
Legislation to Modernize Consumer Protection, July 28, 2021
(Pending consumer protection legislation).

Commission Testimony

Statement

Senate Committee on Commerce, Science and Transportation,
Letter Regarding Section 13(b) of the Federal Trade Commission
Act, May 18, 2021.

House Committee on Energy and Commerce, Subcommittee on
Consumer Protection and Commerce, The Urgent Need to Fix
Section 13(b) of the FTC Act, April 27, 2021. (Pending consumer
protection legislation).

Prepared Statement of the Federal Trade Commission

Opening Statement

Senate Committee on Commerce, Science, and Transportation,
Strengthening the Federal Trade Commission's Authority to
Protect Consumers, April 20, 2021 (Section 13(b) of the FTC
Act).

Prepared Statement of the Federal Trade Commission

Opening Statement

House Committee on the Judiciary, Subcommittee on Antitrust,
Commercial, and Administrative Law, Reviving Competition Part
3: Strengthening the Law to Address Monopoly Power, March 18,
2021 (Potential legislative changes to antitrust law).

Prepared Statement of the Federal Trade Commission

Opening Statement

Senate Committee on Commerce, Science and Transportation,
Oversight of the Federal Trade Commission, August 5, 2020
(Agency oversight).

Opening Statement

House Committee on Energy and Commerce, Subcommittee on
Digital Commerce and Consumer Protection, Oversight of the
Federal Trade Commission: Strengthening Protections for
Americans' Privacy and Data Security, May 8, 2019 (Agency
oversight).

Prepared Statement of the Federal Trade Commission

Statement

Senate Committee on Commerce, Science and Transportation,
Subcommittee on Consumer Protection, Product Safety, Insurance,
and Data Security, Oversight of the Federal Trade Commission,
November 27, 2018 (Agency oversight).

Prepared Statement of the Federal Trade Commission

Statement

House Committee on Energy and Commerce, Subcommittee on
Digital Commerce and Consumer Protection, Oversight of the
Federal Trade Commission, July 18, 2018 (Agency oversight).

Prepared Statement of the Federal Trade Commission

Senate Committee on Commerce, Science and Transportation,
Hearing on Nominations, April 11, 2018 (Nomination hearing).

22. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
It has been a tremendous honor to serve as an FTC Commissioner for
five years, including five months as Acting Chair in 2021. Over the
course of my FTC tenure, I have dedicated myself to ensuring that we
are faithfully executing the responsibilities Congress has entrusted to
us. I have worked closely with fellow Commissioners of both parties and
with staff throughout the agency to understand and support their work
and to ensure that we are doing the best we can every day to serve the
American people by promoting competition and protecting consumers.
There are many reasons serving as an FTC Commissioner is a dream
job: the opportunity to work with brilliant and dedicated agency staff;
the chance to learn something new every day; the drive to find areas of
common ground and consensus with fellow Commissioners; and the
responsibility to grapple with challenging and novel questions of law
and policy. But, above all that,
the greatest privilege--and obligation--that comes with being a
Commissioner at the FTC is the ability to work every day to right
wrongs and to improve the lives of the people we serve.
23. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
I believe that every Commissioner has a duty to study carefully the
statutorily delegated responsibilities of the Commission and to ensure
that all actions the Commission undertakes are consistent with that
delegation and with the responsible stewardship of taxpayer dollars. I
work closely with the staff of our Financial Management Office and
fellow Commissioners to develop and stick to a prudent budget that
delivers on our mission. I have spearheaded efforts to reduce expenses,
such as by having more of our staff economists trained to serve as
experts instead of having to outsource to high-priced outside experts.
As a Commissioner, I have consistently advocated for more resources to
be allocated to the FTC because I know that it provides a terrific
return on the investment of taxpayer dollars.
24. What do you believe to be the top three challenges facing the
department/agency, and why?
The FTC's greatest challenge has been and continues to be meeting
the enforcement demands on the agency within the confines of our
limited budget. Doing so requires making difficult decisions about what
conduct we investigate and which cases we ultimately choose to
litigate.
A second acute challenge is executing on our mission while adapting
to various court decisions that have substantially cut back on the
agency's longstanding authority. The most obvious example of this is
the Supreme Court's decision in AMG Capital Management, LLC v. FTC,
which thwarted the Commission's ability to go to Federal court and seek
restitution for consumers who've had money wrongfully taken from them.
Finally, the agency faces an ongoing challenge of ensuring our
enforcement efforts keep pace with fast-changing technology and market
conduct.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts, such as a 401(k) or pension plan. None.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association, or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If re-confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official. I am not aware of any other potential conflicts of interest.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
For the entirety of the last ten years, I have been an employee of
the U.S. Federal government. In connection with the nomination process,
I have consulted with the U.S. Office of Government Ethics and the
Federal Trade Commission's Designated Agency Ethics Official to
identify potential conflicts of interest. If re-confirmed, any
potential conflicts of interest will be resolved in accordance with the
terms of the ethics agreement that I have entered into with the
Commission's Designated Agency Ethics Official. I am not aware of any
other potential conflicts of interest.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If re-confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official. I am not aware of any other potential conflicts of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
For the entirety of the past ten years, I have been an employee of
the Federal government. As a Commissioner of the Federal Trade
Commission, I have occasionally been called upon to give my perspective
on pending legislation or the agency's need for new legislation. As an
employee of Senator Schumer, my professional responsibilities included
work within the jurisdiction of the Judiciary and Commerce Committees
on the drafting, negotiating, and passage of legislation, as well as
oversight of Federal agencies.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, an Inspector General, professional association, disciplinary
committee, or other professional group? If yes:

a. Provide the name of court, agency, association, committee, or
group;

b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;

c. Describe the citation, disciplinary action, complaint, or
personnel action;

d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.

No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority?
If re-confirmed, I would work diligently with my fellow
Commissioners to do so, as has been my practice during my tenure at the
FTC.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures?
If re-confirmed, I would work diligently with my fellow
Commissioners to do so, as has been my practice during my tenure at the
FTC.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

______

September 11, 2023

Hon. Maria Cantwell,
Chair,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.

Hon. Ted Cruz,
Ranking Member,
Committee on Commerce, Science, and Transportation,
United States Senate,
Washington, DC.

Dear Chair Cantwell and Ranking Member Cruz,

I write to supplement my Committee Questionnaire with a few items I
inadvertently omitted on submission.
Question 15 asks the respondent to ``itemize all political
contributions to any individual, campaign organization, political
party, political action committee, or similar entity of $200 or more
for the past 10 years.'' I omitted two donations:

Biden for President ($500, 9/18/20) \1\
---------------------------------------------------------------------------
\1\ I found three donations listed on the FEC website--the two
listed here, and an additional $500 to Biden for President on 9/28/20.
However, when I expanded out the information about that second
donation, it reflects ``Biden Victory Fund'' in the memo line. I cross
checked my e-mail receipts and my credit card statements, and could
only find the two donations I have included above, leading me to
conclude the second entry on the FEC site is duplicative.

---------------------------------------------------------------------------
Biden Victory Fund ($500, 9/28/20).

Your staff also inquired about various sub-$200 donations to
ActBlue that were reported on the FEC website. I do not believe these
are responsive to the Committee's questionnaire.
However, in the interest of being transparent and responsive to
your questions, I am happy to disclose the details of those donations.
Specifically, in 2020, I made eleven donations of $100 each: nine to
Democratic candidates for the Senate,\2\ one to Color of Change, and
one to Future Now Fund. For five of those donations, I added a $10
``tip'' to ActBlue directly.\3\ With the exception of the total of $50
in tips, these donations were not to ActBlue itself but to individual
candidates or causes and processed through the ActBlue platform.
---------------------------------------------------------------------------
\2\ These candidates were: Jaime Harrison, Sara Gideon, Theresa
Greenfield, Cal Cunningham, Steve Bullock, Alan Gross, Barbara Bollier,
Gary Peters, and MJ Hegar.
\3\ Again, I cross checked the FEC website with my e-mail receipts
and my credit card statements to confirm this information. I saw
additional small dollar donations to ActBlue (and WinRed) from people
named Rebecca Slaughter, but those were made by different people with
the same name as me.
---------------------------------------------------------------------------
Question 19 asks the respondent to list ``all public statements you
have made during the past ten years.'' I omitted a video I recorded for
the FTC website:

Avoid Covid-19 Stimulus Payment Scams, FTC Blog Post, March
12, 2021.

I sincerely apologize for these omissions; in preparing my
questionnaire, I endeavored to complete as thorough a search as
possible and include everything responsive to the Committee's request,
and anything I left out was an accidental oversight. I appreciate your
staff's calling these items to my attention and the opportunity to
provide this supplement.
Sincerely,
Rebecca Kelly Slaughter.

The Chair. Thank you, Ms. Slaughter. And again, welcome to
your family and it is great to have your parents here as well.
Mr. Ferguson.

STATEMENT OF ANDREW N. FERGUSON, NOMINEE TO BE A COMMISSIONER,
FEDERAL TRADE COMMISSION

Mr. Ferguson. Good morning. Chair Cantwell, Ranking Member
Cruz, and members of this Committee, I thank you for holding
today's hearing and for inviting me to testify. I thank
President Biden for nominating me to serve as a Commissioner on
the FTC.
I am honored to have been chosen for the role. I also thank
Leader McConnell for his generous introduction, for
recommending me to the President for this post, and for the
opportunity to serve in his office for several years. Leader
McConnell is one of the most influential legislators in
American history and I will always be grateful for my time
working for him. I also think Senator Lee for his kind words.
I really enjoyed working with him in the Senate as well. My
parents are in the hearing room today, and other family and
friends are watching both here and remotely. I am deeply
grateful to my parents. They both made tremendous personal
sacrifices while raising three boisterous boys into men and
ensuring that we all had access to a Christian education.
Whatever good I have to offer the world was because of them.
The free enterprise system is perhaps America's greatest
contribution to the world. It has lifted countless millions of
people out of poverty and has liberated them to pursue the sort
of human flourishing to which all members of society are
entitled. No economic system has promoted the common good more
than free enterprise. But the free enterprise system is not
automatically self-defending.
Society reaps the benefits of the free enterprise system
only if it protects the system from monopolies and fraud. That
is the FTC's crucial mission, to protect against unfair methods
of competition in our markets, and to protect consumers from
fraud and other deceptive practices.
Without vigorous enforcement of our competition and
consumer protection laws, our free enterprise system would
cease to be the miraculous engine for mass flourishing that has
transformed the world. It would promote the interests of a
select few at the expense of the many.
I firmly believe in the FTC's mission, and I believe my
experience as a litigator and policy advisor will empower me to
help lead the agency in the execution of that mission. In
private practice, I litigated consumer protection and antitrust
investigations before the FTC and the Justice Department.
I also litigated antitrust class actions in merger cases,
including one of the largest Section 7 cases in history. And
then as a Senate staffer, I saw the legislative process up
close. I understand the difficult negotiations and careful
compromises that go into the creation of our laws. I learned
during my work on the CARES Act negotiations that our
institutions function best through bipartisan cooperation,
whenever that is possible.
And I know that Congress expects, and our Constitution
requires, that Executive Branch agencies like the FTC will
vigorously enforce the laws as Congress has written them,
respect the separation of powers, and obey the constraints
Congress imposes on their authority.
Most recently, I served for nearly 2 years as the Solicitor
General of Virginia, where I have helped lead the Attorney
General's efforts to protect the Commonwealth's consumers.
I am Counsel of Record for Virginia in a coalition of 16
other states, states led by both Republican and Democratic
Attorneys General, alongside the United States in an important
Section 2 lawsuit against Google, alleging that Google has
monopolized the ad tech markets.
I have also filed amicus briefs defending state efforts to
regulate TikTok in Alario & TikTok v. Knudsen, and State laws
protecting consumers from pharmaceutical companies In re
Fosamax.
And in addition, I recently filed an amicus brief before
the Supreme Court on the Attorney General's behalf alongside a
bipartisan coalition of 42 states and territories to help
protect veterans' access to the GI benefits that they have
earned. Consumer protection and competition are not partisan
issues.
Every American has a stake in ensuring that our free
enterprise system works for the common good of all. If
confirmed, I commit to protecting consumers, enforcing the laws
as Congress has written them, and fulfilling the FTC's mandate
to ensure that the free enterprise system works for everyone. I
look forward to your questions. Thank you.
[The prepared statement and biographical information of Mr.
Ferguson follow:]

Prepared Statement of Andrew N. Ferguson, Nominee to be a Commissioner,
Federal Trade Commission
Chair Cantwell, Ranking Member Cruz, and members of this Committee,
I thank you for holding today's hearing and for the invitation to
testify.
I thank President Biden for nominating me to serve as a
Commissioner on the Federal Trade Commission. I am honored to have been
chosen for this role.
I also thank Leader McConnell for his generous introduction, for
recommending me to the President for this post, and for the opportunity
to serve in his office for several years. Leader McConnell is one of
the most influential legislators in American history, and I will always
be grateful for my time working for him.
My parents are in the hearing room today, and other family and
friends are watching remotely. I am deeply grateful to my parents. They
both made tremendous personal sacrifices while raising three boisterous
boys, and in ensuring we all had access to a Christian education.
Whatever good I have to offer the world is because of them.
The free-enterprise system is perhaps America's greatest
contribution to the world. It has lifted countless millions of people
out of poverty, and has liberated them to pursue the sort of human
flourishing to which all members of society are entitled. No economic
system has promoted the common good more than free enterprise.
But the free-enterprise system is not automatically self-defending.
Society reaps the benefits of free enterprise only if it protects the
system from monopolies and fraud. That is the FTC's crucial mission--to
protect against unfair methods of competition in our markets and to
protect consumers from fraud and other deceptive practices. Without
vigorous enforcement of our competition and consumer-protection laws,
our free-enterprise system would cease to be the miraculous engine for
mass flourishing that has transformed the world. It would promote the
interests of a select few at the expense of the many.
I firmly believe in the FTC's mission. And I believe my experience
as a litigator and policy advisor will empower me to help lead the FTC
in the execution of its mission.
In private practice, I litigated consumer-protection and antirust
investigations before the FTC and the Justice Department. I litigated
antitrust class-action and merger cases, including one of the largest
Section 7 cases in history.
Then, as a Senate staffer, I saw the legislative process up close.
I understand the difficult negotiations and careful compromises that go
into the creation of our laws. I learned during my work on the CARES
Act negotiations that our institutions function best through bipartisan
cooperation whenever that is possible. And I know that Congress
expects--and our Constitution requires--that executive-branch agencies
like the FTC will vigorously enforce the laws as Congress has written
them, respect the separation of powers, and obey the constraints
Congress imposes on their authority.
Most recently, I have served for nearly two years as the Solicitor
General of Virginia, where I have helped lead the Attorney General's
efforts to protect consumers. I am counsel of record for Virginia and a
coalition of sixteen other States--led by both Republican and
Democratic attorneys general--alongside the United States in an
important Section 2 lawsuit against Google, alleging that Google has
monopolized the ad-tech markets. I have also filed amicus briefs
defending State efforts to regulate TikTok in Alario & TikTok v.
Knudsen, and State laws protecting consumers from pharmaceutical
companies in In re Fosamax Products Liability Litigation. In addition,
I recently filed an amicus brief before the Supreme Court on behalf of
a bipartisan coalition of forty-two States and territories to help
protect veterans' access to GI benefits in Rudisill v. McDonough.
Consumer protection and competition are not partisan issues. Every
American has a stake in ensuring our free-enterprise system works for
the common good. If confirmed, I commit to protecting consumers,
enforcing the law, and fulfilling the FTC's mandate to ensure the free-
enterprise system works for all.
I look forward to your questions.
______

a. biographical information
1. Name (Include any former names or nicknames used): Andrew N.
Ferguson.
2. Position to which nominated: Commissioner, Federal Trade
Commission.
3. Date of Nomination: July 11, 2023.
4. Address (List current place of residence and office addresses):
Residence: Information not released to the public.
Office: 202 North Ninth Street, Richmond, Virginia 23220.

5. Date and Place of Birth: June 17, 1986; Harrisonburg, Virginia.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage). None.
7. List all college and graduate schools attended, whether or not
you were granted a degree by the institution. Provide the name of the
institution, the dates attended, the degree received, and the date of
the degree.

University of Virginia, 2005-2009, B.A. awarded May 2009

William & Mary School of Law, 2009-2010 (transferred)

University of Virginia School of Law, 2010-2012, J.D. awarded
May 2012

Solicitor General of the Commonwealth of Virginia, 2022 to
present*

Transition Counsel, Miyares for Virginia, 2021-2022

Chief Counsel to the Senate Republican Leader Mitch McConnell,
2019- 2021*

Adjunct Professor, George Mason University Antonin Scalia
School of Law, 2019, 2021

Chief Counsel for Nominations and the Constitution to the
Chairman of the Senate Judiciary Committee Lindsey Graham,
2018-2019*

Senior Special Counsel to the Chairman of the Senate Judiciary
Committee Chuck Grassley, 2018*

Associate, Sidley Austin LLP, 2018*

Law clerk to Justice Clarence Thomas, Supreme Court of the
United States, 2016-2017*

Associate, Bancroft PLLC, 2015-2016*

Associate, Covington & Burling, 2014-2015*

Law clerk to Circuit Judge Karen L. Henderson, U.S. Court of
Appeals for the D.C. Circuit, 2012-2014*

Summer Associate, Gibson, Dunn & Crutcher, 2011

Summer Associate, Williams Mullen, 2010

Intern to Senior District Judge Norman K. Moon, U.S. District
Court for the Western District of Virginia, 2010

*Denotes management-level jobs and non-managerial jobs that relate
to the position for which I am nominated.
9. Attach a copy of your resume.
See Attachment A.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above after 18 years of age. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution.

Consultant, A Safer Virginia PAC, 2021-2022

12. Please list each membership you have had after 18 years of age
or currently hold with any civic, social, charitable, educational,
political, professional, fraternal, benevolent or religiously
affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.

Virginia State Bar, Member, 2013-Present

District of Columbia Bar, Member, 2015-Present

Supreme Court of the United States, Bar Member, 2021 to present

U.S. Court of Appeals for the Second Circuit, Bar Member, 2015
to present (inactive)

U.S. Court of Appeals for the Third Circuit, Bar Member, 2015
to present

U.S. Court of Appeals for the Fourth Circuit, Bar Member, 2021
to present

U.S. Court of Appeals for the Sixth Circuit, Bar Member, 2015
to present

U.S. Court of Appeals for the Ninth Circuit, Bar Member, 2015
to present

U.S. Court of Appeals for the D.C. Circuit, Bar Member, 2014 to
present

U.S. District Court for the Western District of Virginia, Bar
Member, 2022 to present

U.S. District Court for the Eastern District of Virginia, Bar
Member, 2022 to present

U.S. District Court for the District of North Dakota, Bar
Member, 2023 to present

Federalist Society, Member, 2010 to present

Teneo Network, Member, 2022 to present

Virginia Bar Association, Member, 2022 to present

Committee on Special Issues of National and State Importance,
Member, 2022 to present

National Rifle Association, Member, 2017-2020

None of these groups restricts membership on the basis of race,
sex, color, religion, national origin, age, or disability.
13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt.
I have not been a candidate for elected office. Since January 2022,
I have served as the appointed Solicitor General of the Commonwealth of
Virginia. There was no campaign associated with that appointment. That
position is the only public office I have held.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
I served as a transition counsel for Attorney General Jason
Miyares's 2021 campaign for Attorney General of Virginia from December
2021 until January 2022. I advised the campaign on hiring and policy
issues. This was a compensated position.
I was a volunteer lawyer on Governor Glenn Youngkin's 2021 campaign
for Governor of Virginia in November 2021.
I was a campaign volunteer on Matthew Lohr's 2005 campaign to be a
member of the Virginia House of Delegates for the 26th District.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $200 or more for the past ten years.

Grassley Committee, Inc.--$250 (March 14, 2022)

Youngkin for Governor--$500 (October 29, 2021)

Tom Cotton for Senate--$250 (November 2, 2020)

McConnell Senate Committee--$500 (July 10, 2019)

John Adams for Virginia--$500 (September 30, 2017)

John Adams for Virginia--$250 (June 8, 2016)

16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.

Richard Heath Dabney Prize for Outstanding Thesis in United
States History, University of Virginia (2009)
Virginia Lawyers Weekly ``Up & Coming Lawyers'' (2022)

Panelist, ``Developments in Religious Liberty,'' Office of the
Attorney General CLE Series (July 27, 2023), no public
recording available. I have included the outline distributed to
attendees as Attachment B to this questionnaire.

Speaker, ``Summer Rooftop Reception,'' Columbia Law School and
University of Pennsylvania Law School Alumni Chapters (July 26,
2023), no recording available.

Panelist, ``Academic Freedom in Higher Education: The Role of
States Defending Freedom of Thought,'' Panel at the 2023
Federalist Society Freedom of Thought Conference (June 28,
2023), recording at: https://fedsoc.org/conferences/2023-
freedom-of-thought-conference?#agenda-item-panel-4-academic-
freedom-in-higher-education-the-role-of-states-defending-
freedom-of-thought.

Panelist, ``Appellate Brief-Writing 101,'' Office of the
Attorney General CLE Series (June 27, 2023), no public
recording available. I have included the outline distributed to
attendees as Attachment C to this questionnaire.

Speaker, ``The Role of a State Solicitor General,'' University
of Virginia School of Law Federalist Society Event (February 2,
2023), no recording available.

Panelist, ``How Big is too Big? Competition in the Tech
Sector,'' Knight Foundation INFORMED event (November 29, 2022),
recording at: https://knight
foundation.org/events/knight-media-forum/informed-
conversations-on-democracy-in-the-digital-age/.

Speaker, ``Small Group Dinner with Andrew Ferguson and Will
Levi,'' DC Federalist Society Young Lawyers Chapter Event
(October 12, 2022), no recording available.

Panelist, ``SCOTUS Review and Preview,'' Eighth Annual
Federalist Society Texas Chapters Conference (September 23,
2022), no recording available.

Panelist, ``The Roberts Court at Age 16,'' Virginia Bar
Association Summer Meeting (July 22, 2022), https://
vba.inreachce.com/Details/Information/c729
4956-4dbb-41f6-9857-36d2af181dd6.

Panelist, ``A Conversation with Two Solicitors General,''
Federalist Society Puerto Rico Lawyers Chapter Event (May 26,
2022), no recording available.

Panelist, ``A Conversation with Three Solicitors General,''
Federalist Society Richmond Lawyers Chapter (March 21, 2022),
no recording available.

Speaker, ``Protecting the Family through the Rule of Law,''
Family Foundation of Virginia Meeting (March 19, 2022), no
recording available.

Panelist, ``The Role of Federalism and the Separation of Powers
in Challenging Government Overreach,'' Federalist Society
Florida Chapters Conference, (February 5, 2022), no recording
available.

Speaker, ``Advice and Consent: Top Senate Staffers'
Perspectives on the Barrett Confirmation,'' Federalist Society
DC Young Lawyers Chapter Event (December 2, 2020), no recording
available.

Panelist, ``Federal Opportunities: Promoting Freedom and the
Rule of Law,'' Alliance Defending Freedom Blackstone Legal
Fellowship Conference (August 31, 2020), no recording
available.

Panelist, ``Lawyering on the Hill,'' Federalist Society Capitol
Hill Chapter Event (August 1, 2019), no recording available.

Panelist, ``Federal Efforts to Safeguard Religious Liberty,''
Alliance Defending Freedom Summit on Religious Liberty (July 9,
2019), no recording available.

19. List all public statements you have made during the past ten
years, including statements in news articles and radio and television
appearances, which are on topics relevant to the position for which you
have been nominated, including dates. Include a link to each statement
when possible. If a link is not available, provide a digital copy of
the statement when available.
*I have done my best to identify all public statements I have made
over the past ten years, including statements in news articles and
radio and television appearances, including through a thorough review
of personal files and searches of publicly available electronic
databases. Despite my searches, there may be other materials I have
been unable to identify, find, or remember. I have located the
statements listed below. This list does not include instances where
news articles have quoted from written submissions I have filed with
courts in my capacity as Solicitor General of the Commonwealth of
Virginia.

Testimony before the Virginia House of Delegates Committee on
the Courts of Justice, Civil Subcommittee, regarding several
bills (February 13, 2023), recording available at: https://
virginiageneralassembly.gov/house/chamber/chamber
stream.php.

Testimony before the Virginia Senate Committee on the Judiciary
regarding SB 1224 (February 1, 2023), recording available at:
https://virginia-senate.
granicus.com/MediaPlayer.php?view_id=3&clip_id=5668.

Testimony before the Virginia House of Delegates Committee on
the Courts of Justice, Criminal Subcommittee, regarding HB 2015
(January 16, 2023), recording available at: https://
virginiageneralassembly.gov/house/chamber/chamber
stream.php.

Denise Lavoie, Loudoun County NAACP Asks to Join Virginia
redistricting lawsuit, ABC7 News (March 22, 2022), https://
wjla.com/news/local/loudoun-county-naacp-asks-to-join-virginia-
redistricting-lawsuit-paul-goldman-mark-herring.

Cher Muzyk, Can Va. Public Schools Ask Some Students to Wear
Masks to Protect Their High Risk Classmates? A Federal Judge
Says He'll Decide ``Quickly,'' Prince William Times (March 8,
2022), https://www.princewilliamtimes.com/news/can-va-public-
schools-ask-some-students-to-wear-masks-to-protect-their-high-
risk/article_13245d64-9ee8-11ec-b6bc-4f62271f6a37.html.

Hannah Natanson & Justin Jouvenal, Judge Halts Loudoun's School
Mask Mandate as State Mask-Optional Law Takes Effect,
Washington Post (February 16, 2022), https://
www.washingtonpost.com/education/2022/02/16
/judge-halts-loudouns-school-mask-mandate-halted-state-mask-
optional-law-takes-effect/.

Anya Sczerzenie, Loudoun Makes Masks Optional Immediately After
Judge Grants Injunction, Inside NoVa (February 16, 2022),
https://www.insidenova
.com/news/education/loudoun-makes-masks-optional-immediately-
after-judge-grants-injunction/article_1ac65cda-8fa6-11ec-ba6c-
23c1c921ce0f.html.

Miyares Picks ex-McConnell Counsel as Solicitor General,
Associated Press
(December 8, 2021), https://apnews.com/article/us-supreme-
court-virginia-mitch-mcconnell-congress-supreme-court-of-
virginia-1bf4927157410fb987f6395df
fcd2797.

Erin Flynn, Climbing His Way to The Top, Daily-News Record
(April 6, 2016), https://www.dnronline.com/news/climbing-his-
way-to-the-top/article_d6729c5
b-fa58-522b-a43d-9d9f720af014.html.

Eric Williamson, Andrew Ferguson '12 to Clerk for Supreme Court
Justice Clarence Thomas, University of Virginia School of Law
(March 3, 2016), https://www.law.virginia.edu/news/201603/
andrew-ferguson-12-clerk-supreme-court-justice-clarence-thomas.

Twitter: @nocleverideas (https://twitter.com/nocleverideas)
(active)

Facebook: Andrew Ferguson (https://www.facebook.com/
profile.php?id=152
0985) (active)

Instagram: @andytheferg (dormant)

LinkedIn: https://www.linkedin.com/in/andrew-ferguson-472168203
(dormant)

a. Sidley Austin 401(k): I will continue to participate in this
defined contribution plan, but the plan sponsor and I no longer
make any contributions.

b. Commonwealth of Virginia ORPPA Plan: I will continue to
participate in this defined contribution plan. The plan sponsor
will not make further contributions after my separation.

c. Commonwealth of Virginia 457 Plan: I will continue to participate
in this defined contribution plan. The plan sponsor will not
make further contributions after my separation.

d. Commonwealth of Virginia Cash Match Plan: I will continue to
participate in this defined contribution plan. The plan sponsor
will not make further contributions after my separation.

2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association, or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
I am not aware of any other potential conflicts of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
None, except in my role as a Senate staffer and as Solicitor
General of Virginia.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, an Inspector General, professional association, disciplinary
committee, or other professional group?
If yes:

a. Provide the name of court, agency, association, committee, or
group;

b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;

c. Describe the citation, disciplinary action, complaint, or
personnel action;

d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.

No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination.
I have no additional information to disclose.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority?
If confirmed, I would work diligently with my fellow commissioners
to ensure compliance with deadlines and requests for information.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______

ATTACHMENT A
Resume of Andrew N. Ferguson
EMPLOYMENT
Office of the Attorney General of Virginia, Richmond, VA
Solicitor General of Virginia,January 2022-present
Chief appellate litigator for the Commonwealth of Virginia
Manage an office of eight lawyers responsible for briefing
and arguing Virginia's appellate litigation in state and
Federal courts, as well as overseeing Virginia's multi-state
amicus and litigation practice

Antonin Scalia Law School, Arlington, VA
Adjunct Professor, Spring 2019, Spring 2021
Courses taught: Conflict of Laws and Federal Courts

U.S. Senate Republican Leader Mitch McConnell, Washington, DC
Chief Counsel, July 2019-September 2021
Chief legal advisor to the Majority Leader, providing
counsel on constitutional, national-security, immigration,
intellectual-property, election, antitrust, and criminal-
justice issues
Principal advisor to the Majority Leader on judicial
nominations and confirmation strategy, including the
development and execution of the Majority Leader's strategy for
the confirmation of Justice Amy Coney Barrett
Advised the Majority Leader on the development and drafting
of major tort-reform legislation to address the economic
effects of the COVID-19 pandemic (the SAFE TO WORK Act)

U.S. Senate Committee on the Judiciary, Washington, DC
Chief Counsel for Nominations and the Constitution to Chairman Lindsay
Graham, December 2018-July 2019
Principal advisor to then-Chairman Graham on nominations,
including the confirmation of Attorney General William P. Barr,
twelve circuit judges, and dozens of district judges
Led a team of lawyers, law clerks, and other professional
staff who vetted judicial and executive-branch nominees,
directed confirmation hearings for those nominees, organized
their Committee votes, and assisted the Majority Leader's staff
in preparing for confirmation votes on the Senate floor
Principal advisor to then-Chairman Graham on constitutional
issues within the Committee's legislative and oversight
jurisdiction

U.S. Senate Committee on the Judiciary, Washington, DC
Senior Special Counsel to Chairman Chuck Grassley,July 2018-October
2018
Led a team of more than a dozen lawyers and law clerks who
assisted then-Chairman Grassley on the confirmation of Justice
Brett Kavanaugh by reviewing documents from Justice Kavanaugh's
White House service, reviewed and analyzed Justice Kavanaugh's
judicial record, planned and executed the confirmation
hearings, and prepared rapid-response materials throughout the
confirmation process
Developed the Committee's strategy for obtaining and
reviewing hundreds of thousands of White House documents, and
oversaw the acquisition and review of those documents

Sidley Austin LLP, Washington, DC
Associate, January 2018-July 2018
Represented clients in business litigation matters in state
and Federal trial and appellate courts
Represented clients in antitrust and consumer-protection
investigations conducted by the Federal Trade Commission and
the Department of Justice

Bancroft PLLC, Washington, DC
Associate, April 2015-June 2016
Drafted more than a dozen petitions for certiorari, merits
briefs, and amicus briefs in cases before the Supreme Court,
and helped prepare experienced advocates for oral arguments
before the Supreme Court
Represented clients in major appellate litigation in U.S.
courts of appeals throughout the country

Covington & Burling LLP, Washington, DC
Associate, February 2014-March 2015
Represented commercial clients in complex antitrust
litigation and provided antitrust counseling and advice
regarding transactions and government investigations
Successfully defended major trade organization from tort
suits filed in more than a dozen state and Federal courts
Provided pro bono employment law counseling to non-profit
organizations
CLERKSHIPS
Hon. Clarence Thomas, Supreme Court of the United States, Washington,
DC
Law Clerk, July 2016-July 2017

Hon. Karen LeCraft Henderson, U.S. Court of Appeals for the D.C.
Circuit, Washington, DC
Law Clerk, August 2012-January 2014
EDUCATION
University of Virginia School of Law, Charlottesville, VA
J.D., 2012
Virginia Law Review, Articles Editor
Supreme Court Litigation Clinic
Research assistant to Professors Sai Prakash and John
Harrison
Federalist Society

William & Mary School of Law, Williamsburg, VA
Completed First Year, 2009-2010
Selected for William & Mary Law Review
Bushrod T. Washington Moot Court Competition, Champion

University of Virginia, Charlottesville, VA
B.A. in History, with Highest Distinction, 2009
Richard Heath Dabney Prize for Outstanding Thesis in U.S.
History
Miller Center GAGE and Presidential Recordings Program,
Research Assistant
OTHER
Admitted to the bars of Virginia and the District of
Columbia
TS/SCI security clearance (deactivated)
______

ATTACHMENT B
Developments in Religious Liberty
Office of the Attorney General
July 27, 2023
Presenters:
Andrew Ferguson, Solicitor General of Virginia
Kevin Gallagher, Deputy Solicitor General and Director of Tenth
Amendment Litigation
Rick Eberstadt, Assistant Solicitor General

Introduction

Over the last few years, the U.S. Supreme Court and
Supreme Court of Virginia have issued momentous decisions
about religious protections.

We will walk through six categories of religious
liberty protections that government lawyers need to know.

Federal and constitutional protections applicable to all
government policies

The First Amendment provides that ``Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.''

The two parts of this provision are known as the
Establishment Clause and the Free Exercise Clause.

Although the First Amendment applies only to Federal
action by its terms, the U.S. Supreme Court has applied the
First Amendment to the States through the Due Process
Clause of the Fourteenth Amendment. See Everson v. Board of
Education of the Township of Ewing, 330 U.S. 1 (1947)
(incorporating Establishment Clause); Cantwell v.
Connecticut, 310 U.S. 296 (1940) (incorporating the Free
Exercise Clause).

Federal Establishment Clause

For decades, the U.S. Supreme Court applied the test
announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), to
determine whether government action violated the
Establishment Clause.

The Lemon test, however, proved difficult
to apply, and the Court began to move away from Lemon
towards a historically informed approach in Town of
Greece v. Galloway, 572 U.S. 565 (2014), and The
American Legion v. American Humanist Association, 588
U.S. ___, 139 S. Ct. 2067 (2019).

In Kennedy v. Bremerton School District,
597 U.S. ___, 142 S. Ct. 2407 (2022), the Supreme Court
overruled Lemon's ``ambitious, abstract, and a
historical'' approach to the Establishment Clause.

Instead, the Court instructed that the
Establishment Clause must be interpreted by reference
to historical practices and understandings.

After Bremerton, government action is not a violation
of the Establishment Clause if the action is consistent
with historical tradition.

What is unclear, however, is how the Establishment
Clause applies to government action that is not consistent
with historical tradition.

Federal Free Exercise Clause

For decades, the U.S. Supreme Court enforced a rigorous
understanding of the Free Exercise Clause under which
government intrusion on the exercise of one's religion had
to survive strict scrutiny. See Sherbert v. Verner, 374
U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

To satisfy strict scrutiny, the government
must show that the burden on religion advances a
governmental interest of the utmost importance
(compelling-interest prong), and that the burden is the
least restrictive means available to advance that
interest (narrow-tailoring prong).

In Employment Division v. Smith, 494 U.S. 872 (1990),
however, the Supreme Court abandoned this framework and
held that a government policy does not violate the Free
Exercise Clause even if it substantially burdens the
exercise of religion, so long as (1) the policy is neutral
with regard to religion and (2) the policy is generally
applicable. Such policies are subject only to rational-
basis review.

The rule of Smith, however, is cabined by two important
qualifications

First, government action, even if facially
neutral with regard to religion, is not ``neutral'' for
Smith purposes if it is based on religious animus, that
is, if it proceeds in a manner intolerant of religious
beliefs or restricts practices because of their
religious nature. Church of the Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U.S. 520 (1993).

Second, government action is not generally
applicable if it invites the government to consider the
particular reasons for a person's conduct by providing
a mechanism for individualized exemptions. Fulton v.
City of Philadelphia, 593 U.S. ___, 141 S. Ct. 1868
(2021).

Lukumi animus is relatively difficult to
prove. But because may statutes and regulations include
exceptions or confer discretionary authority to grant
exceptions, much ``neutral'' government action will be
subject to strict scrutiny under Fulton.

State establishment and free-exercise provisions

Article I, Sec. 16 of the Virginia Constitution
contains establishment and free-exercise protections.\1\
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\1\ Article I, Sec. 16 provides: ``That religion or the duty which
we owe to our Creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force or violence; and,
therefore, all men are equally entitled to the free exercise of
religion, according to the dictates of conscience; and that it is the
mutual duty of all to practice Christian forbearance, love, and charity
towards each other. No man shall be compelled to frequent or support
any religious worship, place, or ministry whatsoever, nor shall be
enforced, restrained, molested, or burthened in his body or goods, nor
shall otherwise suffer on account of his religious opinions or belief;
but all men shall be free to profess and by argument to maintain their
opinions in matters of religion, and the same shall in nowise diminish,
enlarge, or affect their civil capacities. And the General Assembly
shall not prescribe any religious test whatever, or confer any peculiar
privileges or advantages on any sect or denomination, or pass any law
requiring or authorizing any religious society, or the people of any
district within this Commonwealth, to levy on themselves or others, any
tax for the erection or repair of any house of public worship, or for
the support of any church or ministry; but it shall be left free to
every person to select his religious instructor, and to make for his
support such private contract as he shall please.''

The Virginia Supreme Court has held that Article I,
Sec. 16 is ``a `parallel provision' to the Establishment
Clause'' of the Federal Constitution. Virginia College
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Building Authority v. Lynn, 260 Va. 608, 626 (2000).

The meaning of Virginia's free-exercise protection is
unclear.

The Virginia Supreme Court recently heard
argument in Vlaming v. West Point School Board,
No.211061, where one of the questions presented is
whether Article I, Sec. 16 should be interpreted
consistently with the U.S. Supreme Court's
interpretation of the First Amendment in Smith, or
whether some other standard should apply.

The Commonwealth has argued in Vlaming that
the Court should apply strict scrutiny to every
government policy that burdens an individual's
religious exercise because when Virginia ratified the
current free-exercise provision in 1971, the ratifying
public generally understood that it was adopting then
then-prevailing First Amendment strict-scrutiny test.

Strict scrutiny is also consistent with the
original public meaning of Virginia's free-exercise
provision when that provision was first ratified in
1776.

First Amendment protections of access to generally available
public benefits programs

Excluding religious individuals or institutions from
otherwise generally available public-benefits programs
because of their religious status or conduct violates the
Free Exercise Clause.

The Free Exercise Clause protects against indirect
coercion or penalties on the free exercise of religion, not
just outright prohibitions.

The U.S. Supreme Court recently applied this principle
in the context of three state laws that excluded religious
organizations from participating in otherwise generally
available public-benefit programs. See Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct.
2012 (2017); Espinoza v. Montana Dep't of Revenue, 591 U.S.
___, 140 S. Ct. 2246 (2020); Carson v. Makin, 596 U.S. ___,
142 S. Ct. 1987 (2022).

There remains one lone outlier in the public-benefits-
program jurisprudence--Locke v. Davey, 540 U.S. 712 (2004).

Article VIII, Sec. 10 of the Virginia Constitution--a form
of Blaine Amendment--generally forbids the Commonwealth and its
municipal subdivisions from expending public funds on any
private education institution that is not ``nonsectarian.''

The restriction is not limited merely to direct
appropriations; it bars the use of public funds to support
religious institutions more generally.

When this provision was ratified in 1971, the U.S.
Supreme Court had recognized ``room for play in the
joints'' between the Establishment Clause and Free Exercise
Clauses. In other words, the Court had understood that
there is some conduct which a State may prohibit without
violating the Free Exercise Clause on the basis of
generalized anti-establishment concerns, even if the
prohibited conduct would not in fact violate the
Establishment Clause. Walz v. Tax Commission of the City of
New York, 397 U.S. 664, 669 (1970).

Carson, however, rejected the proposition that States
may use generalized anti-establishment concerns to justify
burdening the exercise of religion. The lawfulness of
Article VIII, Sec. 10s prohibition on the expenditure of
public funds on ``sectarian'' private schools is therefore
sorely doubtful after Carson.

Employment-specific statutory protections

Title VII of the Civil Rights Act of 1964 prohibits an
employer from ``fail[ing] or refus[ing] to hire or to
discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's . . . religion.'' 42 U.S.C. Sec. 2000e-
2(a)(1). ``The term `religion' includes all aspects of
religious observance and practice, as well as belief. . .
.'' Id. Sec. 2000e(j).

Title VII's prohibition on religious discrimination
requires an employer ``to reasonably accommodate to an
employee's or prospective employee's religious observance
or practice,'' unless doing so would impose an ``undue
hardship on the conduct of the employer's business.'' Id.
Sec. 2000e(j) (emphasis added).

For decades, lower courts applied language from the
U.S. Supreme Court's decision in Trans World Airlines, Inc.
v. Hardison, 432 U.S. 63 (1977), to hold that an employer
suffers an ``undue hardship'' in accommodating an
employee's religious exercise whenever doing so would
require the employer to ``bear more than a de minimis
cost.''

In Groff v. DeJoy, 600 U.S. ___, 143 S. Ct. 2279
(2023), however, the Supreme Court narrowed the scope of
the ``undue hardship'' exception to cover only those
situations where an accommodation would substantially
increase costs in relation to the conduct of the employer's
business.

The relationship between Title VII and the First
Amendment poses unique challenges for government employers:
Title VII requires government employers to grant religious
exemptions to its employment policies absent substantial
burdens on the employer, but granting exemptions likely
subjects those same employment policies to strict scrutiny
under the First Amendment.

Federal and State Religious Freedom Restoration Acts (RFRAs)

Federal RFRA

RFRA was a reaction to Smith

The Supreme Court's decision in Smith
jettisoning strict scrutiny for most free exercise
claims was deeply unpopular.

Congress responded by passing RFRA almost
unanimously in 1993.

Under RFRA, government action that
``substantially burden[ed] a person's exercise of
religion'' was lawful only if the government could
``demonstrate[ ] that the application of the burden''
was ``in furtherance of a compelling government
interest'' and was ``the least restrictive means of
furthering that compelling governmental interest.'' 42
U.S.C. Sec. 2000bb-1(a), (b)(1), (2)

The unambiguous purpose of RFRA purported
to restore the Sherbert/Yoder strict scrutiny test for
all free-exercise claims against any government--
federal, state, or local. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31
(2006)

Shortly after RFRA's enactment, however, the Supreme
Court substantially narrowed its scope only to federal
governmental action.

In City of Boerne v. Flores, 521 U.S. 507
(1997), the U.S. Supreme Court held that RFRA's
application to States and local governments was beyond
Congress's power under Section 5 of the Fourteenth
Amendment.

As a result, RFRA no longer applies to
States or local governments but continues to constrain
Federal government action--particularly Federal
regulations. See, e.g., Burwell v. Hobby Lobby, Inc.,
573 U.S. 682 (2014).

Virginia, like many other States, passed its own state
RFRA--sometimes referred to as ``Baby RFRAs''--in the
aftermath of City of Boerne.

Nearly half the States adopted Baby RFRAs on wide,
bipartisan bases in response to Smith and City of Boerne.

Virginia's RFRA, adopted in 2007, tracks the Federal
RFRA in prohibiting the state and local governments from
``substantially burden[ing] a person's free exercise of
religion . . . unless [the government] demonstrate that
application of the burden to the person is (i) essential to
further a compelling governmental interest and (ii) the
least restrictive means of furthering that compelling
governmental interest.'' Va. Code Sec. 57.2-02(B).

The Virginia Supreme Court has not interpreted the
Virginia RFRA, but it recently heard arguments in Vlaming
v. West Point School Board, No. 211061, where one of the
questions presented is how the Virginia RFRA ought to be
interpreted.

One of the most important questions for Virginia's RFRA
is the scope of Subsection E.

Va. Code Sec. 52.02(E) provides that
``nothing in [the Virginia RFRA] shall prevent any
governmental institution or facility from maintaining
health, safety, security or discipline.''

The only judicial interpretation of
Subsection E read it to permit the government to burden
the exercise of religion in dire emergencies. See
Lighthouse Fellowship Church v. Northam, 458 F. Supp.
3d 418 (E.D. Va. 2020).

The Commonwealth in Vlaming argued that the
exception enumerates the sorts of interest that qualify
as ``compelling governmental interests'' for strict
scrutiny, but that the government must still satisfy
the narrow-tailoring requirement when asserting those
interests as grounds for burdening an individual's free
exercise.

Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA)

RLUIPA is another important post-Smith federal
religious liberty provision that, unlike the Federal RFRA,
applies to state and local government action.

In 2000, Congress once against unanimously adopted
legislation intended to protect religious liberty from
government intrusion.

Responding to City of Boerne, Congress relied on its
power under the Commerce Clause and Spending Clause of
Article I, Sec. 8 rather than its enforcement power under
Sec. 5 of the Fourteenth Amendment (as it had for RFRA).

Like RFRA, RLUIPA re-imposes the Sherbert/Yoder
strict-scrutiny test, but does so for only two situations:
prisons and land-use/zoning decisions

For prisoners, RLUIPA forbids the government from
``impos[ing] a substantial burden on the exercise of a''
prisoner or other institutionalized person ``unless the
government demonstrates that imposition of the burden on
that person . . . is in furtherance of a compelling
governmental interest . . . and is the least restrictive
means of further that compelling governmental interest.''
42 U.S.C. Sec. 2000cc-1(a).

The Court has interpreted RLUIPA to forbid
States from requiring Muslim prisoners to shorten their
beards, Holt v. Hobbs, 574 U.S. 352 (2015), and to
forbid States from imposing a categorical ban on
physical touch by a minister during the execution of a
capital sentence, see Ramirez v. Collier, 595 U.S. ___,
142 S. Ct. 1264 (2022).

For land-use decisions, the government may not ``impose
or implement a land use regulation in a manner that imposes
a substantial burden on the religious exercise of a person
. . . unless the government demonstrates that the
imposition of that burden . . . is in furtherance of a
compelling governmental interest . . . and is the least
restrictive means of furthering that compelling
governmental interest.'' 42 U.S.C. Sec. 2000cc(a)(1). The
prohibition applies for any program that receives Federal
financial assistance; that affects interstate, foreign, or
Indian commerce; or that permits the government to make
individualized assessment about how land will be used. Id.
Sec. 2000cc(a)(2).

The Supreme Court has never addressed the
land-use provision of RLUIPA, and it has been subject
to widely varying interpretations as to what qualifies
as a ``land use regulation'' and whether RLUIPA applies
to eminent domain.

Virginia Human Rights Act

The Virginia Human Rights Act prohibits discrimination
in public accommodations and discrimination by employers on
the basis of, among other things, religion. See Va. Code
Sec. Sec. 2.2-3904, 2.2-3905.

A Federal court recently held that the VHRA does not
contain an explicit waiver of sovereign immunity for
Commonwealth agencies. Mais v. Albemarle Cnty. Sch. Bd.,
___ F. Supp. 3d ___, No. 3:22-cv-51, 2023 WL 2143471 (Feb.
21, 2023).
Cases are described in further detail below.
______

Town of Greece v. Galloway
572 U.S. 565 (2014)
Issue
Does a town violate the Establishment Clause when it opens its
Board meetings with a clergy-delivered prayer, if the Board has a
nondiscrimination policy of clergy selection and does not regulate the
content of the prayers?
Holding
The town's legislative prayer practice is constitutional. The
Establishment Clause is not violated by longstanding traditional
practices whose existence and longevity demonstrate their compatibility
with the First Amendment. Here, nondiscriminatory legislative prayer
qualifies as such a practice, and Greece allowed members of any
religion to become the chaplain and offer legislative prayer. Greece
need not require that the prayers be non-sectarian; indeed, that
requirement would only create rather than solve Establishment Clause
concerns.
Facts
Greece is a mid-sized city in upstate New York. Monthly town board
meetings in Greece, New York, had long opened with a moment of silence.
Beginning in 1999, the meetings opened with a roll call, the Pledge of
Allegiance, and then a prayer given by a local clergy member. The
clergy member--who was an unpaid volunteer--would change each month,
and was chosen from congregations listed in a local directory. The
Board allowed the clergy member to pray however he or she saw fit. The
prayer program was open to all creeds, though in practice nearly all of
the local congregations were Christian, and thus nearly all of the
participating prayer givers had been Christian as well.
Procedural History
Two participants at the town board meetings brought suit in Federal
district court, alleging that the prayer program violated the First
Amendment's Establishment Clause. They did not seek to end the prayer,
but rather to limit the prayers to only ``inclusive and ecumenical''
prayers that referenced only a ``generic God'' and would not risk
associating the local government with any one faith. The district court
upheld the prayer practice on summary judgment. The Second Circuit
reversed, holding that a reasonably observer would believe that Greece
was endorsing Christianity.
Analysis
The Supreme Court had previously held, in Marsh v. Chambers, 463
U.S. 783 (1983), that a state legislature may open its session with a
prayer delivered by a chaplain because the practice had long been
understood as compatible with the First Amendment. Here, the Court
clarified that Marsh did not merely permit a practice that would have
been a constitutional violation if not for its historical practice.
Rather, the First Amendment must be interpreted in reference to
historical practices and understandings. Thus the long history of
legislative prayer--dating back even to the First Congress--
demonstrates that the practice was never understood by the ratifiers to
be incompatible with the First Amendment. In Establishment Clause cases
involving legislative prayer, or other practices with a long post-
ratification history, ``it is not necessary to define the precise
boundary of the Establishment Clause where history shows that the
specific practice is permitted.''
The question here was whether Greece's prayer practice fits this
long tradition of legislative prayer. Respondents had two arguments on
this front: first, that legislative prayer does not approve of prayer
containing sectarian language or themes, and second, that the setting
of the Greece meetings creates social pressures that effectively
require those present to remain or feign participation. Both of these
arguments failed. Legislative prayer is not only constitutional when it
is generic, and the tradition of legislative prayer has not included
this requirement; instead, the history and tradition of legislative
prayer has often allowed non-generic prayer. And to require prayers to
be generic would require the government to regulate the conduct of the
prayer, creating the very Establishment Clause questions that the court
is trying to solve. Absent a pattern of prayer that over time
denigrates, proselytizes, or betrays a government purpose, a challenge
to the content of the prayer is unlikely to establish a constitutional
violation. Nor did the town need to search beyond its borders for non-
Christian clergy, as long as it maintained its non-discrimination
policy for clergy selection.
As to the question of coercion, prayers would violate the First
Amendment if they were coercive. But these were not. The tradition of
legislative prayer allows those present to know that they are not
compelled to join. And the primary audience for the prayers was not the
public but rather the lawmakers. Where the prayer is delivered during
the ceremonial portion of the meeting, the prayer acknowledges the role
of religion in the lives of many present, and does not require others
to participate.
Concurrences
Justice Alito, joined by Justice Scalia, concurred, arguing that
the dissent was mistaken on two points. First, the dissent mistook the
facts of the history of prayer in Greece. Second, the specific facts
underlying the long tradition of legislative prayer undercut the
dissent's objections.
Justice Thomas, joined by Justice Scalia, concurred in part and
concurred in the judgment. He argued that the Establishment Clause
should be read as a provision of federalism, and that under an original
understanding of its meaning, legislative prayer does not implicate the
Clause.
Dissents
Justice Breyer dissented, arguing that the majority opinion had not
given enough weight to the relevant underlying facts in Greece's prayer
program. For example, Greece was not an exclusively Christian town, so
the miniscule number of prayers given by non-Christians was indicative
of an Establishment Clause violation, and Greece did not affirmatively
inform the non-Christian houses of worship about the ability to offer
prayers.
Justice Kagan also dissented, with whom Justices Ginsburg, Breyer,
and Sotomayor joined. She argued that the prayers given here were
primarily sectarian in nature, and that Greece's failure to recognize
religious diversity meant that the town was allowing public sectarian
prayers in a particular religious direction, and this would violate the
Establishment Clause.
______

Kennedy v. Bremerton School District
142 S. Ct. 2407 (2022)
Issues
Do the Free Exercise and Free Speech Clauses of the First Amendment
protect a public employee's religious speech that does not arise from
the scope of their employment?
Is the Establishment Clause of the First Amendment violated when a
``reasonable observer'' could interpret a public employee's religious
speech as state endorsement of religion?
Holding
A government employee's brief, quiet, and personal prayers are
doubly protected by the Free Exercise and Free Speech Clauses of the
First Amendment. When regulating a sincere religious practice, a
government policy presumptively violates the Free Exercise Clause if it
is not neutral and generally applicable. Furthermore, if religious
speech arises outside the scope of the individual's employment, it is
protected by the Free Speech Clause.
To defend a policy that otherwise violates the Free Exercise and
Free Speech clauses, the government entity must have a compelling state
interest that justifies the policy. While avoiding a violation of the
First Amendment's Establishment Clause could be a compelling interest,
that standard is not met in this case. Lemon v. Kurtzman, 403 U.S. 602,
and its progeny, which were ``long ago abandoned'' by the Court,
suggested that the Establishment Clause is violated when a ``reasonable
observer'' could think that the state endorsed religion. Kennedy, slip
op. at 22. It does not include a heckler's veto that compels the
government to purge religion from public life. Barring an effort to
coerce religious practice, then, a government employee's personal
prayer does not run afoul of the Establishment Clause.
Facts
As a person with sincere religious beliefs, high school football
coach Joseph Kennedy knelt on the school's field, bowed his head, and
silently prayed after games. Fearing that it would be sued for a
violation of the First Amendment's Establishment Clause, the Bremerton
School District told Kennedy to stop this religious practice. In
compliance, Coach Kennedy only prayed during a brief time after the
game where coaches were permitted to attend to private affairs.
However, the District placed Kennedy on leave and prohibited him from
engaging with the football program because he did not stop praying.
Procedural History
Kennedy sued the Bremerton School District, alleging that they
violated the Free Speech and Free Exercise Clauses of the First
Amendment. However, the Ninth Circuit held that the District's
regulations did not violate the First Amendment: Kennedy's prayers were
not private speech, and their policy was justified because the District
had a compelling state interest to avoid violating the Establishment
Clause.
Analysis
The Free Speech and Free Exercise Clauses of the First Amendment
work together when religious speech is at issue. Once a plaintiff
demonstrates an infringement of these rights, the defendant must show
that a compelling state interest justifies the regulation and that it
is narrowly tailored to achieve that goal.
Free Exercise Claim
To prove a Free Exercise violation, the plaintiff must show that
``a government entity has burdened his sincere religious practice
pursuant to a policy that is not `neutral' or `generally applicable.'
'' Id. at 12. The Court found that Kennedy discharged this burden. His
prayers constituted a ``sincerely motivated religious exercise,'' and
the District's policy was not ``neutral'' or ``generally applicable''
because it was ``specifically directed'' at Kennedy's religious
conduct. Id. at 13.
Free Speech Claim
To determine the validity of a public employee's Free Speech claim,
the Court must pursue a two-step inquiry. First, it must determine
whether the restricted speech is public or private. A public employee
speaking pursuant to his official duties is not shielded from an
employer's control by the First Amendment. However, he is protected
when speaking ``as a citizen addressing a matter of public concern.''
Id. at 15. If the employee's speech is private, the Court must then
employ a ``delicate balancing of the competing interests surrounding
the speech and its consequences.'' Id.
The Court held that Kennedy's prayers were private speech. The
prayers were not ``ordinarily within the scope of his duties as a
coach,'' and he did them at a time when coaches were free to engage in
private speech. Id. at 17. Though the Court acknowledges the authority
of coaches over students, it rejects an ``excessively broad job
description'' for teachers and coaches that converts all their speech
into ``government speech subject to government control.'' Id. at 18.
Scrutiny Analysis
Notwithstanding these burdens, the District argued that its policy
satisfied strict scrutiny, claiming that the policy served a compelling
state interest by avoiding an Establishment Clause violation. The Court
rejected this argument. The District's argument is based on the ``long
ago abandoned Lemon'' test, which claims that the Establishment Clause
``is offended whenever `a reasonable observer' could conclude that the
government has `endorse[d]' religion.'' Id. at 22. In reality, the
Establishment Clause ``must be interpreted by reference to historical
practices and understandings.'' Id. at 23. Historically, the
Establishment Clause was not intended to purge religion from the public
sphere. It contains ``nothing like a `modified heckler's veto, in which
. . . religious activity can be proscribed based on `perceptions' or
`discomfort.' '' Id. at 22. If Coach Kennedy coerced students to pray,
it would likely run afoul of the Establishment Clause. However, there
was no evidence that he pressured students to pray.
Concurrences
Justice Thomas emphasized that the Court did not resolve two
issues: first, it did not consider whether public employees have
different Free Exercise rights than the general public; and second, it
did not decide what standard of scrutiny applies for evaluating Free
Exercise claims for religious speech.
Justice Alito noted that the opinion does not decide what standard
applies to private speech under the Free Speech Clause. Instead, it
only limits retaliation against Kennedy's private expression.
Dissent
Justice Sotomayor argued that the Court's opinion requires public
schools to permit employees to ``incorporate a public, communicative
display of the employee's personal religious beliefs into a school
event.'' Id. at 13 (Sotomayor, J., dissenting). In her view, this
requires schools to violate the Establishment Clause, as these
activities are likely to coerce students, who are ``uniquely
susceptible to `subtle coercive pressure,' '' into religious exercise.
Id. at 15 (Sotomayor, J., dissenting).
______

Sherbert v. Verner
374 U.S. 398 (1963)
Issue
Whether provisions of a South Carolina statute that disqualified a
Seventh Day Adventist from unemployment benefits abridged her right to
the free exercise of religion under the Free Exercise Clause?
Holding
South Carolina could not constitutionally apply the eligibility
provisions of the unemployment compensation statute so as to deny
benefits to claimant who had refused employment, because of her
religious beliefs, which would require her to work on Saturday.
Facts
Sherbert was a member of the Seventh-Day Adventist Church who was
discharged by her South Carolina employer because she would not work on
Saturday, the Sabbath Day of her faith. When she was unable to obtain
other employment because she would not take Saturday work due to her
religious beliefs, she filed a claim for unemployment compensation
benefits under the South Carolina Unemployment Compensation Act. The
Employment Security Commission found that her restriction upon her
availability for Saturday work brought her within the provision
disqualifying for benefits insured workers who fail, without good
cause, to accept ``suitable work when offered by the employment office
or the employer.''
Procedural History
The Commission's finding was sustained by the Court of Common Pleas
for Spartanburg County. That court's judgment was in turn affirmed by
the South Carolina Supreme Court, which rejected Sherbert's contention
that, as applied to her, the disqualifying provisions of the South
Carolina statute abridged her right to the free exercise of religion
secured under the Free Exercise Clause of the First Amendment through
the Fourteenth Amendment.
Analysis
The Court laid out a test for analyzing Sherbert's Free Exercise
claim: for the government to succeed against Sherbert's constitutional
challenge, either ``her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free
exercise'' or ``any incidental burden on the free exercise of [her]
religion may be justified by a compelling state interest in the
regulation of a subject within the State's constitutional power to
regulate.'' Id. at 403 (cleaned up).
The Court first dealt with the question of whether the
disqualification for benefits imposed a burden on Sherbert's free
exercise of religion, holding that it clearly did. Ibid. Sherbert's
ineligibility for benefits ``derive[d] solely from the practice of her
religion'' and there was an ``unmistakable'' pressure upon her to
``forego that practice.'' Id. at 404. The government was forcing her
``to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the other hand.''
Ibid.
The Court next turned to whether some compelling state interest
would justify the substantial infringement of Sherbert's First
Amendment right. ``[N]o showing merely of a rational relationship to
some colorable state interest would suffice,'' the Court held: ``in
this highly sensitive constitutional area, only the gravest abuses,
endangering paramount interest, give occasion for permissible
limitation.'' Id. at 406 (cleaned up). And, even if a compelling
interest could be proffered, ``it would plainly be incumbent upon the
[government] to demonstrate that no alternative forms of regulation
would combat such abuses without infringing First Amendment rights.''
Id. at 407. Here, the government's proffered interest--the possibility
of spurious claims diluting the unemployment benefit fund and
disrupting the scheduling of work--was not compelling, nor had the
government shown its actions to be narrowly tailored to such interest.
Concurrences
Justice Douglas concurred to note the ``profound[] important[ce]''
of this case. Id. at 410. Specifically, because ``many people hold
beliefs alien to the majority of or society,'' the First Amendment
protects their free exercise of religion from being ``trod upon under
the guise of `police' or `health' regulations reflecting the majority's
views.'' Id. at 411.
Justice Stewart concurred in the result, believing the Court to
have not succeeded in ``papering over'' a ``double-barreled dilemma.''
Id. at 413. Specifically, because of the Court's case law on the Free
Exercise Clause and the Establishment Clause, ``there are many
situations where legitimate claims under the Free Exercise Clause will
run into head-on collision with the Court's insensitive and sterile
construction of the Establishment Clause.'' Id. at 414.
Dissent
Justice Harlan, joined by Justice White, dissented, believing the
majority's decision to be ``disturbing both in its rejection of
existing precedent and in its implications for the future.'' Id. at
418. The Court's holding ``necessarily overrule[d]'' prior precedent
and would mean that the State is ``constitutionally compelled to carve
out an exception to its general rule of eligibility,'' which would
create Establishment Clause problems. Id. at 421-23.
______

Wisconsin v. Yoder
406 U.S. 205 (1972)
Issue
Does the Free Exercise Clause protect members of the Amish
community against the requirement to send their children to high
school, if doing so would violate their genuinely-held religious
belief?
Holding
The Free Exercise Clause protects the Amish community's right to
remove their children from school after eighth grade and educate them
instead in the Amish religion and way of life.
Facts
Wisconsin required compulsory school attendance by law until the
age of 16. Members of the Amish religion refused to send their children
to public or private school after eighth grade, deciding instead to
provide them with informal vocational education designed to prepare
them for life in the Amish community, based on their sincere belief
that high school attendance was contrary to the Amish religion and way
of life. Several members of the Amish religion were convicted of
violating Wisconsin's compulsory school attendance law. The respondents
argued that the First and Fourteenth Amendments protected them against
the convictions.
Procedural History
The state trial court convicted the respondents of violating the
compulsory school attendance law, over respondents' First Amendment and
Fourteenth Amendment defenses. The Wisconsin Circuit Court affirmed the
convictions. But the Wisconsin Supreme Court reversed the convictions,
sustaining respondents' Free Exercise Clause claim.
Analysis
The question was whether the respondents' rights under the Free
Exercise Clause outweigh the state's interest in compelling school
attendance beyond eighth grade. Here, the Amish refusal to attend high
school was based on a sincere religious belief, and their religion
taught that entanglement and participation in secular life at that
point (in contrast to learning and living the Amish way of life) risked
endangering their souls. Thus the Wisconsin law affirmatively compelled
them to perform acts at odds with the fundamental tenets of their
religious beliefs.
The state's argument--that the First Amendment protects only
religious beliefs and not religious actions--was mistaken. And the fact
that this law applied to everyone similarly does not save the state's
case, because a neutral regulation may, in application, unduly burden
the free exercise of a particular religion. So the primary question
remained whether the stat's interest in education is so compelling that
the Amish religious practices must give way.
Here, the state had an interest in education. But the Amish did not
oppose the idea of educating their children; instead, they educated
them in a religious manner rather than a secular one. The state's
interest in educating Amish children in the particular way that the
state wanted, rather than in the way that the Amish wanted, was
considerably weaker than its interest in ensuring that they were
educated generally. The genuinely-held Amish beliefs outweighed the
state's interest.
Concurrences
Justice Steward, joined by Justice Brennan, concurred, noting that
Amish children were still legally allowed to attend high school if they
so chose.
Justice White, joined by Justices Brennan and Steward, concurred,
arguing that the case would be different if the religion prevented
children from attending any school at any time and prohibited
compliance with the educational standards set by the state.
Dissent
Justice Douglas dissented in part, arguing that the interests at
play here were not only those of the parents and of the state, but also
of the children, and that the child's own religious beliefs should
control the outcome.
______

Employment Division v. Smith
494 U.S. 872 (1990)
Issue
Whether the Free Exercise Clause of the First Amendment permits the
State of Oregon to include religiously inspired peyote use within the
reach of its criminal prohibition on use of that drug, and thus permits
the State to deny unemployment benefits to persons dismissed form their
jobs because of religiously inspired use.
Holding
The Free Exercise Clause did not prohibit application of Oregon's
drug laws to ceremonial ingestion of peyote and, thus, the State could
deny claimants unemployment compensation for work-related misconduct
based on the use of the drug, consistent with the Free Exercise Clause.
Facts
Two individuals were fired by a private drug rehabilitation
organization because they ingested peyote, a hallucinogenic drug, for
sacramental purposes at a ceremony of their Native American Church.
Their applications for unemployment compensation were denied by the
State of Oregon under a state law disqualifying employees discharged
for work-related ``misconduct.''
Procedural History
The Oregon State Court of Appeals reversed the denial of
unemployment compensation, holding that the denials violated the
individuals' First Amendment Free Exercise rights. The Oregon Supreme
Court affirmed. The United States Supreme Court vacated the judgment
and remanded for a determination of whether sacramental peyote use is
proscribed by Oregon's controlled substance law, otherwise refusing to
decide whether such use is protected by the Constitution. On remand,
the Oregon Supreme Court held that sacramental peyote use violated, and
was not excepted from, the state drug laws, but concluded that the
prohibition was invalid under the Free Exercise Clause.
Analysis
The Court held that, although a State would be prohibiting the free
exercise of religion if it sought to ban the performance of (or
abstention from) physical acts solely because of their religious
motivation, the Free Exercise Clause does not relieve an individual of
the obligation to comply with a law that incidentally forbids (or
requires) the performance of an act that his religious belief requires
(or forbids) if the law is not specifically directed to religious
practice and is otherwise constitutional as applied to those who engage
in the specified act for nonreligious reasons. The Court explained that
it had only held the First Amendment to bar application of a neutral,
generally applicable law to religiously motivated action when the cases
involved not just the Free Exercise Clause alone, but that Clause in
conjunction with other constitutional protections.
The Court further held that the individuals' claim for a religious
exemption from the Oregon law could not be evaluated under the
balancing test set forth in Sherbert and its progeny, whereby
governmental actions that substantially burden a religious practice
must be justified by a compelling governmental interest. The Court held
that that test was developed in a context--unemployment compensation
eligibility rules--that lent itself to individualized governmental
assessment of the reasons for the relevant conduct and was inapplicable
to an across-the-board criminal prohibition on a particular form of
conduct.
A contrary holding would create an extraordinary right to ignore
generally applicable laws that are not supported by a compelling
government interest on the basis of religious belief. Thus, the Court
held, although it is constitutionally permissible to exempt sacramental
peyote use from the operation of drug laws, it is not constitutionally
required.
Concurrence
Justice O'Connor (with whom Justices Brennan, Marshall, and
Blackmun joined as to part of the opinion) concurred in the judgment.
She believed that, although the result was correct, the Court's holding
``dramatically departs from well-settled First Amendment jurisprudence,
appears unnecessary to resolve the question presented, and is
incompatible with our Nation's fundamental commitment to individual
religious liberty.'' Id. at 891.
Dissent
Justice Blackmun, joined by Justices Brennan and Marshall,
dissented. He believed the majority opinion ``effectuate[d] a wholesale
overturning of settled law concerning the Religion Clauses of our
Constitution,'' most notably the precedents establishing that a state
statute that burdens the free exercise of religion ``may stand only if
the law in general, and the State's refusal to allow a religious
exemption in particular, are justified by a compelling interest that
cannot be served by less restrictive means.'' Id. at 907-08. The
dissent largely agreed with Justice O'Connor's concurrence, except that
it would have held the Free Exercise Clause was violated here.
______

Church of the Lukumi Babalu Aye, Inc. v. Hialeah
508 U.S. 520 (1993)
Issue
Whether city ordinances dealing with the ritual slaughter of
animals violated the Free Exercise Clause?
Holding
The ordinances were not neutral or generally applicable, and the
governmental interest assertedly advanced by the ordinances did not
justify the targeting of religious activity.
Facts
A church and its congregants practiced Santeria, which employs
animal sacrifice as one of its principal forms of devotion. After the
church leased land in the City of Hialeah and announced plans to
establish a house of worship there, the city council held an emergency
public session and passed several city ordinances: (1) a resolution
noting city residents' concern over religious practices inconsistent
with public morals, peace, or safety, and declaring the city's
commitment to prohibiting such practices; (2) an ordinance which
incorporated Florida animal cruelty laws that had been interpreted to
reach killings for religious reasons; (3) an ordinance which prohibited
the possession, slaughter, or sacrifice of an animal if it was killed
in ``any type of ritual,'' but exempting licensed food establishments;
(4) an ordinance prohibiting the sacrifice of animals; and (5) an
ordinance defining ``slaughter'' as the killing of animals for food and
prohibiting slaughter outside of areas zoned for slaughterhouses, with
a few minor exemptions.
Procedural History
The Church filed a suit under 42 U.S.C. Sec. 1983, alleging
violations of their rights under, inter alia, the Free Exercise Clause.
Although acknowledging that the ordinances were not religiously
neutral, the district court ruled for the City, concluding, among other
things, that compelling governmental interests in preventing public
health risks and cruelty to animals fully justified the absolute
prohibition on ritual sacrifice accomplished by the ordinances, and
that an exception to that prohibition for religious conduct would
unduly interfere with fulfillment of the governmental interest because
any more narrow restrictions would be unenforceable as a result of the
Santeria religion's secret nature. The court of appeals affirmed.
Analysis
The Court explained that Smith had held that a law that burdens
religious practice need not be justified by a compelling governmental
interest if it is neutral and of general applicability. Where such a
law is not neutral or not of general applicability, however, it must
undergo strict scrutiny: it must be justified by a compelling
governmental interest and must be narrowly tailored to advance that
interest. Neutrality and general applicability are interrelated, and
failure to satisfy one requirement is a likely indication that the
other has not been satisfied.
The Court held that the ordinances' texts and operation demonstrate
that they were not neutral, but had as their objection the suppression
of Santeria's central element: animal sacrifice. That religious
exercise was targeted was evidenced by the statements of concern and
commitment in the resolution, and by the use of the words ``sacrifice''
and ``ritual'' in the ordinances. Moreover, the ordinances were
gerrymandered to proscribe religious killings of animals by Santeria
church members but to exclude almost all other animal killings. They
also suppressed much more religious conduct than is necessary to
achieve their stated ends: the legitimate governmental interests in
protecting the public health and preventing cruelty to animals could be
addressed by restrictions stopping far short of a flat prohibition of
all Santeria sacrificial practice.
Further, each of the ordinances pursued the City's governmental
interests only against conduct motivated by religious belief and
thereby violated the requirement that laws burdening religious practice
must be of general applicability. The ordinances were substantially
underinclusive with regard to the City's interest in preventing cruelty
to animals, since they were drafted to forbid few animal killings but
those occasioned by religious sacrifice.
Finally, the ordinances could not withstand strict scrutiny because
they were overbroad and underinclusive in substantial respects, since
the proffered objectives were not pursued with respect to analogous
nonreligious conduct and the interests could be achieved by narrower
ordinances that burdened religion to a far lesser degree. Where, as
here, the government restricts only conduct protected by the First
Amendment and fails to enact feasible measure to restrict other conduct
producing substantial harm or alleged harm of the same sort, the
governmental interests given in justification of the restriction cannot
be regarded as compelling.
Concurrences
Justice Scalia (joined by Chief Justice Rehnquist) concurred in
part and concurred in the judgment. He did not join one section of the
opinion because ``it departs from the opinion's general focus on the
object of the laws at issue to consider the subjective motivation of
the lawmakers, i.e., whether the Hialeah City Council actually intended
to disfavor the religion of Santeria.'' Id. at 558.
Justice Souter concurred in part and concurred in the judgment,
writing that the case ``turns on a principle about which there is no
disagreement, that the Free Exercise Clause bars government action
aimed at suppressing religious belief or practice.'' Id. at 559. He
wrote separately, given the Court's reference to Smith in dicta, to
``explain why the Smith rule is not germane to this case and to express
[his] view that, in a case presenting the issue, the Court should re-
examine the rule Smith declared.'' Ibid.
Justice Blackmun (joined by Justice O'Connor) concurred in the
judgment. He disagreed with the Smith-based framework used by the
Court: ``I continue to believe that Smith was wrongly decided, because
it ignored the value of religious freedom as an affirmative individual
liberty and treated the Free Exercise Clause as no more than an
antidiscrimination principle.'' Id. at 578. He would have achieved the
same result by using the Sherbert balancing test.
______

Fulton v. City of Philadelphia
141 S. Ct. 1868 (2021)
Issue
Did the City of Philadelphia's refusal to contract with a religious
foster care agency unless it agreed to certify same-sex couples as
foster parents violate the Free Exercise Clause of the First Amendment?
Holding
The refusal of the City of Philadelphia to contract with the foster
care agency for the provision of foster care services unless the agency
agreed to certify same-sex couples as foster parents violated the Free
Exercise Clause of the First Amendment.
Facts
The City of Philadelphia enters standard annual contracts with
private foster care agencies to place children with foster families.
One of the responsibilities of the agencies is certifying prospective
foster families under state statutory criteria. Catholic Social
Services (CSS) contracted with the City to provide foster care services
for over 50 years. Because CSS believes that certification of
prospective foster families is an endorsement of their relationship, it
would not certify same-sex couples, given its religious belief that
marriage is a sacred bond between a man and a woman. Following press
coverage on the issue, the City informed CSS that unless it agreed to
certify same-sex couples, the City would no longer refer children to
the agency or enter a full foster care contract with it in the future.
The City explained that CSS's refusal to certify same-sex couples
violated both a non-discrimination provision in the agency's contract
with the City as well as the non-discrimination requirements of a
citywide Fair Practices Ordinance.
Procedural History
CSS and three affiliated foster parents filed suit seeking to
enjoin the City's referral freeze on the grounds that the City's
actions violated the Free Exercise and Free Speech Clauses of the First
Amendment. The district court denied preliminary relief, reasoning that
the contractual non-discrimination requirement and the Fair Practices
Ordinance were both neutral and generally applicable under Smith and
that CSS's Free Exercise claim was therefore unlikely to succeed. The
court of appeals affirmed.
Analysis
The Court held that the City's actions burdened CSS's religious
exercise by forcing it to either curtail its mission or to certify
same-sex couples as foster parents in violation of its religious
beliefs. The Court further held that this case fell outside of Smith
because the City had burdened CSS's religious exercise through policies
that do not satisfy the threshold requirement of being neutral and
generally applicable.
The Court held that a law is not generally applicable if it invites
the government to consider the particular reasons for a person's
conduct by creating a mechanism for individualized exemptions. Where
such a system of individual exemptions exists, the government may not
refuse to extend that system to cases of religious hardship without a
compelling reason. Here, the non-discrimination requirement of the
City's standard foster care contract was not generally applicable
because the contract permitted exceptions to the requirement at the
sole discretion of the Commissioner. Further, the Fair Practices
Ordinance did not apply to CSS's actions because foster care
certification is not ``made available to the public.''
Because the contractual non-discrimination requirement burdened
CSS's religious exercise and was not generally applicable, it was
subject to strict scrutiny. The question, the Court held, is not
whether the City has a compelling interest in enforcing its non-
discrimination policies generally, but whether it has such an interest
in denying an exception to CSS. Under the circumstances here, the City
did not have a compelling interest in refusing to contract with CSS:
CSS sought only an accommodation that would allow it to continue
serving the children of Philadelphia in a manner consistent with its
religious beliefs, rather than seeking to impose its beliefs on anyone
else.
Concurrences
Justice Barrett (joined by Justice Kavanaugh and, largely, Justice
Breyer) concurred. She noted that ``Petitioners, their amici, scholars
and Justices of this Court have made serious arguments that Smith ought
to be overruled.'' Id. at 1882. She saw ``no reason to decide in this
case whether Smith should be overruled, much less what should replace
it.'' Id. at 1883.
Justice Alito (joined by Justice Thomas and Justice Gorsuch)
concurred in the judgment. He would have reached the question of
whether Smith should be overruled, holding instead that Smith was
``fundamentally wrong and should be corrected.'' Ibid.
Justice Gorsuch (joined by Justice Thomas and Justice Alito) also
concurred in the judgment. He criticized the majority and Justice
Barrett's concurrence for believing there was ``no `need' or `reason'
to address the error of Smith today.'' Id. at 1926.
______

Trans World Airlines, Inc. v. Hardison
432 U.S. 63 (1977)
Issue
What is the scope of the ``reasonable accommodations'' that
employers must provide for religious employees under Title VII of the
Civil Rights Act?
Holding
An employer must make ``reasonable efforts to accommodate'' a
religious employee, but it does not need to bear any ``undue hardship''
to do so. The employer does not need to succeed in securing the
accommodation: they must simply make a clear effort to find a
compromise. In this case, the bona fide seniority system negotiated by
the union impeded the employer's ability to accommodate the religious
employee. This failure to accommodate, however, did not violate Title
VII because it would require the employer to bear an ``undue
hardship,'' defined as anything ``more than a de minimis cost.''
Facts
While working for Trans World Airlines (TWA), Hardison joined the
Worldwide Church of God, which required him to observe the Sabbath on
Saturdays. To avoid conflicts with his demanding work schedule,
Hardison transferred to a job that could accommodate his Sabbath.
Later, he transferred into another job that could not accommodate him
because he did not have sufficient seniority under the collective
bargaining agreement to modify his schedule. After considering several
accommodation options, Hardison and his supervisors could not find any
satisfactory solution, so he was discharged for insubordination after
refusing to report for work on Saturdays.
Procedural History
Hardison sued, arguing that TWA engaged in religious discrimination
when they fired him, violating Title VII of the Civil Rights Act, and
that his union failed to adequately represent him in the dispute.
Hardison lost in the district court but won in the Eighth Circuit. Both
courts agreed that Title VII's accommodation requirements were not an
unconstitutional establishment of religion. However, the Eighth Circuit
held that TWA did make reasonable efforts to accommodate Hardison
because it rejected several reasonable alternatives--``any one of which
would have satisfied its obligation without undue hardship.'' Id. at
76.
Analysis
The purpose of enacting Title VII was to ``eliminate discrimination
in employment; similarly situated employees are not to be treated
differently solely because they differ with respect to race, color,
religion, sex, or national origin.'' Id. at 71. Interpreting this
provision, the EEOC issued a guideline stating that an employer was
obligated ``to make reasonable accommodations to the religious needs of
employees . . . where such accommodations can be made without undue
hardship on the conduct of the employer's business.'' Id. at 72. A
similar definition was incorporated into the Civil Rights Act by
Congressional Amendment in 1972. None of these provisions defined the
extent of the accommodations that employers must provide, nor did they
clarify what was meant by ``undue hardship.''
The Court held that TWA made ``reasonable efforts to accommodate,''
and that the Eighth Circuit undersold its attempts to accomplish this
goal. Id. at 77. TWA met with the plaintiff, approved accommodations
for his observance of religious holidays, and authorized the union
steward to search for voluntary shift swaps. Even though they were
unsuccessful in finding swaps, TWA ``cannot be faulted for having
failed to work out a shift or job swap for Hardison.'' Id. at 79-80.
Though a collective bargaining agreement or a seniority system
cannot be used to intentionally discriminate against people, seniority
systems generally do not violate Title VII when they cause conflict
with religious observances. Seniority systems are meant to navigate
tensions between employees in advance, so allowing a religious person
to circumvent the seniority system would be unfair to more senior
employees. Because there was no evidence of discriminatory intention in
this case, the unequal treatment caused by the seniority system was
acceptable. For ``Hardison and others like him [to get] the days off
necessary for strict observance of their religion,'' TWA would have to
do so ``only at the expense of others who had strong, but perhaps
nonreligious, reasons for not working on weekends.'' Id. at 81. Because
Hardison could not find someone to willingly swap shifts, ``TWA would
have had to deprive another employee of his shift preference at least
in part because he did not adhere to a religion that observed the
Saturday Sabbath. Title VII does not contemplate such unequal
treatment.'' Id.
The Court noted that asking TWA to allow Hardison to work a four-
day week would have constituted an ``undue hardship.'' Because it would
have to replace Hardison with other employees at a premium rate, the
Court found that this requirement would ``involve unequal treatment of
employees on the basis of their religion.'' Id. at 84. ``To require TWA
to bear more than a de minimis cost in order to give Hardison Saturdays
off is an undue hardship.'' Id.
Dissent
Justice Marshall argued that this decision ``deals a fatal blow to
all efforts under Title VII to accommodate work requirements to
religious practices.'' Id. at 86. According to the majority, any
accommodation for religious observers is invalid because it requires
some ``unequal treatment'' of the religious person. But this is the
point of the statute. ``The accommodation issue by definition arises
only when a neutral rule of general applicability conflicts with the
religious practices of a particular employee.'' ``To [grant an
exemption from the neutral rule] will always result in a privilege
being `allocated according to religious beliefs,' unless the employer
gratuitously decides to repeal the rule in toto.'' Id. at 88.
The TWA did not face undue hardship, as their efforts to seek an
accommodation were insufficient. Furthermore, it is not reasonable to
say that ``one of the largest air carriers in the Nation'' would have
faced undue hardship by shuffling one person into this timeslot. Id. at
91. The ``singular advantage'' of the Court's opinion is to avoid a
constitutional challenge by not asking if requiring employers to incur
substantial costs to aid religious employees constitutes an
Establishment Clause violation. Id. at 89. Even though the
accommodations at issue in this case are relatively costless, the Court
still considers these to be too costly of a burden.
______

Groff v. DeJoy
600 U.S. ___, 2023 WL 4239256 (2023)
Issue
At what point does an employee's need for religious accommodations
impose an ``undue hardship on the conduct of [an] employer's
business,'' under Title VII of the Civil Rights Act of 1964?
Holding
An ``undue hardship'' under Title VII is shown when the need for
religious accommodations is ``substantial in the overall context of the
employer's business.'' Slip op. at 16-17. The Supreme Court's decision
in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), provided
contradictory definitions of the phrase ``undue hardship,'' and many
lower courts adopted a test defining an ``undue hardship'' as merely
``more than a de minimis cost.'' Groff, slip op. at 3. The Court
rejected this ``de minimis cost'' language. Instead, it requires
employers to show that required accommodations would incur
``substantial additional costs,'' contextually determined based on the
business's specific nature, size, and cost structure. This means that
an accommodation inciting hostility from coworkers or requiring minimal
organizational costs is not enough to constitute ``undue hardship''--it
must impact the business more substantially.
Facts
Gerald Groff, an Evangelical Christian, believes that he should not
work on Sundays for religious reasons. While working for the United
States Postal Service, he refused to deliver mail on Sundays. Despite
attempts at accommodations, USPS's memorandum governing Sunday
deliveries led to Groff being repeatedly disciplined for failing to
work on his Sabbath day.
Procedural History
Groff sued the Postmaster General under Title VII, alleging that
USPS could have accommodated his Sabbath practice ``without undue
hardship on the conduct of [USPS's] business.'' However, the Third
Circuit ruled against Groff, finding that the Supreme Court's decision
in Hardison controlled. Following Hardison, the court held that an
``undue hardship'' occurs when an employer must ``bear more than a de
minimis cost'' to accommodate an individual's religion. Id. at 174, n.
18. Because exempting Groff from work on his Sabbath created
impositions on his coworkers and workplace, the Third Circuit found
that the accommodations created an ``undue hardship.''
Analysis
The Court found that Hardison created confusion about what
constitutes an ``undue hardship.'' In Hardison, the Court focused most
of the opinion on the question of the seniority rights negotiated in a
collective bargaining agreement--not the definition of ``undue
hardship.'' The language defining this phrase as ``more than a de
minimis cost'' conflicted with other parts of the opinion that ``an
accommodation is not required when it entails substantial costs or
expenditures.'' Hardison, slip op. at 12 (internal quotation marks
omitted). Though some lower courts recognized the ``substantial costs''
definition of ``undue hardship,'' many others accepted the ``de minimis
cost'' definition.
To clarify the law, the Court held that proving an ``undue
hardship'' is more demanding than merely showing that a business
incurred ``more than de minimis cost.'' The ``common parlance'' meaning
of the phrase ``undue hardship'' suggests something ``more severe than
a mere burden.'' Id. at 16. A ``hardship'' is ``at a minimum, something
hard to bear,'' and ``the modifier `undue' means that the requisite
burden, privation, or adversity must rise to an `excessive' or
`unjustifiable' level.'' Id. Employers, then, may be required to bear
``substantial additional costs'' to accommodate their religious
employees. Id. at 17.
Though the parties disputed the best way to phrase the new test,
the Court emphasized that determining an ``undue hardship'' requires
the court to consider all relevant factors to the employer's
operations--including the details of requested accommodations, the size
of the employer's business, and the magnitude of the costs. The Court
leaves much of the EEOC's guidance on accommodations unaffected, but it
declines to ratify them wholesale. The guidelines are only useful
insofar as they help courts ``resolve whether a hardship would be
substantial in the context of an employer's business in the commonsense
manner that it would use in applying any such test.'' Id. at 19.
To prove an ``undue hardship,'' the employer must show more than
mere ``coworker impacts.'' If a religious person's accommodations
affect their coworkers, the only issues that are cognizable for ``undue
hardship'' analysis are those that impact the ``conduct of the
business.'' Id. at 19. Certain coworker conflicts, especially those
stemming from a coworker's animosity towards religion or religious
people, are off the table as evidence of undue hardship. As the Court
states, ``If bias or hostility to a religious practice or a religious
accommodation provided a defense to a reasonable accommodation claim,
Title VII would be at war with itself.'' Id. at 20.
Finally, an employer faced with a request must consider all
potential reasonable accommodations. It is not enough for an employer
to decide that they cannot force other employees to work overtime to
cover a religious Sabbath request. ``Faced with an accommodation
request like Groff's, . . . [c]onsideration of other options, such as
voluntary shift swapping, would also be necessary.'' Id. at 20.
Concurrence
Justice Sotomayor emphasizes that the core holding of Hardison
still stands, in part on grounds of stare decisis: an accommodation
that would ``deprive other employees of their seniority rights under a
collective-bargaining agreement'' or incur other substantial costs is
an ``undue hardship.'' Id. at 1 (Sotomayor, J., concurring).
______

Trinity Lutheran Church of Columbia, Inc. v. Comer
137 S. Ct. 2012 (2017)
Issue
Does the Free Exercise Clause of the First Amendment prevent a
government entity from denying a religious entity an otherwise-
available public benefit on account of its religious status?
Holding
The Free Exercise Clause requires that courts subject to strict
scrutiny a government action that denies publicly-available benefits to
an entity solely because of the entity religious character.
Facts
Missouri's Department of Natural Resources offered reimbursement
grants to nonprofits that installed playground surfaces made from
recycled tires (the ``Scrap Tire Program''). The Missouri Constitution
required that ``no money shall ever be taken from the public treasury .
. . in aid of any church, section or denomination of religion.'' The
Director of the Department of Natural Resources interpreted this to
mean that religious institutions were ineligible for participation in
the Scrap Tire Program. Trinity Lutheran Church Child Learning Center
was a Missouri preschool and daycare center that had merged with a
church and operated on church property. When Trinity Lutheran applied
to participate in the Scrap Tire Program to replace a gravel playground
with a rubber surface, Missouri denied the application on the grounds
that it denied all such applications from religious entities. Trinity
Lutheran would have received the benefit of the program but for the
fact that it was owned or controlled by a church.
Procedural History
Trinity Lutheran sued the Director of Missouri's Department of
Natural Resources, asserting free exercise claims and seeking
declaratory and injunctive relief. The district court dismissed Trinity
Lutheran's case and the Ninth Circuit affirmed.
Analysis
The Free Exercise Clause requires courts to use a strict scrutiny
analysis for any government action that discriminates based on
religious status. When a government denies publicly-available benefits
to an organization based on the organization's religious status, the
government thereby discriminates based on religious status; in other
words, the government discriminates on this basis and subjects itself
to strict scrutiny if it would give an entity a public benefit but for
its religious character. Trinity Lutheran and other religious
organizations have a right to participate in a government benefit
program ``without having to disavow its religious character.'' A prior
case (Locke v. Davey, 540 U.S. 712 (2004)) had allowed the government
to deny benefits based on what the recipient planned to do with those
benefits, including to use them for religious purposes; but here, the
government denied benefits based on what the recipient was--a religious
organization. A state subjects itself to strict scrutiny when it
effectively asks an organization to renounce its religious character in
order to be eligible for a public benefit.
Nor did the policy here withstand a strict scrutiny analysis. Here,
the state would need to show an interest ``of the highest order.'' But
the state's stated interest of avoiding Establishment Clause concerns
is insufficient and does not qualify as compelling. A state's interest
in avoiding Establishment Clause entanglements more thoroughly than the
Constitution requires is not an interest ``of the highest order'' that
would justify discriminating against religious entities. The policy is
unconstitutional.
Concurrences
Justice Thomas, joined by Justice Gorsuch, concurred and also would
overturn Locke to the extent that it had allowed ``even a mild kind''
of religious discrimination.
Justice Gorsuch, joined by Justice Thomas, concurred and offered
two qualifications. First, he doubted that the majority's distinction
between religious status and religious action would be workable in
practice, and also doubted whether the First Amendment allows this
distinction. Second, he wanted to clarify that the majority's holding
applied more broadly than merely to cases involving playground or other
child-related cases.
Justice Breyer concurred in the judgment, but emphasized that the
particular public benefit here would secure and improve the health and
safety of children, and thus was the type of government-provided
benefit to which religious entities should have access.
Dissent
Justice Sotomayor, joined by Justice Ginsburg, dissented and
emphasized that the majority's opinion ``profoundly changes that
relationship [between church and state]'' by holding that the
Constitution requires the government directly to fund a church. The
dissent argued that the majority's opinion weakened the country's
commitment to the separation of church and state. The dissent would
have held that the direct funding of a religious entity raised separate
Establishment Clause concerns, and thus state ``prophylactic rule[s]''
against the use of public funds for houses of worship were permissible
rather than unconstitutionally discriminatory.
______

Espinoza v. Montana Dep't of Revenue
140 S. Ct. 2246 (2020)
Issue
Does the Free Exercise Clause prohibit a state from applying a no-
aid provision that prevents religious schools from receiving funds from
a state-funded scholarship program?
Holding
The Free Exercise Clause does not allow a state to apply a no-aid
provision to schools such that religious schools would be prohibited
from receiving scholarship funds for which they would be eligible if
they had instead been secular schools.
Facts
The Montana Legislature created a program to grant tax credits for
donations to organizations that gave scholarships for private school
tuition. But the Department of Revenue also created ``Rule 1,'' which
prevented families from using the scholarships at religious schools, to
comply with the Montana Constitution's prohibition on government aid to
sectarian schools (the ``no-aid provision''). Rule 1 blocked three
mothers from using the scholarship funds for tuition at their
children's private Christian school.
Procedural History
The three mothers sued the Montana Department of Revenue in state
court, claiming that Rule 1 was based on a mistake of law, and also
that it discriminated against them based on their religious beliefs and
the religious views of their school. The district court enjoined Rule 1
and held that the rule had been based on a mistake of law
(specifically, that the Department had mistaken tax credits to apply to
the Montana Constitution's prohibition on funding for sectarian
schools). The Montana Supreme Court reversed, and held that the
department had exceeded its authority in promulgating Rule 1, that the
no-aid provision applied broadly in the absence of Rule 1, and that
therefore the no-aid provision prohibited the scholarship program from
existing at all--either to religious or nonreligious schools.
Analysis
The Free Exercise Clause requires courts to apply strict scrutiny
whenever a government prohibits otherwise-eligible recipients from
receiving a public benefit solely because of their religious status.
Here, the no-aid provision prevented religious schools from receiving
an otherwise-available public benefit (scholarship funds) solely
because of the religious character of the schools. The provision also
prevented parents from using the funds to send their children to
certain schools rather than others based entirely on the religious
status of the school in question. This case is about religious status
rather than religious action because the Montana Supreme Court had
applied the no-aid provision solely by reference to the school's
religious status; the case is unlike Locke v. Davey, 540 U.S. 712
(2004), because that case involved prohibition of funds for what was
the ``essentially religious endeavor'' of training a minister, whereas
this case involves a prohibition generally on funds going to schools
that happen to be religious.
Applying strict scrutiny, the majority held that the state's
interest in separating church and state ``more fiercely'' than the U.S.
Constitution requires ``cannot qualify as compelling in the face of the
infringement of free exercise here.'' (cleaned up). And the
Department's argument that the no-aid provision promoted religion
failed, because a religious infringement cannot be justified by the
state's view that the infringement instead advanced religious
interests. Moreover, the state's interest in public education was
underinclusive because that objective was only being pursued here as to
secular, rather than sectarian, institutions.
Finally, the state's argument that there was no violation here
because the state eliminated the scholarship program altogether also
failed. The legislature created the program and never ended it; rather,
a court eliminated the program pursuant to an unconstitutional
provision of law. The Montana Supreme Court's decision thus did not
rest on adequate and independent state law grounds, and required
reversal.
Concurrences
Justice Thomas, joined by Justice Gorsuch, concurred to argue that
the Court's interpretation of the Establishment Clause hampered free
exercise rights. The concurrence stated that overly-broad Establishment
Clause jurisprudence (including Locke) caused cases like this one to
arise, and thus thwarted rather than promoted equal treatment of
religion.
Justice Alito also concurred, writing separately to argue that a
law's original motivation should have no bearing on the present
constitutionality of that law.
Justice Gorsuch also concurred, writing separately to argue that
the majority's continued reliance on the distinction between religious
status and religious activity was not a tenable distinction.
Dissents
Justice Ginsburg, joined by Justice Kagan, dissented, arguing that
the Montana Supreme Court's elimination of the program in its entirety
results in equal treatment between religious and nonreligious schools,
thereby foreclosing a free exercise challenge.
Justice Breyer also dissented, joined in part by Justice Kagan, and
argued that the majority's view risked entangling states in
Establishment Clause conflicts, and that Locke controlled this case to
the opposite conclusion.
Justice Sotomayor also dissented, arguing that the majority had
decided a question not presented, and that its reasoning was wrong for
the same reason as its decision in Trinity Lutheran had been wrong.
______

Carson v. Makin
142 S. Ct. 1987 (2022)
Issue
Does state law violate the Free Exercise Clause when the state
provides a tuition-assistance program, but requires parents to use the
funds only on ``nonsectarian'' schools?
Holding
The Free Exercise Clause prohibits a state from operating a
tuition-assistance program that provides tuition assistance only to
nonsectarian schools. The principles of Trinity Lutheran and Espinoza
require this result; when a state provides a public benefit, such as
tuition assistance, it cannot limit this benefit based on the religious
nature of the entity that would receive the benefit. And a state cannot
avoid this conclusion simply by casting status-based discrimination as
activity-based discrimination.
Facts
Maine enacted a tuition-assistance program for parents who live in
a school district that lacks a secondary school, under which parents
designated their child's secondary school of choice and the school
district transmitted payments to that school to alleviate tuition
costs. But Maine limited these tuition assistance payments to
``nonsectarian'' schools. Several parents who lived in districts that
lacked a secondary school sought tuition assistance from the program to
send their children to private religious schools. But the Maine
Department of Education denied them tuition assistance because the
schools were sectarian.
Procedural History
The parents filed a Sec. 1983 action against Maine's Commissioner
of the Department of Education, alleging that the requirement violated
the U.S. Constitution's Free Exercise Clause, Establishment Clause, and
Equal Protection Clause of the Fourteenth Amendment. The district court
granted the Commissioner's motion for summary judgment. The First
Circuit affirmed, distinguishing the case from Espinoza on the grounds
that first, Maine barred the tuition based on the religious use of the
funds rather than on schools' religious status, and second, that Maine
had tried to provide a rough equivalent of the public-school education
that Maine is constitutionally permitted to keep secular.
Analysis
The Free Exercise Clause requires that courts impose strict
scrutiny on governmental decisions to exclude religious entities from
eligibility for otherwise-available public benefits. The Court stated
that, for the same reasons that the Court explained in Trinity Lutheran
and Espinoza, that principle applies to this case as well. Maine had
offered its citizens a public benefit in the form of tuition
assistance, under which religious schools were ineligible ``solely
because of their religious character.'' Thus the Court applied strict
scrutiny to the program.
Applying this strict scrutiny analysis, Maine needed to present
``interests of the highest order'' and actions that were ``narrowly
tailored'' in pursuit of those interests. Here, Maine's interest in
promoting stricter separation of church and state than the U.S.
Constitution requires is not a sufficient interest because a state's
``antiestablishment interest does not justify enactments that exclude
some members of the community from an otherwise generally available
public benefit because of their religious exercise.''
The majority disagreed with the First Circuit's attempts to
distinguish this case from Espinoza. First, the First Circuit's holding
that the private tuition funds were essentially public-education
equivalency was mistaken, both because the statute expressed no such
thing, and also because the private schools receiving tuition
assistance were substantially different (including different curricula
and teacher certifications) that were completely different from those
in public schools. The only substantial similarity was that they must
both be secular. And second, the First Circuit's holding that the
program involved ``religious action'' rather than ``religious status''
was mistaken, because neither Espinoza nor Trinity Lutheran held that
discrimination against ``religious action'' violated the Free Exercise
any less than those based on ``religious status.'' Locke v. Davey
turned on the fact that the recipient tried to use state funds for
training to join the clergy, which was effectively religious training;
no such facts applied here.
Dissents
Justice Breyer, joined by Justice Kagan and in part by Justice
Sotomayor, argued in dissent that the majority's focus on the Free
Exercise Clause effectively ignored the Establishment Clause and the
interplay between the two. As a result, the majority unreasonably
ignores a state's legitimate interest in avoiding entanglements with
the Establishment Clause. Moreover, neither Espinoza nor Trinity
Lutheran require this result.
Justice Sotomayor also dissented, arguing Trinity Lutheran and its
progeny have been wrongly decided, that the consequences of this line
of cases are substantial, and that the benefit at issue here is public
education which the Establishment Clause requires to be secular.
______

Locke v. Davey
540 U.S. 712 (2004)
Issue
When a State offers a scholarship for higher education, does the
Free Exercise Clause permit the State to exclude the scholarship funds
from being used to pursue a devotional theology degree?
Holding
The Free Exercise Clause permits a State to exclude scholarship
funds from being used to pursue a devotional theology degree, even if
the scholarship can be used to study any other topic.
Facts
Washington State established the Promise Scholarship Program to
help gifted students pay for postsecondary education expenses. But in
accordance with the Washington Constitution, students could not use
this state-funded scholarship to pursue a devotional theology degree.
Joshua Davey received the scholarship and chose to attend Northwest
College, a private Christian college, and decided to double major in
pastoral ministries and business administration. Pastoral ministries
was a devotional theological degree that was excluded under the Promise
Scholarship Program. Washington stopped sending Davey the scholarship
funds as a result.
Procedural History
Davey brought action in Federal district court to enjoin Washington
from refusing to award the scholarship funds, arguing that the denial
here violated the Free Exercise, Establishment, and Free Speech Clauses
of the First Amendment, as well as the Equal Protection Clause of the
Fourteenth Amendment. The district court denied Davey's request for a
preliminary injunction, and ruled against him on summary judgment.
The Ninth Circuit reversed, holding that Washington had singled out
religion for unfavorable treatment, and that under Lukumi the state's
antiestablishment concerns were not sufficiently compelling to support
the denial.
Analysis
This funding scheme comported with the First Amendment, because
although the State could permit the scholars to pursue a degree in
devotional theology, it was not required to permit recipients to pursue
such a degree. The court distinguished Lukumi because there, the
state's law sought to suppress particular practices in a specific
religion, whereas here, it created no sanctions for religions practice
and did not deny ministers the right to participate in the community.
Instead, the State had ``merely chosen not to fund a distinct category
of instruction.''
The Court held that training somebody to lead a congregation was
essentially a religious endeavor, and was as akin to a religious
calling as it was to an academic pursuit. The Washington Constitution
drew a more stringent line than that in the U.S. Constitution, but
here, the State had a strong antiestablishment interest, because the
State would be directly funding a religious vocation. And rather than
show hostility to religion, the program here permitted students to
attend religious schools. Davey's claims thus lacked the presumption of
unconstitutionality and therefore failed.
Dissents
Justice Scalia, joined by Justice Thomas, dissented, arguing that
Lukumi was irreconcilable with the result in this case. He argued that
when a State makes a public benefit generally available, the First
Amendment requires that this benefit is the baseline against which
burdens on religion are measured, so the State violates the law when it
denies the benefit based on religion. Here, by singling out religion as
the disfavored study, Washington effectively treated religious study to
a tax, and thereby violated the First Amendment.
Justice Thomas also dissenting, arguing that the study of theology
did not necessarily implicate religious devotion here; the definition
in the law also would deny the study of theology from the secular
perspective, but the litigants and the Court had interpreted it only to
deny the study from the religious perspective, and he dissented to that
extent.
______

City of Boerne v. Flores
521 U.S. 507 (1997)
Issue
Did Congress exceed the scope of its enforcement power under the
Fourteenth Amendment by passing the Religious Freedom Restoration Act
(RFRA)?
Holding
Under the enforcement authority conferred in Sec. 5 of the
Fourteenth Amendment, Congress can pass legislation to enforce
constitutional rights against the states. This broad enforcement power,
though, is limited to remedial legislation. By explicitly rejecting the
Supreme Court's holding in Employment Div., Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), RFRA represented a Congressional
effort to change the meaning of the Free Exercise Clause. Accordingly,
RFRA was not remedial. Congress exceeded the scope of its enforcement
power, rendering RFRA unconstitutional as applied to the states.
Facts
On behalf of a rapidly growing Catholic church in Boerne, Texas,
the Archbishop of San Antonio applied for a building permit to expand
the church's building. However, the Boerne City Council had designated
the area around the church as a historic district, preventing the
Archdiocese from modifying the building.
Procedural History
The Archbishop sued on several grounds, including the argument that
the historic district designation violated RFRA. The Western District
of Texas found that Congress had exceeded the scope of its enforcement
authority under Sec. 5 of the Fourteenth Amendment when it passed RFRA.
The Fifth Circuit reversed, holding that RFRA was constitutional.
Analysis
In Sherbert v. Verner, 374 U.S. 398 (1963), the Supreme Court held
that a generally applicable law that ``substantially burden[s] a
religious practice'' violates the Free Exercise Clause of the First
Amendment, so long as the burden is not ``justified by a compelling
state interest.'' Flores, 521 U.S. at 513. However, the Court changed
course in Employment Div. v. Smith. Because the Sherbert test creates
``a constitutional right to ignore neutral laws of general
applicability'' on the basis of religion, the Court advanced a bright
line rule: only laws that facially target religious practices violate
the Free Exercise Clause.
Congress passed RFRA to reinstate the Verner test, in opposition to
the Smith decision. RFRA prohibits both the Federal government and the
states from ``substantially burdening a person's exercise of religion
even if the burden results from a rule of general applicability.'' Id.
at 515. If a neutral law burdened religion, government would have to
demonstrate that the rule ``is in furtherance of a compelling
governmental interest'' and that it ``is the least restrictive means''
of advancing that interest. Id. at 515-16.
When passing RFRA, Congress relied upon Sec. 5 of the Fourteenth
Amendment, which enumerates the power to enforce the amendment ``by
appropriate legislation.'' Id. at 517. Though this enforcement power is
broad, it is not unlimited: it only extends to provisions that enforce
provisions of the Fourteenth Amendment. Put differently, it is a
``remedial,'' not substantive, power. Id. at 519. The Court
acknowledges that ``the line between measures that remedy . . .
unconstitutional actions and measures that make a substantive change in
the governing law is not easy to discern.'' Id. at 519. Nonetheless,
``the distinction exists and must be observed.'' Id. at 520.
Because RFRA ``alters the meaning of the Free Exercise Clause,'' it
``cannot be said to be enforcing [it].'' Id. at 519. The Court embraces
Employment Div. v. Smith as the controlling interpretation of the First
Amendment, so restoring the Sherbert test would contravene the meaning
of the First Amendment. ``Congress does not enforce a constitutional
right by changing what the right is.'' Id. at 519.
Furthermore, RFRA is not an exercise of remedial power because of
the incongruity between its means and ends. RFRA is ``so out of
proportion to a supposed remedial object that it cannot be understood
as responsive to, or designed to prevent, unconstitutional behavior.''
Id. at 532. Because RFRA affirms exemptions against neutral and
generally applicable laws, ``[s]weeping coverage ensures its intrusion
at every level of government, displacing laws and prohibiting official
actions of almost every description and regardless of subject matter.''
Id. Unlike the Voting Rights Act, which was specifically targeted
towards regions that had historically discriminated against racial
minorities, RFRA applies at all levels of the government--``a
considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and
welfare of their citizens.'' Id. at 534. As it will be ``difficult to
contest'' claims that religious exercise is burdened, Sherbert's
compelling interest test (``the most demanding test known to
constitutional law'') will make it so that ``many laws will not meet
the test.'' Id.
Ultimately, RFRA contradicts vital principles necessary to maintain
separation of powers and the Federal balance.'' Id. at 536. It does not
even provide ``a discriminatory effects or disparate-impacts test,''
because it would challenge ``numerous state laws, such as the zoning
regulations at issue here.'' Id. If Congress could pass RFRA, ``no
longer would the Constitution be `superior paramount law, unchangeable
by ordinary means.' It would be . . . alterable when the legislature
shall please to alter it.' '' Id. at 529.
Concurrences
Justice Stevens argued that RFRA violates the Establishment Clause
by privileging religious entities over nonreligious entities in the
face of neutral, generally applicable laws.
Justice Scalia argued that the historical record supported the
Court's Smith decision, permitting this case to proceed under the
assumption that Smith provides the correct view of the First Amendment.
Dissents
Justice O'Connor agreed that the appropriate question is whether
RFRA is an appropriate use of Congress's Sec. 5 enforcement power under
the Fourteenth Amendment. However, she argued that Smith misinterprets
the Free Exercise Clause. As such, it cannot be used as a yardstick to
evaluate the constitutionality of RFRA. ``The Free Exercise Clause is
not simply an antidiscrimination principle that protects only against
those that laws that single out religious practice for unfavorable
treatment.'' Id. at 46 (O'Connor, J., concurring). The historical
record of the American founding supports the view that the Clause
guarantees ``the right to participate in religious practices and
conduct without impermissible governmental interference, even when such
conduct conflicts with a neutral, generally applicable law.'' Id.
Accordingly, the Court should direct the parties to brief this issue
and reargue the case.
Justice Souter wanted to dismiss the writ of certiorari for this
case, as reconsideration of the Smith decision would be required before
reaching the enforcement power question.
Justice Breyer found the Smith question to be essential. Therefore,
reaching the question about Section Five of the Fourteenth Amendment
was unnecessary.
______

Burwell v. Hobby Lobby Stores, Inc.
573 U.S. 682 (2014)
Issues
Does a mandate requiring employers to provide contraceptive
services to its employees, in violation of the business owners'
sincerely held religious beliefs, run afoul of the Religious Freedom
Restoration Act of 1993 (RFRA)?
Holding
RFRA bars this mandate. Owners of for-profit companies do not
forfeit protections of their religious beliefs when they decide to
organize their business as a corporation. Under RFRA, the contraceptive
mandate outlined by the Department of Health and Human Services (HHS)
substantially burdened the exercise of religion by forcing business
owners to choose between millions of dollars in fines or violating
their religious beliefs. Though the HHS regulation likely serves the
compelling government interest of providing women with healthcare, it
is not the least restrictive means of serving that interest.
Facts
Under the Affordable Care Act of 2010 (ACA), employers with 50 or
more full-time employees were required to offer a group health
insurance plan that provides ``minimum essential coverage.'' Id. at
696. If they do not, they risked incurring heavy fines. As part of this
essential coverage, employers had to provide women with ``preventive
care and screenings'' without ``any cost sharing requirements,''
defined to include contraception. Id. at 697. Religious employers were
explicitly exempted from the contraception requirements, and certain
religious nonprofits are also implicitly exempted. Id. at 698.
The burdened businesses in this consolidated case were for-profit
corporations helmed by people whose religious beliefs dictate that life
begins at conception. The contraception mandate required them to
violate those beliefs by following the law, or incur fines in the
millions of dollars.
Procedural History
The businesses separately sued HHS under RFRA and the Free Exercise
Clause. Against Conestoga Wood Specialties, the Third Circuit denied a
motion for preliminary injunction, holding in a contested opinion that
``for-profit, secular corporations cannot engage in religious
exercise'' under RFRA or the First Amendment. Id. at 702. Against Hobby
Lobby, the Tenth Circuit granted a preliminary injunction, holding that
Hobby Lobby is a person under RFRA. Hobby Lobby had established a
likelihood of success on their RFRA claim because the mandate
substantially burdened their exercise of religion. Furthermore, HHS had
not demonstrated a compelling interest in enforcing the mandate against
Hobby Lobby.
Analysis
RFRA applies to ``a person's exercise of religion.'' Id. at 707
(internal quotation marks omitted). Here, the Court held that the
definition of a ``person'' includes corporations. Using a ``familiar
legal fiction,'' the Court argues that recognizing the protection of
the religious exercise of corporations ultimately ``provide[s]
protection for human beings.'' Id. at 706. Corporations cannot be
separated from the people who own, run, and work for them. Furthermore,
the Dictionary Act defines person expansively to include corporations,
and all parties conceded that a nonprofit corporation could be a
``person'' under the act. Id. at 708. Therefore, it logically follows
that a for-profit corporation should not be excluded.
Though HHS argued that corporations cannot exercise religion, the
Court found that they can. The fact that these businesses are for-
profit enterprises does not diminish religious liberty interests
implicated in the marketplace. For profit corporations engage in
activities beyond making money, and ``modern corporate law does not
require for-profit considerations to pursue profit at the expense of
everything else.'' Id. at 711-12. Furthermore, the line between
nonprofit and for-profit corporations is blurry, so the Court refuses
to interpret RFRA as requiring a distinction between the two.
RFRA does not precisely reconstruct the pre-Employment Division v.
Smith, 494 U.S. 872 (1990), legal landscape. Prior to Smith, no case
had explicitly held that a for-profit corporation has free exercise
rights. However, the text of the original RFRA and its amendment
through the Religious Land Use and Institutionalized Persons Act
(RLUIPA) are geared towards broadly protecting religious exercise, so
it does not follow that a for-profit corporation should necessarily be
excluded.
HHS argued that ascertaining the sincerity of a corporation's
religious belief would be difficult, but the Court disagreed. RLUIPA
demonstrates that Congress was ``confident in the ability of Federal
courts to weed out insincere claims.'' Id. at 718.
Given that RFRA applies, the Court then found that the HHS
contraceptive mandate ``substantially burden[s]'' the exercise of
religion. If business do not comply with the mandate, they will be
subjected to millions of dollars in fines. That burden cannot be
mitigated by any alternative cost structures or institutional
practices, as defying the mandate would force businesses to incur
either fines or excessive additional costs to provide healthcare for
their employees in accordance with the ACA.
HHS argued that the connection between providing health insurance
and destroying embryos is too attenuated to sustain a claim. However,
the Court held that making this inquiry would require courts to
impermissibly adjudicate religious and moral questions, which they do
not have the authority to do.
Finally, the Court held that the law is not the least restrictive
means by which to achieve the end of promoting public health. Because
the ``least-restrictive means standard is exceptionally demanding,''
the Court finds that it is not satisfied here. Id. at 728. The Federal
government could bear the costs of this policy more easily than
businesses. Alternatively, HHS could simply adopt its accommodation for
nonprofit organizations with religious objectives when considering for-
profit entities. The dissent argued that this would lead to businesses
falsely claiming substantial religious objections on many healthcare
requirements and employment practices. Nonetheless, the Court noted
that its holding is narrowed by its deference to compelling state
interests that limit burdens on religion as much as possible.
Concurrence
Justice Kennedy emphasized that for this case specifically, the
government's burden of accommodating religious liberty is not high
enough to justify placing such a substantial burden onto the employers.
Dissents
Justice Ginsburg argued that Smith should preclude the majority's
position. The Court is making RFRA far broader than it was otherwise
intended to be, striking down a broad range of otherwise valid statutes
with incidental costs for religious people.
Justices Breyer and Kagan separately dissented to note that the
Court did not need to decide the issue of whether for profit
corporations or their owners can bring claims under RFRA.
______

Holt v. Hobbs
574 U.S. 352 (2015)
Issues
Does the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA) prohibit a Muslim inmate from growing a beard in
accordance with his religious beliefs?
Holding
RLUIPA prohibits a state or local government from actions that
``substantially burden the religious exercise of an institutionalized
person unless the government demonstrates that the action constitutes
the least restrictive means of furthering a compelling governmental
interest.'' Id. at 356. The Arkansas Department of Corrections'
grooming policy substantially burdened the inmate's free exercise.
Furthermore, the grooming policy does not seem to be the least
restrictive means of furthering its governmental interest in
identifying prisoners and preventing the smuggling of contraband.
Facts
Gregory Holt (petitioner), also known as Abdul Maalik Muhammad,
wanted to grow a beard in keeping with his Muslim religious beliefs.
However, the Arkansas Department of Corrections had a grooming policy
that prohibits him, an inmate, from growing out his beard. Though his
beliefs required him not to trim the beard at all, he compromised by
offering to only grow a \1/2\-inch beard. Nonetheless, his request was
denied, and he was threatened with punishment from the prison system.
Procedural History
The District Court and the Eighth Circuit dismissed the
petitioner's pro se complaint. Though the District Court granted a
preliminary injunction, a Magistrate Judge recommended that the
preliminary injunction be vacated and that the claim be dismissed for
failure to state a claim. The Eighth Circuit briefly noted that the
grooming policy was the least restrictive means of furthering the
prison's compelling security interests, and that courts should
generally be deferential to the expertise of prison authorities.
Analysis
In contrast to the District Court, the Supreme Court held that the
policy burdened petitioner's sincere religious beliefs. No one disputes
that the petitioner's religious belief that his faith requires him to
grow a beard was sincere. Because the Department's policy requires him
to shave his beard, therefore, the policy ``puts petitioner to this
choice: between his religious beliefs and disciplinary action.'' Id. at
361.
The District Court committed three errors when finding that the
petitioner's free exercise was not burdened. First, it suggested that
the availability of other religious accommodations, like a prayer rug
and dietary accommodations, justified burdening this particular
religious exercise. Second, it said that the burden was only slight
because ``his religion would `credit' him for attempting to follow his
religious beliefs, even if that attempt proved to be unsuccessful.''
Finally, the District Court found that not all Muslim men believe that
they must grow beards. However, ``RLUIPA provides greater protection''
than even other lines of First Amendment cases, which consider
``alternative means of practicing religion'' as justifications for
burdening a religious exercise. Id. at 361-62. It covers beliefs that
are not shared by all members of a particular sect, and it applies to
exercises of religion that are important, even if not ``compelled'' by
a person's tradition.
Once the petitioner established that his religious exercise was
substantially burdened, the burden shifted to the Department of
Corrections to show 1) that its policy furthered a compelling
government interest, and 2) that it was the least restrictive means of
doing so.
The Department alleged two compelling interests that the grooming
policy protected, but the Court found neither of them to overcome
RLUIPA's demands. The compelling interest to prevent the smuggling of
contraband into the prison is important, but it ``is hard to take
seriously'' the idea that ``this interest would be seriously
compromised by allowing an inmate to grow a 1/2-inch beard.'' Id. at
363. Even if petitioner could somehow hide contraband in such a short
beard, the prison guards could search that beard just like they search
other inmates' hair and clothing. Thus, the grooming requirement is not
the least restrictive means of achieving security goals. Furthermore,
the Department has a compelling interest in preventing prisoners from
disguising their identities through shaving. However, the Court noted
that the prison can take photos of the petitioner with and without the
beard, in order to easily identify him in the even that he shaved to
escape detection. The fact that the prison allows some prisoners to
grow short beards for medical reasons further demonstrates that facial
hair does not raise a serious security concern.
Beyond this core analysis, the Court notes that ``the proffered
objective'' of limiting contraband and facilitating prisoner
identification are not equally pursued for ``analogous nonreligious
conduct.'' The grooming policy is underinclusive because it permits 1/
4-inch beards for some prisoners with medical needs. Additionally, it
differs from the ``vast majority of States and the Federal
Government,'' which permit growing facial hair for any reason. Id. at
368. To the Court, this line of argument suggests that the prison is
making the ``classic rejoinder of bureaucrats throughout history: If I
make an exception for you, I'll have to make one for everybody, so no
exceptions.'' Id. ``[W]hen so many prisons offer an accommodation, a
prison must, at a minimum, offer persuasive reasons why it believes
that it must take a different course.'' Id. at 369. The Department
fails to do so here.
Concurrences
Justice Ginsburg notes that accommodating these religious beliefs
would not harm those who do not share the prisoner's beliefs, which
distinguishes this case from Burwell v. Hobby Lobby Stores, Inc., 573
U.S. 682 (2014).
Justice Sotomayor emphasizes that the majority opinion does not
preclude deference to prison officials' policies, which would otherwise
restrict religious liberty, when they articulate better reasons for
doing so.
______

Mais v. Albemarle Cnty. Sch. Bd.
--F. Supp. 3d--, 2023 WL 2143471 (Feb. 21, 2023)
Issues
Does the Virginia Constitution's Free Speech Clause create a
sovereign-immunity waiver that opens the Commonwealth and its entities
to lawsuits?
Does the Virginia Human Rights Act create a sovereign-immunity
waiver that opens the Commonwealth and its entities to lawsuits?
Does the Virginia Constitution's Free Speech Clause support a cause
of action for wrongful discharge in violation of public policy?
Do allegations of a hostile anti-racism training program, in which
the plaintiff alleges that she was discriminated against for her race
and later precede her resignation, give rise to several Title VII
claims?
Holding
The Virginia Constitution's Free Speech Clause is not self-
executing for the purposes of this suit, nor did the legislature pass
accompanying legislation waiving sovereign immunity, so the clause does
not allow suit against the Commonwealth or its entities. Similarly, the
Virginia Human Rights Act lacks any sort of explicit sovereign immunity
waiver, and definitions provided in separate generally-applicable
legislation do not provide such a waiver. And the Virginia Constitution
does not serve as a basis for a wrongful discharge claim. But, the
plaintiff has alleged sufficient facts to allow her Title VII claims to
proceed.
Facts
Emily Mais worked as an assistant principal at a public elementary
school in Albemarle County, Virginia. In 2019 the School Board adopted
an anti-racism policy that required faculty to attend training that
defined ``racism'' and ``anti-racism,'' during which Mais relayed the
concerns of other teachers about the content of the training, and
complained that the training vilified white people. She also alleges
that she accidentally used the word ``colored'' instead of ``people of
color'' and was publicly chastised by the trainer. Mais alleges that
she continued to complain about ongoing content in the trainings, and
that the School Board ignored her complaints that the training was
undermining staff morale and causing racial tension to emerge. She
ultimately resigned in 2021, stating that her resignation was based on
her deteriorating physical and mental health as a result of the ongoing
strife in the anti-racism trainings.
Procedural History
Mais filed a Charge of Discrimination with the Virginia Attorney
General's Office of Civil Rights. The Office forwarded the charge to
the U.S. Equal Employment Opportunity Commission, which told her that
it would not process the Charge or proceed further with the
investigation. Mais filed in Federal district court, alleging ten
claims against the School Board, including violation of her free speech
rights under Article I, Sec. 12 of the Virginia Constitution (Count 1),
wrongful discharge in violation of public policy (Count 2), and several
violations under the Virginia Human Rights Act (``VHRA'') (Counts 3-6)
and Title VII (Counts 7-10). The School Board moved to dismiss these
claims.
Analysis
Several claims turned on sovereign immunity. The court observed
that pursuant to sovereign immunity, the Commonwealth is immune from
suit against its own consent. Typically, legislation must explicitly
waive sovereign immunity in order to allow suit against the
Commonwealth and its agencies. In addition, a constitutional provision
must either be self-executing or accompanied by associated legislation
that allowed a cause of action against the Commonwealth to allow suit
against the same.
Free Speech Claim under the Virginia Constitution
Mais argued that the School Board violated her free speech rights
under the Virginia Constitution, but the School Board responded that
the Commonwealth was immune from suit based on sovereign immunity. The
court held that, here, the provision is not self-executing (except to
challenge laws and ordinances), and lacks accompanying legislation that
would allow the suit. Thus, the School Board was immune from the free
speech claim.
VHRA Claims
Mais brought several claims under the VHRA, which prohibits an
employer from discriminating against an employee based on the
employee's race, and which allows lawsuits against people who
perpetuate that discrimination. The School Board argued that these
claims also were barred by sovereign immunity because the VHRA lacked
an explicit waiver of sovereign immunity.
The court agreed that the VHRA did not contain an express waiver of
sovereign immunity, and held that this fact meant the Commonwealth had
not waived sovereign immunity. Plaintiff's argument that the VHRA
should be read in conjunction with the definitions found in Virginia
Code Sec. 1-230 (which includes Commonwealth agencies in the definition
of ``person'') failed, because that statute is a statute of general
application that failed to provide a specific waiver of sovereign
immunity in the unrelated VHRA. Moreover, the court held that general
principles of statutory construction supported this outcome, because
the VHRA specifically defined ``employer'' (without including
Commonwealth agencies), so that definition prevails over the
generalized and separate definition in Code Sec. 1-230. Thus, the VHRA
did not contain a waiver of sovereign immunity, and Mais's VHRA claims
failed.
Wrongful Discharge in Violation of Public Policy
Mais alleged that the School Board had effectively discharged her
in violation of public policy. The court observed that several courts
had found that the Virginia Constitution could not serve as a basis for
a wrongful discharge claim. The court thus held that this claim failed
for the same reason.
Title VII Claims
Mais also alleged several violations of Title VII, which prohibits
employment discrimination based on ``race, color, religion, sex, or
national origin.'' The court held that Mais had alleged sufficiently
``severe or pervasive'' harassment to allow the racial hostile work
environment claim to proceed. The court also held that Mais's
allegations of race-based comments that caused her distress supported
her constructive discharge claim, and allowed it to proceed. Finally,
the court held that Mais had alleged protected activity--complaining
that the anti-racist training had created a hostile work environment
and that the School Board had discriminated against her--that could
plausibly have been the but-for cause of the hostile conduct and her
constructive discharge; thus her retaliatory hostile work environment
and retaliatory constructive discharge claims could proceed.
______

ATTACHMENT C
Appellate Brief-Writing 101: Effective Appellate Briefing for OAG
Attorneys
June 27, 2023 | 10:00 a.m.
Writing an Appellee Brief

OAG appellate writing is primarily as appellee

Good appellate brief-writing is good writing: clear,
concise, and well-organized

Appellee briefs should not primarily be responses to
the appellant brief: develop your own themes and arguments

Introductions

Include an introduction!

Introductions are important to orient the judge to the
key issues in the case

Introductions should set forth your key themes in a
clear and compelling way

How to identify key themes

Introductions are not summaries of argument

The key themes should drive your drafting decisions for
all parts of the brief

Statements of Facts

The goal is to emphasize your theme and tell a self-
contained story by the end of which the reader is on your
side.

The reader should know everything that matters on
appeal from reading your facts alone without ever picking
up another brief

Do not write a dry, neutral recitation

The facts are not part of a neutral bench memo, nor are
you creating a record digest for the court

Although the fact section must be accurate, cited to
the record/appendix, and fulfil your duty of candor, it is
just as much a persuasive part of the brief as your
argument section

Structure it in a logical fashion consistent with the
narrative and argument you are creating. Emphasize
favorable details while minimizing the role of unfavorable
facts without infringing your duty of candor

Avoid focusing on factual disagreements with the other
side

Avoid block quotes, especially lengthy exchanges with
witnesses. Quote only the most important language. Only the
rare case that turns around an exchange in a transcript
will merit extensive quoting from the transcript.

Assignments of Error/Framing the Issues

Because OAG typically represents the appellee, you
usually will not be drafting assignments of error but
rather responding to assignments presented by the appellant

You are not bound by how the appellant frames the
issues. Instead, frame your brief in the structure most
favorable for your position

Often appellants will present many assignments of
error, but the case is only about, say, two main issues.
Frame your brief around those two issues. Do not let the
other side's assignments of error dictate your structure.

In general, less is more--fewer issues make for a more
accessible brief.

In general, lead with your most favorable issue. The
topic the appellant addresses third may be the one you
should address first.

Because Virginia has relatively draconian waiver
rules, analyze the appellant's assignments of error for
potential waivers or defaults:

Is the assignment of error too vague to provide
adequate notice of the issue?

Do the arguments on brief fall within the assignments
of error?

Is any assignment of error inadequately briefed?

Do the assignments of error include adequate citation
to preservation in the record?

Does the assignment of error correctly identify the
lower court's alleged error? (I.e., on appeal to the SCV
from a CAV affirmance, did the CAV actually find that the
evidence at issue was hearsay, or did it find that issue
not preserved?)

Did the appellant change the wording/nature of the
assignments of error between designating them/the SCV
granting them and the merits briefing?

Arguments

Everything you say must be supported by the record and
case law

Your credibility is your most important asset--
especially as a government attorney

Cites are a critical part of a brief

Draft your argument section to advance your key themes

Your key arguments should be the most prominent, both
in placement and in how thoroughly you develop them

Accentuate the positive

Always keep your audience in mind

Appellate judges are generalists, and
typically will not have prior experience with your case

Explain your key points

Keep it simple: judge and clerks will have
limited time and attention for your case

Structure pointers

Generally, your strongest arguments should be first

Exceptions: jurisdictional arguments and
arguments that are logically antecedent

Affirmative arguments should come before counter-
arguments

Aim for simplicity in structuring the argument section

As a rule of thumb, you should generally
have between 2 and 4 main (roman numeral) argument sub-
sections

Style pointers: keep your drafting as clear as
possible

Break long units into subunits: shorter sentences,
paragraphs, and sections are easier for the reader to
follow

Refer to parties by name or trial-court designation,
not as ``appellant'' and ``appellee''

Minimize the use of acronyms

Minimize the use of footnotes

Minimize the use of block quotations

Block quotations should be used (very
sparingly) only to set forth key statutory language,
contractual text, etc.

There is never a good reason to block quote
case law

Show, don't tell

Avoid use of heated rhetoric, overly
pejorative or emotional language

Instead, explain why your position is
correct and the appellant's position is not

The Chair. Thank you, Mr. Ferguson. Ms. Holyoak, welcome,
and welcome to your family.

STATEMENT OF MELISSA HOLYOAK, NOMINEE TO BE A COMMISSIONER,
FEDERAL TRADE COMMISSION

Ms. Holyoak. Thank you. Chair Cantwell, Ranking Member
Cruz, and members of the Committee, thank you for holding the
hearing and for the opportunity to appear before you today. I
want to thank President Biden for nominating me to serve as
Commissioner on the Federal Trade Commission. I am deeply
humbled by this honor.
I also want to thank Leader McConnell for recommending me
to the President. I would also like to thank Senator Lee for
the introduction and kind words. I have been honored to work
with him and Utah's Federal delegation as Solicitor General for
Utah.
With me in the hearing room are my husband, Dr. Josh
Holyoak, and our children, Lucy, Jane, Henry, and Margot, while
my extended family and friends watch remotely. I want to thank
my family. None of this would be possible without their love
and support, particularly my husband's and my children's.
As a working mom of four, like Commissioner Slaughter, it
is not always easy, and I am so grateful for their patience,
sacrifices, and extra help to make our family work. My children
also provide me valuable perspective for the work that I would
be doing if I am fortunate enough to be confirmed.
The Committee and the FTC have worked diligently on issues
relating to children's privacy and safety online. Parenting can
be tough, and parenting children's online activity is
particularly challenging, especially when our kids seem to
understand the technology better than we do.
We must continually strive to protect our children,
especially as we encounter new challenges that can come from
technological advancements. I believe the FTC is uniquely
positioned to apply its statutory tools faithfully to confront
these challenges, stop bad actors, and educate parents on how
to protect their children. Of course, this is just one example
of the many important issues before the FTC.
The FTC's mission is to protect the public from deceptive
or unfair business practices and from unfair methods of
competitions through law enforcement, advocacy, research, and
education, and I am committed to protecting Americans from
those harms.
I would bring to the FTC nearly 20 years of litigation
experience, including in consumer protection and antitrust.
After graduating law school in 2003, I spent 5 years at the law
firm of O'Melveny & Myers focusing on commercial and financial
services litigation.
I later joined the Center for Class Action Fairness and
spent 8 years ensuring that consumers were the primary
beneficiaries of class action settlements.
The Center won hundreds of millions of dollars for
consumers. For the last 3 years, I have had the privilege of
serving as Solicitor General in the Office of the Utah Attorney
General. In that capacity, I oversee the criminal appeals,
civil appeals, Constitutional defense, and special litigation,
and antitrust and data privacy divisions.
Overseeing the office's antitrust efforts has allowed me to
collaborate with FTC staff in reviewing proposed merger
transactions, and I have been thoroughly impressed with the
commitment and passion of the FTC's experts. As Utah Solicitor
General, I have also played a leading role in holding companies
accountable when they engage in anti-competitive behavior that
harms consumers.
For example, I led our offices' work in Utah v. Google, an
antitrust lawsuit challenging Google's exclusionary conduct
relating to the Google Play Store and App Store for Android. We
recently announced a settlement with Google and 50 states, the
District of Columbia, and Puerto Rico.
This is a tremendous win for consumers. In addition, I have
led to amicus briefs filed by 35 states in a lawsuit against
Apple, alleging anti-competitive conduct relating to the iOS
App Store. I also supervise Utah's participation as a plaintiff
in antitrust lawsuits brought by multiple states, including New
York v. Meta, Colorado v. Google, and Texas v. Google.
The FTC has a consistent history of bipartisan
collaboration, which I hope to continue. The issues before the
FTC impact Americans' daily lives. At a time when Americans
need to stretch their dollar just a bit further, I am inspired
and committed to ensuring consumers are not harmed by unfair,
deceptive, or anti-competitive conduct.
Thank you. I look forward to your questions.
[The prepared statement and biographical information of Ms.
Holyoak follow:]

Prepared Statement of Melissa Holyoak, Nominee to be a Member,
Federal Trade Commission
Chair Cantwell, Ranking Member Cruz, and members of the Committee,
thank you for holding this hearing and for the opportunity to appear
before you today.
I want to thank President Biden for nominating me to serve as a
Commissioner on the Federal Trade Commission. I am deeply humbled by
this honor.
I would also like to thank Senator Lee for the introduction and
kind words. I have been honored to work with him and Utah's Federal
delegation as Solicitor General for Utah.
With me in the hearing room are my husband Dr. Josh Holyoak and our
children Lucie, Jane, Henry, and Margot, while my extended family and
friends watch remotely.
I want to thank my family. None of this would be possible without
their love and support, particularly my husband's and children's. As a
working mom of four, like Commissioner Slaughter, it is not always
easy, and I am so grateful for their patience, sacrifices, and extra
help to make our family work.
My children also provide me valuable perspective for the work that
I will be doing if I am fortunate enough to be confirmed. This
Committee and the FTC have worked diligently on issues relating to
children's privacy and safety online. Parenting can be tough. Parenting
children's online activity is particularly challenging, especially when
our kids seem to understand the technology better than we do.
We must continually strive to protect our children, especially as
we encounter new challenges that can come from technological
advancement. I believe the FTC is uniquely positioned to apply its
statutory tools faithfully to confront these challenges, stop bad
actors, and educate parents on how to protect their children.
Of course, this is just one example of the many important issues
before the FTC. The FTC's mission is to protect the public from
deceptive or unfair business practices and from unfair methods of
competition through law enforcement, advocacy, research, and education.
And I am committed to protecting Americans from these harms.
I would bring to the FTC nearly twenty years of litigation
experience including in consumer protection and antitrust. After
graduating law school in 2003, I spent five years at the law firm of
O'Melveny & Myers focusing on complex commercial and financial services
litigation. I later joined the Center for Class Action Fairness and
spent eight years ensuring that consumers were the primary
beneficiaries of class action settlements. The Center won hundreds of
millions of dollars for consumers.
For the last three years, I have had the privilege of serving as
Solicitor General in the Office of the Utah Attorney General. In that
capacity, I oversee the criminal appeals, civil appeals, constitutional
defense and special litigation, and antitrust and data privacy
divisions.
Overseeing the Office's antitrust efforts has allowed me to
collaborate with FTC staff in reviewing proposed merger transactions. I
have been thoroughly impressed with the commitment and passion of the
FTC's experts.
As Utah's Solicitor General, I have also played a leading role in
holding companies accountable when they engage in anticompetitive
behavior that harms consumers. For example, I led our Office's work in
Utah v. Google, an antitrust lawsuit challenging Google's exclusionary
conduct relating to the Google Play Store, an app store for Android. We
recently announced a settlement with Google and 50 states, the District
of Columbia, and Puerto Rico. This is a tremendous win for consumers.
In addition, I have led two amicus briefs filed by 35 states in a
lawsuit against Apple alleging anticompetitive conduct relating to the
iOS App Store. I also supervise Utah's participation as a plaintiff in
antitrust lawsuits brought by multiple states, including New York v.
Meta Platforms, Colorado v. Google, and Texas v. Google.
The FTC has a consistent history of bipartisan collaboration which
I hope to continue. The issues before the FTC impact Americans' daily
lives. At a time when Americans need to stretch their dollar just a bit
further, I am inspired and committed to ensuring consumers are not
harmed by unfair, deceptive, or anticompetitive conduct.
Thank you. I look forward to your questions.
______

a. biographical information
1. Name (Include any former names or nicknames used): Melissa Ann
Holyoak (nee Watkins).
2. Position to which nominated: Commissioner, Federal Trade
Commission.
3. Date of Nomination: July 11, 2023.
4. Address (List current place of residence and office addresses):

Residence: Information not released to the public.
Office: Utah Attorney General's Office, 350 N. State Street,
Suite 230, Salt Lake City, UT 84114.

5. Date and Place of Birth: October 6, 1976; Boise, Idaho.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).

Spouse: Joshua D. Holyoak, M.D., Urologist, Granger Medical
Clinic.

J.D., University of Utah S.J. Quinney College of Law, 2003
B.A., University of Utah, 2000

8. List all post-undergraduate employment, including the job title,
name of employer, and inclusive dates of employment, and highlight all
management level jobs held and any non-managerial jobs that relate to
the position for which you are nominated.

a. Utah Attorney General's Office, Solicitor General, Salt Lake
City, Utah (September 2020 to present). I oversee the civil
appeals, criminal appeals, constitutional defense and special
litigation, and antitrust and data privacy divisions; I
supervise approximately 40 attorneys. I also oversee multistate
litigation including matters involving consumer protection
claims.*

b. Hamilton Lincoln Law Institute, President and General Counsel,
Washington, D.C. (February 2019 to September 2020). I co-
founded a five-attorney public interest law firm engaged in
protecting consumers from class action abuse. I managed case
selection, litigation, and supervision of attorneys.*

c. Competitive Enterprise Institute (CEI), Senior Attorney,
Washington, D.C. (October 2015 to February 2019). I litigated
for CEI's Center for Class Action Fairness representing pro
bona class members from class action abuse.*

d. Center for Class Action Fairness, Senior Counsel and Corporate
Secretary, Washington, D.C. (July 2012 to October 2015). The
public interest firm was engaged in protecting consumers from
class action abuse; I represented pro bono class members from
class action abuse.*

e. Gunster, Yoakley & Stewart, P.A., Contract Attorney, West Palm
Beach, Florida (December 2010 to April 2012).

f. Holland & Knight LLP, Manager, Projects and Innovation,
Jacksonville, Florida (August 2010 to September 2011).*

g. City of Columbia Prosecutor's Office, Assistant Prosecutor,
Columbia, Missouri (May 2010 to November 2010).

h. KermaPartners, Consultant, New York, New York (May 2008 to May
2010).

i. O'Melveny & Myers, LLP, Associate, Washington, D.C. (September
2003 to April 2008).

j. U.S. Attorney's Office, Law Clerk, Salt Lake City, Utah (July
2001 to April 2002; October 2002 to May 2003).

k. Ray Quinney & Nebeker, Law Clerk, Salt Lake City, Utah (May 2002
to August 2002).

*Denotes management-level jobs and non-managerial jobs that relate
to the position for which I am nominated.
9. Attach a copy of your resume.
Please see Attachment A.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above after 18 years of age. None.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution.

Federal Bar Association, Salt Lake City Chapter (nonprofit)--
Treasurer (January 2023 to present); Board Member (February
2021 to present)

Federalist Society, Salt Lake City Chapter (nonprofit)--Board
Member (January 2019 to present)

Hamilton Lincoln Law Institute (nonprofit)--President and
General Counsel (February 2019 to September 2020)

Center for Class Action Fairness (nonprofit)--Corporate
Secretary (July 2012 to October 2015)

Children's Grove, Columbia, Missouri (local nonprofit
supporting emotional and mental health in youth through
education and arts programs)--Board Member (April 2017 to
December 2018)

Language Tree, Columbia, Missouri (local nonprofit French and
Spanish immersion preschool)--Board Member (June 2015 to
February 2018)

MorSupport, Columbia, Missouri (local nonprofit providing
emotional and logistical support to women with cancer)--Board
Member (April 2015 to March 2017)

Utah Bar--member (2003 to present)

D.C. Bar--member (2004 to present)

Missouri Bar--inactive member (2010 to present)

United States Supreme Court--member (2018 to present)

U.S. Court of Appeals for the Third Circuit--member (2022 to
present)

U.S. Court of Appeals for the Fifth Circuit--member (2006 to
present)

U.S. Court of Appeals for the Sixth Circuit--member (2005 to
present)

U.S. Court of Appeals for the Seventh Circuit--member (2014 to
present)

U.S. Court of Appeals for the Eighth Circuit--member (2015 to
present)

U.S. Court of Appeals for the Ninth Circuit--member (2012 to
present)

U.S. Court of Appeals for the Tenth Circuit--member (2020 to
present)

U.S. Court of Appeals for the Eleventh Circuit--member (2020 to
present)

U.S. Court of Appeals for the D.C. Circuit--member (2018 to
present)

U.S. District Court for the District of Columbia--member (2004-
2008; 2020 to present)

U.S. District Court for the Northern District of Illinois--
member (2007 to present)

U.S. District Court for the Western District of Missouri--
member (2016 to present)

U.S. District Court for the District of North Dakota--member
(2022 to present)

U.S. District Court for the Eastern District of Texas--member
(2006 to present)

U.S. District Court for the Northern District of Texas--member
(2023 to present)

U.S. District Court for the Southern District of Texas--member
(2006 to present)

U.S. District Court for the Western District of Texas--member
(2007 to present)

U.S. District Court for the District of Utah--member (2007 to
present)

Federal Bar Association--member (2021 to present)

Federalist Society--member (2016 to present)

Utah Republican Party--member (2020 to present)

Professional Republican Women of Utah--member (2022 to present)

Teneo Network--member (2023 to present)

Elwood L. Thomas American Inn of Court--member (2013)

Missouri Symphony Society--member (2016-2017)

West Broadway Swim Club--member (2009-2018)

Salt Lake Tennis & Health Club--member (2018 to present)

Fairview Elementary School Parent-Teacher Association
(Columbia, Missouri)--member (2013-2018)

Morningside Elementary School Parent-Teacher Association (Salt
Lake City, Utah)--member (2019 to present)

United States Tennis Association--member (2015 to present)

None of these groups restrict membership on the basis of sex, race,
color, religion, national origin, age, or disability.
13. Have you ever been a candidate for and/or held a public office
(elected, non elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.

Utah Republican Party--member (2020 to present); precinct chair
(2022 to present); state delegate (2022 to present).

15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $200 or more for the past ten years.

Jeff Gray, Utah County Attorney. I contributed $500 (3/24/2022)
and $1,000 (6/13/2022).
Liz Murrill, Louisiana Attorney General. I contributed $1,000
(10/6/2021) and $200 (11/9/2022).

16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.

Legal Elite 2022, Utah Business Magazine

S.J. Quinney College of Law
2003, Order of the Coif
2003, CALI Excellence for Future Award
Spring 2002, William H. Leary Scholar Award
Fall 2001, William H. Leary Scholar Award

Academic Year 2000-2001, William H. Leary Scholar Award

17. List each book, article, column, letter to the editor, Internet
blog posting, or other publication you have authored, individually or
with others. Include a link to each publication when possible. If a
link is not available, provide a digital copy of the publication when
available.
Please see Attachment B.
18. List all speeches, panel discussions, and presentations (e.g.,
PowerPoint) that you have given on topics relevant to the position for
which you have been nominated. Include a link to each publication when
possible. If a link is not available, provide a digital copy of the
speech or presentation when available.
Please see Attachment C.
19. List all public statements you have made during the past ten
years, including statements in news articles and radio and television
appearances, which are on topics relevant to the position for which you
have been nominated, including dates. Include a link to each statement
when possible. If a link is not available, provide a digital copy of
the statement when available.
Please see Attachment D.
20. List all digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the full name of an ``alias'' or ``handle'',
including the complete URL and username with hyperlinks, you have used
on each of the named platforms. Indicate whether the account is active,
deleted, or dormant. Include a link to each account if possible.

Facebook: https://www.facebook.com/melissaholyoak/ (active)

Instagram: @melholyoak (active)

LinkedIn: https://www.linkedin.com/in/melissa-holyoak-4b3650/
(active)

Twitter: @HolyoakMelissa (active)

Pinterest: @melissaholyoak (active)

a. Utah State Retirement Systems 401(k). I will continue to
participate in this defined contribution plan. The plan sponsor
will not make further contributions after my separation.

b. Competitive Enterprise Institute 403(b). I will continue to
participate in this defined contribution plan. The plan sponsor
will not make further contributions after my separation.

2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association, or other organization during your appointment? If so,
please explain. No.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
In connection with the nomination process, I have consulted with
the U.S. Office of Government Ethics and the Federal Trade Commission's
Designated Agency Ethics Official to identify potential conflicts of
interest. If confirmed, any potential conflicts of interest will be
resolved in accordance with the terms of the ethics agreement that I
have entered into with the Commission's Designated Agency Ethics
Official.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
I am not aware of any other potential conflicts of interest.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy. None.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, an Inspector General, professional association, disciplinary
committee, or other professional group? If yes:

a. Provide the name of court, agency, association, committee, or
group;

b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;

c. Describe the citation, disciplinary action, complaint, or
personnel action;

d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.
No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain. No.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain. No.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. No.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority?
If confirmed, I would work diligently with my fellow commissioners
to ensure compliance with deadlines and requests for information.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.
______

Attachment A

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

______

Attachment B
I have done my best to identify all books, articles, columns,
letters to the editor, Internet blog postings, or other publications I
have authored, either individually or with others, including through a
thorough review of personal files and searches of publicly available
electronic databases. Despite my searches, there may be other materials
I have been unable to identify, find, or remember. I have located the
following:

Melissa Holyoak, Vaccine Mandates in Utah Q&A, Utah Attorney
General's Office (Feb. 10, 2022), https://
www.attorneygeneral.utah.gov/vaccine-mandates-in-utah-q-a/

Katherine Robertson & Melissa Holyoak, Equal Rights in Name
Only, RealClearPolitics (Jan. 27, 2022), https://
www.realclearpolitics.com/articles/2022/01/27/
equal_rights_in_name_only_147099.html

Melissa Holyoak, Biden Makes a Delaware-Size Land Grab in Utah,
Wall Street Journal (Nov. 5, 2021), https://www.wsj.com/
articles/biden-makes-a-delaware-size-land-grab-in-utah-grand-
staircase-monument-11636141134

Melissa Holyoak, Landmark Ruling for Shareholders in Walgreens
Class Action Lawsuit, Hamilton Lincoln Law Institute (Aug. 11,
2016), https://hlli.org/landmark-ruling-for-shareholders-in-
walgreens-class-action-lawsuit/

Melissa Holyoak, Google Settlement: How Class Action Abuse
Gives Money to Attorneys and Third Parties, Leaving Consumers
with Nothing, Hamilton Lincoln Law Institute (Jan. 3, 2018),
https://hlli.org/google-settlement-how-class-action-abuse-
gives-money-to-attorneys/

Melissa Holyoak, Class Action Lawyers in Target Case Hoard the
Settlement Pie, Hamilton Lincoln Law Institute (Apr. 24, 2017),
https://hlli.org/class-action-lawyers-in-target-case-hoard-the-
settlement-pie/

Editorial Board Member, Guidelines and Best Practices
Implementing 2018 Amendments to Rule 23 Class Action Settlement
Provisions, Bolch Judicial Institute, Duke Law School (Aug.
2018), https://scholarship.law.duke.edu/cgi/
viewcontent.cgi?article=1003&context=bolch

Friedrich R. Blase et al., Project Management: Myths, Reality
and Why We Should Care, New York Law Journal Online (Oct. 17,
2011), https://www.law.com/newyorklawjournal/almID/
12025188l1511/

Melissa Holyoak, Scope of Public Policy Sources for an At-Will
Employee's Wrongful Termination Claim, 2001 Utah L. Rev. 1046
(2001), https://collections.lib.utah.edu/ark:/87278/s67t0sw4
______

Attachment C
*I have given numerous speeches, panel presentations, and other
public remarks in connection with my work as Utah Solicitor General.
Very few of my public remarks have been relevant to the position to
which I have been nominated. The following is the most complete list I
have been able to compile of my speeches and public remarks.

Moderator, ``Discussion of District Priorities with Trina
Higgins, U.S. Attorney, USAO Utah, and Scott A. Wilson, Federal
Public Defender, FPD Utah,'' Utah Chapter of the Federal Bar
Association, 2023 Dee Benson Criminal Law Seminar, U.S.
District Court for the District of Utah, Salt Lake City, Utah
(June 29, 2023), remarks unavailable.

Remarks discussing Utah v. EPA ozone transport litigation, Utah
State Legislature, Public Utilities, Energy, and Technology
Interim Committee (June 14, 2023), https://le.utah.gov/av/
committeeArchive.jsp?mtgID=18874

Remarks discussing Utah v. EPA ozone transport litigation, Utah
State Legislature, Federalism Commission (June 12, 2023),
https://le.utah.gov/av/commit
teeArchive.jsp?mtgID=18938

Panelist, ``SEC Regulations and Lawsuits,'' Republican
Attorneys General Association, Summer National Meeting,
Nashville, Tennessee (June 6, 2023), remarks unavailable.

Remarks discussing public lands resource management plans, Utah
State Legislature, Federalism Commission (May 30, 2023),
https://le.utah.gov/av/commit
teeArchive.jsp?mtgID=18915

Remarks discussing Utah v. EPA ozone transport litigation, Utah
Association of Counties, Management Conference, Salt Lake City,
Utah (Apr. 28, 2023), remarks unavailable.

Introduction of Pro Bono Award Recipient R. Blake Hamilton,
Utah Chapter of the Federal Bar Association, Annual Awards
Dinner, Salt Lake City, Utah (Apr. 20, 2023), remarks
unavailable.

Remarks and discussion regarding public lands litigation, San
Juan County Commission, Monticello, Utah (Apr. 18, 2023),
https://mccmeetings.blob.core.
usgovcloudapi.net/sanjuancut-pubu/MEET-Minutes-
6d9500c67b41496f8a7100e
135169bla.pdf, remarks unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Garfield County v. Biden national monuments
litigation, Utah v. EPA ozone transport litigation, Utah v. DOL
ERISA ESG rule litigation, Salt Lake County Republican Party,
Organizing Convention, Salt Lake City, Utah (Mar. 11, 2023),
remarks unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Garfield County v. Biden national monuments
litigation, Utah v. EPA ozone transport litigation, Utah v. DOL
ERISA ESG rule litigation, Davis County Republican Party,
Lincoln Day Dinner, Layton, Utah (Mar. 4, 2023), remarks
unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Garfield County v. Biden national monuments
litigation, Utah v. EPA ozone transport litigation, Utah v. DOL
ERISA ESG rule litigation, Washington County Republican Party,
Lincoln Day Dinner, St. George, Utah (Feb. 18, 2023), remarks
unavailable.

Panelist discussing Utah v. EPA ozone transport litigation and
Utah v. DOL ERISA ESG rule litigation, Republican Attorneys
General Association, Winter National Meeting, New Orleans,
Louisiana (Feb. 13, 2023), remarks unavailable.

Panelist discussing Utah v. DOL ERISA ESG rule litigation,
Western Caucus Foundation, remote presentation (Feb. 10, 2023),
remarks unavailable.

Remarks discussing role of the Utah Attorney General's Office
and state litigation, Utah Federation of Republican Women, Salt
Lake City, Utah (Feb. 3, 2023), remarks unavailable.

Remarks discussing Dobbs v. Jackson Women's Health
Organization, Utah Attorney General's Youth Advisory Committee,
Salt Lake City, Utah (Dec. 14, 2022), remarks unavailable.

Panelist discussing multistate litigation, Republican Attorneys
General Association, Fall National Meeting, Charleston, South
Carolina (Nov. 13, 2022), remarks unavailable.

Panelist, ``What is the Equal Access to Justice Act?,'' 2022
Uintah Basin Energy Summit, Vernal, Utah (Oct. 28, 2022),
https://www.youtube.com/watch?v=8g
N1NvCm99g

Panelist, ``Labor and Big Tech in 2022 and Beyond,'' 2022 Lee
E. Teitelbaum Utah Law Review Symposium--The New Roaring
Twenties: The Progressive Agenda for Antitrust and Consumer
Protection Law, University of Utah S.J. Quinney College of Law,
Salt Lake City, Utah (Oct. 21, 2022), https://www.youtube.com/
watch?v=1LF-XjUNhIY

Introduction of Magistrate Judge Paul Kohler, Utah Chapter of
the Federal Bar Association, Ronald Boyce Seminar, Salt Lake
City, Utah (Oct. 20, 2022), remarks unavailable.

Panelist, ``Alphabet Soup Agencies: Comments and Strategies,''
Rule of Law Defense Fund, Miami, Florida (Oct. 6, 2022),
remarks unavailable.

Remarks discussing EPA's proposed ozone transport rule, Utah
State Legislature, Public Utilities, Energy, and Technology
Interim Committee (Sept. 21, 2022), https://le.utah.gov/av/
committeeArchive.jsp?mtgID=18278

Panelist, ``Supreme Court Roundup,'' Federalist Society, Reno
Lawyers Chapter, Reno, Nevada (Sept. 13, 2022), remarks
unavailable.

Guest Lecture, ``Role of the State Solicitor General,'' BYU Law
School, Appellate Brief Writing, Provo, Utah (Sept. 12, 2022),
remarks unavailable.

Panelist, ``Supreme Court Roundup,'' Federalist Society, Baton
Rouge Lawyers Chapter (Sept. 8, 2022), https://
www.facebook.com/centralcitynews.us/videos/federalist-society-
update-on-supreme-term/3l777369721504l/

Remarks discussing Ohio v. OSHA vaccine mandate litigation,
Utah Society for Human Resource Management, Work Elevated
Conference, Lehi, Utah (Aug. 31, 2022), remarks unavailable.

Welcome Remarks, First Liberty Institute, National Leaders
Summit, Park City, Utah (July 14, 2022), remarks unavailable.

Panelist, ``Challenging Crisis Overreach in the Courts,''
Competitive Enterprise Institute, Policy Summit, Santa Fe, New
Mexico (June 24, 2022), remarks unavailable.

Panelist, ``Issues Facing Women in the Law,'' Center for Law &
Policy, Women's Summit, Palm Beach, Florida (June 17, 2022),
remarks unavailable.

Video, ``Vaccine Mandates,'' Utah Attorney General's Office,
Legally Speaking Podcast (June 7, 2022), https://
www.youtube.com/watch?v=RAmpbX8eMb0

Remarks discussing career and leadership opportunities, Junior
Achievement Program, Edison Elementary School, Salt Lake City,
Utah (May 19, 2022), https://youtube/x1GoKeq8tEw, remarks
unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Louisiana v. Biden oil and gas leasing litigation and
Ohio v. OSHA vaccine mandate litigation, Davis County
Republican Convention, Farmington, Utah (Mar. 26, 2022),
remarks unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Louisiana v. Biden oil and gas leasing litigation and
Ohio v. OSHA vaccine mandate litigation, Morgan County
Republican Convention, Morgan, Utah (Mar. 26, 2022), remarks
unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Louisiana v. Biden oil and gas leasing litigation and
Ohio v. OSHA vaccine mandate litigation, Weber County
Republican Convention, Pleasant View, Utah (Mar. 26, 2022),
remarks unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Louisiana v. Biden oil and gas leasing litigation and
Ohio v. OSHA vaccine mandate litigation, Cache County
Republican Convention, North Logan, Utah (Mar. 26, 2022),
remarks unavailable.

Remarks providing update for Utah Attorney General Sean Reyes
regarding Louisiana v. Biden oil and gas leasing litigation and
Ohio v. OSHA vaccine mandate litigation, Box Elder County
Republican Convention, Brigham City, Utah (Mar. 26, 2022),
remarks unavailable.

Video, ''What is the Utah Solicitor General?'' Utah Attorney
General's Office, Salt Lake City, Utah (Mar. 23, 2022), https:/
/m.facebook.com/UtahAttorney
General/videos/people-often-ask-what-is-a-solicitor-general-
utahs-solicitor-general-melissa-hol/1008782116704405/

Panelist, ''Appellate Brief Writing & Practice Tips,'' Utah
State Bar, Appellate Practice Section, remote presentation
(Mar. 22, 2022), remarks unavailable.

Remarks discussing Ohio v. OSHA vaccine mandate litigation,
International Association of Venue Managers, Utah Chapter
Workshop, West Valley City, Utah (Feb. 22, 2022), remarks
unavailable.

Guest Lecture, ''Role of the State Solicitor General,'' George
Mason University Antonin Scalia Law School, Attorney General
Authorities, remote presentation (Feb. 15, 2022), remarks
unavailable.

Remarks discussing appropriation requests, Utah State
Legislature, Utah Executive Appropriations Committee (Feb. 10,
2022), https://le.utah.gov/MtgMin
utes/publicMeetingMinutes.jsp?Com=APPEXE&meetingId=17968

Welcome Remarks, 2022 Utah Trafficking in Persons Task Force
(UTIP) Conference, remote presentation (Jan. 26, 2022), remarks
unavailable.

Panelist, ''Supreme Court Midterm Review,'' Republican
Attorneys General Association, Winter National Meeting,
Orlando, Florida (Jan. 25, 2022), remarks unavailable.

Remarks discussing Ohio v. OSHA vaccine mandate litigation,
Utah Attorney General's Youth Advisory Committee, Salt Lake
City, Utah (Jan. 12, 2022), remarks unavailable.

Remarks discussing Ohio v. OSHA vaccine mandate litigation,
Liberty Forum, Provo, Utah (Jan. 12, 2022), remarks
unavailable.

Panelist, ``Utah Supreme Court Review,'' Federalist Society,
Brigham Young Student Chapter, remote presentation (Jan. 11,
2022), remarks unavailable.

Guest Lecture, ``Role of the State Solicitor General,''
University of Utah, Mechanical Engineering Law and Contracts,
Salt Lake City, Utah (Dec. 1, 2021), remarks unavailable.

Guest Lecture, ``Role of the State Solicitor General,'' Ensign
College, American Government, Salt Lake City, Utah (Nov. 15,
2021), remarks unavailable.

Panelist, ``Work Different: Finding the opportunities that
match your priorities,'' Federalist Society, National Lawyer's
Convention, Washington, D.C. (Nov. 12, 2021), remarks
unavailable.

Panel, ``Privacy for and from the Digital Person,'' Federalist
Society National Symposium on Law and Technology, Stanford
Constitutional Law Center (Oct. 18, 2021), https://fb.watch/i-
sPwUOYzF/

Remarks regarding OSHA vaccine mandate, Utah State Legislature,
Business and Labor Interim Committee (Oct. 4, 2021), https://
le.utah.gov/MtgMinutes/
publicMeetingMinutes.jsp?Com=INTBUS&meetingId=17778

Panelist, ``Public Lands & Federal Policy,'' 2021 Uintah Basin
Energy Summit, Vernal, Utah (Sept. 28, 2021), https://
www.youtube.com/watch?v=fBjX0m6c4i4

Remarks discussing ARPA tax mandate litigation, Utah State
Legislature, Revenue and Taxation Interim Committee (June 16,
2021), https://le.utah.gov/MtgMinutes/
publicMeetingMinutes.jsp?Com=INTREV&meetingId=17690

Presentation, ``Thorny Issues in Religious Liberty Cases,'' J.
Reuben Clark Law Society, Salt Lake Chapter, remote
presentation (Mar. 16, 2021), remarks unavailable.

Remarks discussing HB220 pretrial detention amendments, Utah
State Legislature, Senate Government Operations and Political
Subdivisions Standing Committee (Mar. 2, 2021), https://
le.utah.gov/MtgMinutes/publicMeetingMinutes
.jsp?Com=SSTGOP&meetingId=17605

Remarks discussing SB171 pretrial detention revisions, Utah
State Legislature, Senate Judiciary, Law Enforcement, and
Criminal Justice Standing Committee, (Feb. 23, 2021), https://
le.utah.gov/MtgMinutes/publicMeetingMinutes.jsp?Com
=SSTJLC&meetingId=17533

Debate, ``A Conservative Case for Class Action: A Debate!''
Federalist Society, Salt Lake City Lawyers Chapter, Salt Lake
City, Utah (Feb. 4, 2020) (debating Professor Brian T.
Fitzpatrick), remarks unavailable.

Video, ``Frank v. Gaos: CEI Fighting to Protect Consumers from
Greedy Attorneys,'' Competitive Enterprise Institute (Oct. 18,
2018), https://www.youtube
.com/watch?v=VBexmu7czqc

Panelist discussing Frank v. Gaos, CEI Alfred Kahn Discussion
Series, Washington, D.C. (Oct. 17, 2018), remarks unavailable.

Panelist, ``The Class Action Settlement Problem,'' CEI Policy
Summit, Key West, Florida (Jan. 2018), remarks unavailable.

Speaker, ``Class Action Litigation Reform: Are Class Action
Settlements Structured to Benefit Class Counsel at the Expense
of the Class?'' Federalist Society, Salt Lake City Lawyers
Chapter, Salt Lake City, Utah (Feb. 3, 2017), remarks
unavailable.

Panelist, ``Compensation of Objectors,'' Duke Law Center for
Judicial Studies, Class Action Settlements Conference, San
Diego, California (Oct. 6, 2016), remarks unavailable.

Panelist, ``Commercial Class Actions: Hot Topics, Trends and
Settlement Fairness,'' Federal Bar Association Chicago Chapter,
Chicago, Illinois (Feb. 23, 2016), remarks unavailable.
______

Attachment D
I have done my best to identify all public statements I have made
over the past ten years, including statements in news articles and
radio and television appearances, which are on topics relevant to the
position for which I have been nominated, including through a thorough
review of personal files and searches of publicly available electronic
databases. Despite my searches, there may be other materials I have
been unable to identify, find, or remember. I have located the
following:

1. KSL Radio Interview, The Not So Good Neighbor Rule Utah is
Fighting, Inside Sources with Boyd Matheson (Mar. 22, 2023),
https://omny.fm/shows/inside-sources-with-boyd-matheson/the-
not-so-good-neighbor-rule

2. Lindsay Aerts, Utah AG claims ESG or 'climate investing'
contributed to SVB collapse, KSL News Radio (Mar. 22, 2023),
https://kslnewsradio.com/1994977/utah-ag-claims-esg-or-climate-
investing-contributed-to-svb-collapse/

3. Press Release, Office of Attorney General; Utah Solicitor
General Signs Women's Bill of Rights Pledge, Utah Attorney
General's Office (Sept. 1, 2022), https://
attorneygeneral.utah.gov/utah-solicitor-general-signs-womens-
bill-of-rights-pledge/

4. Ben Winslow, Utah sues the feds over Bears Ears, Grand
Staircase-Escalante national monument boundaries, Fox13 News
(August 24, 2022), https://www.fox13now.com/news/local-news/
utah-sues-the-feds-over-bears-ears-grand-staircase-escalante-
national-monument-boundaries

5. Press Release, AGO Asks SCOTUS to Protect Consumers, Utah
Attorney General's Office (July 19, 2022), https://
attorneygeneral.utah.gov/ago-asks scotus-to-protect-consumers/

6. Press Release, Supreme Court Rule EPA Overstepped its Authority
in Regulating Nation's Electricity Grid, Utah Attorney
General's Office (June 30, 2022), https://
attorneygeneral.utah.gov/supreme-court-rules-epa-overstepped-
its-authority-in-regulating-nations-electricity-grid/

7. Bryan Schott, Utah AG's office wants $2 million annually to sue
the Federal government, Salt Lake Tribune (Feb. 11, 2022),
https://www.sltrib.com/news/politics/2022/02/11/utah-ags-
office-wants/

8. Ariane de Vogue & Ladd Egan, Utah joins appeal asking Supreme
Court to block large employer vaccine mandate, KSL5 TV (Dec.
20, 2021), https://ksltv.com/479614/utah-joins-appeal-asking-
supreme-court-to-block-large-employer-vaccine-mandate/

9. Ben Winslow, Utah expected to sue over Biden's monument
proclamations, Fox13 News (Oct. 8, 2021), https://
www.fox13now.com/news/local-news/utah-expected-to-sue-over-
bidens-monument-proclamations; Zak Podmore, What does Biden's
national monuments decision mean for legal challenges to the
Antiquities Act?, Salt Lake Tribune (Oct. 11, 2021), https://
www.sltrib.com/news/environment/2021/l0/11/what-does-bidens-
national/

10. Press Release, Utah Defends Indian Child Welfare Act
Protections, Utah Attorney General's Office (Oct. 8, 2021),
https://attorneygeneral.utah.gov/icwa-protections/; Ben
Winslow, Utah sides with tribes asking to uphold Indian Child
Welfare Act, Fox13 News (Oct. 8, 2021), https://
www.fox13now.com/news/local-news/utah-sides-with-tribes-asking-
to-uphold-indian-child-welfare-act

11. The Federalist Society, Member Profile, The Federalist Paper:
The Magazine of the Federalist Society, at 9 (Fall 2021),
https://fedsoc-cms-public.s3.
amazonaws.com/update/pdf/e3gHcNV9TfgnReSurMOBN1WWezBRJ7VvH90
Si3zP.pdf

12. Bryan Schott, Utah Republican leaders rage about proposed
Federal COVID-19 vaccine mandate, Salt Lake Tribune (Sept. 18,
2021), https://www.sltrib.com/news/politics/2021/09/18/utah-
republican-leaders/

13. Press Release, Utah to FDA: Regulate E-Cigarettes/Oral Nicotine
to Protect Youth from Addiction, Utah Attorney General's Office
(Aug. 19, 2021), https://attorneygeneral.utah.gov/utah-to-fda-
regulate-e-cigarettes-oral-nicotine-in-bipartisan-letter/; Will
Feelright, A.G. Reyes Joins Bipartisan Coalition in Calling on
FDA to Regulate E-Cigarettes and Oral Nicotine Products,
CacheValleyDaily.com (Aug. 19, 2021), https://
www.cachevalleydaily.com/news/archive/2021/08/19/a-g-reyes-
joins-bipartisan-coalition-in-calling-on-fda-to-regulate-e-
cigarettes-and-oral-nicotine-products/

14. Press Release, Utah Calls for Faster Implementation of Anti-
Robocall Technology, Utah Attorney General's Office (Aug. 12,
2021), https://attor
neygeneral.utah.gov/utah-calls-for-faster-implementation-of-
anti-robocall-technology/; Will Feelright, Utah calls for
faster implementation of anti-robocall technology,
CashValleyDaily.com (Aug. 13, 2021), https://www.cachevalley
daily.com/news/archive/202l/08/13/utah-calls-for-faster-
implementation-of-anti-robocall-technology/

15. Ben Winslow, Utah joins lawsuit to overturn Roe v. Wade, Foxl3
News (July 29, 2021),; Dennis Romboy, Why Utah joined
Mississippi abortion case to overturn Roe v. Wade, Deseret News
(July 29, 2021), https://www.deseret.com/utah/2021/7/29/
22600741/utah-joins-mississippi-abortion-case-overturn-roe-
wade-supreme-court; Rick Aaron, `Extremely upset': Utah
supports effort to overturn Roe v. Wade, even if many Utahns
don't, ABC4.com (July 30, 2021), https://www.abc4.com/news/
local-news/extremely-upset-utah-supports-effort-to-overturn-
roe-v-wade-even-if-many-utahns-dont/; Press Release, Utah Joins
SCOTUS Abortion Case, Utah Office of the Attorney General (Aug.
4, 2021), https://attorneygeneral.utah.gov/utah-joins-scotus-
abortion-case/

16. Bryan Schott, Utah A.G. says statehood for Washington, D.C., is
unconstitutional, Salt Lake Tribune (Apr. 13, 2021), https://
www.sltrib.com/news/politics/2021/04/13/utah-ag-says-statehood/

17. Dennis Romboy, New Utah solicitor general apologizes for
mistake, avoids sanctions in Florida case, Deseret News (Sept.
28, 2020), https://www.deseret.com/utah/2020/9/28/21492542/
utah-solicitor-general-sanctions-mistake-florida-class-action-
lawsuit-melissa-ho1yoak; Bethany Rodgers, Utah solicitor
general apologizes, agrees to pay $3,750 for erroneous court
filing, Salt Lake Tribune (Sept. 28, 2020), https://
www.sltrib.com/news/politics/2020/09/28/utah-solicitor-general/
; Melissa Heelan Stanzione, Utah SG Won't Face Sanction in
Class Action Settlement Objection, Bloomberg Law (Sept. 17,
2020), https://news.bloomberglaw.com/legal-ethics/utah-sg-wont-
face-sanction-in-class-action-settlement-
objection?context=search&index=9

18. Alison Frankel, New Utah SG dogged by judge's criticism of class
action objection, Reuters.com (Sept. 10, 2020), https://
www.reuters.com/article/legal-us-otc-tire/new-utah-sg-dogged-
by-judges-criticism-of-class-action-objection-idUSKBN2613FU

19. Bethany Rodgers, Utah's new solicitor general facing potential
court sanctions, Salt Lake Tribune (Sept. 9, 2020), https://
www.sltrib.com/news/politics/2020/09/09/utahs-new-solicitor/;
Dennis Romboy, New Utah solicitor general faces sanctions in
Florida for making false statements, Deseret News (Sept. 9,
2020), https://www.deseret.com/utah/2020/9/9/21429069/utah-
national-tire-lawsuit-sanctions-federal-court-attorney-general-
sean-reyes-melissa-holyoak

20. Press Release, Melissa A. Holyoak Joins Utah Attorney General's
Office as Solicitor General, Utah Attorney General's Office
(Sept. 8, 2020), https://attorneygeneral.utah.gov/melissa-a-
holyoak-joins-utah-attorney-generals-office-as-solicitor-
general/

21. CEI News Release, CEI Successfully Challenges Harmful and
Unlawful Conditions on Charter-Time Warner Merger, Competitive
Enterprise Institute (Aug. 14, 2020), https://cei.org/
news_releases/cei-successfully-challenges-harmful-and-unlawful-
conditions-on-charter-time-warner-merger/

22. CEI News Release, CEI Asks Court to Invalidate the FCC's Costly
Conditions on 2016 Charter Cable Merger, Competitive Enterprise
Institute (Jan. 15, 2019), https://cei.org/news_releases/cei-
asks-court-to-invalidate-the-fccs-costly-conditions-on-2016-
charter-cable-merger/

23. Charles Fain Lehman, SCOTUS Hears Case Against Google Giving
Away Settlement Money to Friends, The Washington Free Beacon
(Oct. 31, 2018), https://freebeacon.com/issues/scotus-hears-
case-google-giving-away-settlement-money-friends/

24. CEI News Release, Supreme Court Hears Challenge to Unfair Class
Action Settlement that Gives Millions to Attorneys, Zero
Dollars to Class Members, Competitive Enterprise Institute
(Oct. 30, 2018), https://cei.org/news_
releases/supreme-court-hears-challenge-to-unfair-class-action-
settlement-that-gives-millions-to-attorneys-zero-dollars-to-
class members/

25. John Sammon, Supreme Court case to decide issue of class action
funds directed to `pet causes,' Legal Newsline (Oct. 26, 2018),
https://legalnews
line.com/stories/511611133-supreme-court-case-to-decide-issue-
of-class-action-funds-directed-to-pet-causes

26. CEI Court Cases, CEI v. FCC, Competitive Enterprise Institute
(Oct. 9, 2018), https://cei.org/court_case/cei-v-fcc/

27. CEI News Release, CEI Challenges Frivolous Suit Paying Attorneys
over $300,000 but Leaving Class members with $0, Competitive
Enterprise Institute (Sept. 12, 2018), https://cei.org/
news_releases/cei-challenges-frivolous-suit-paying-attomeys-
over-300000-but-leaving-class-members-with-0/

28. Amanda Bronstad, Critical Mass: Roundup Trial Goes to Jury | New
Expert Standard in New Jersey | 7th Circuit Fee Focus, Law.com
(Aug. 8, 2018), https://www.law.com/2018/08/08/critical-mass-
roundup-trial-goes-to-jury-new-expert-standard-in-new-jersey-
7th-circuit-fee-focus/

29. CEI News Release, CEI Files Supreme Court Brief in Case
Challenging Abuse of Class Action System, Competitive
Enterprise Institute (July 9, 2018), https://cei.org/
news_releases/cei-files-supreme-court-brief-in-case-
challenging-abuse-of-class-action-system/

30. CEI News Release, CEI Wins Appeal, Heads Back to Court to
Challenge Bad Faith Objectors in Pearson Class Action,
Competitive Enterprise Institute (June 26, 2018), https://
cei.org/news_releases/cei-wins-appeal-heads-back-to-court-to-
challenge-bad-faith-objectors-in-pearson-class-action/

31. CEI News Release, Supreme Court Grants Cert for CEI in Google
Privacy Case Frank v. Gaos, Competitive Enterprise Institute
(Apr. 30, 2018), https://cei.org/news_releases/supreme-court-
grants-cert-for-cei-in-google-privacy-case-frank-v-gaos/

32. CEI New Release, CEI Appeals Olive Oil Settlement Where Lawyers
Make $1 Million, More Than Four Times the Class Recovery,
Competitive Enterprise Institute (Nov. 21, 2017), https://
cei.org/news_releases/cei-appeals-olive-oil-settlement-where-
lawyers-make-1-million-more-than-four-times-the-class-recovery/

33. CEI News Release, Unfair Target Data Breach Settlement Returns
to Appeals Court, Competitive Enterprise Institute (Aug. 15,
2017), https://cei.org/news_releases/unfair-target-data-breach-
settlement-returns-to-appeals-court/

34. KBIA Radio Interview, Paul Pepper: Children's Grove Photo
Contest & Maplewood Barn, ``The Ideal Husband,'' KBIA (Aug. 29,
2017), https://www.kbia.org/arts-and-culture/2017-08-29/paul-
pepper-childrens-grove-photo-contest-maplewood-barn-the-ideal-
husband

35. KBIA Radio Interview, Paul Pepper: Stewart Scott, Cevet Tree
Care & Debbie Furnell and Melissa Holyoak, GenCOMO 2017, KBIA
(Aug. 4, 2017), https://www.kbia.org/arts-and-culture/2017-08-
04/paul-pepper-stewart-scott-cevet-tree-care-debbie-furnell-
and-melissa-holyoak-gencomo-2017

36. CEI News Release, Attorneys Target Holographic Weapons Owners
for Million-Dollar Windfall, Competitive Enterprise Institute
(May 25, 2017), https://cei.org/news_releases/attorneys-target-
holographic-weapons-owners for-million-dollar-windfall/

37. Martin Moylan, Lone consumer holds up Target data breach
settlement, MPR News (May 18, 2017), https://www.mprnews.org/
story/2017/05/18/lone-consumer-holds-up-target-data-breach-
settlement

38. Shayna Posses, Objector to $10M Target Breach Fails to Sway
Judge, Law360.com (May 18, 2017), https://www.law360.com/
articles/925420/objector-to-10m-target-breach-deal-fails-to-
sway-judge

39. Dee Thompson, Attorney fees clipped, class awards tripled under
new deal to end Southwest drink voucher class action, Cook
County Record (Feb. 16, 2017), https://web.archive.org/web/
20170712023136/http://cookcountyre
cord.com/stories/511082645-attorney-fees-clipped-class-awards-
tripled-under-new-deal-to end-southwest-drink-voucher-class-
action

40. Jessica Karmasek, Eighth Circuit reverses, remands $10 million
settlement in Target data breach class action, Legal Newsline
(Feb. 7, 2017), https://web.archive.org/web/20170207233502/
http://legalnewsline.com/stories/511080442-eighth-circuit-
reverses-remands-10-million-settlement-in-target-data-breach-
class-action

41. David Pitt, Court orders review of Target security breach
settlement, Associated Press (Feb. 3, 2017), https://
news.yahoo.com/court-orders-review-target-security-
204611261.html

42. CEI News Release, Center for Class Action Fairness Wins Big in
Southwest Airlines Coupons Case, Triples Relief for Class
Members, Competitive Enterprise Institute (Feb. 2, 2017),
https://cei.org/news_releases/center-for-class-action-fairness-
wins-big-in-southwest-airlines-coupons-case-triples-relief-for-
class-members/

43. CEI Court Cases, Walgreen Co. Stockholder Litigation,
Competitive Enterprise Institute (Aug. 10, 2016), https://
cei.org/court_case/walgreen-co-stockholder-litigation/

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

The Chair. Thank you. And last but not least, very
important position, Mr. Dziak. Thank you for being here. Please
introduce anybody you would like to introduce.

STATEMENT OF DOUGLAS DZIAK, NOMINEE TO BE A COMMISSIONER,
CONSUMER PRODUCT SAFETY COMMISSION

Mr. Dziak. Chair Cantwell, Ranking Member Cruz, members of
the Senate Commerce Committee, good morning and thank you for
the opportunity to appear before the Senate Commerce, Science,
and Transportation Committee as a nominee to serve on the
Consumer Product Safety Commission. CPSC's mission is critical.
The Commission works with Congress, the public, and many
stakeholders to protect the public against unreasonable risks
of injury associated with consumer products. CPSC's
jurisdiction spans thousands of consumer products and affects
all of us, but it does its work with just over 500 dedicated
career staff who work every day to keep consumers safe.
I want to thank President Biden for nominating me. It would
be an honor to serve as a CPSC Commissioner working to improve
consumer safety. I would also like to thank Leader McConnell
for his kind words and for recommending me to the President for
this nomination. I want to first thank my mom and dad.
My mom, who passed away from dementia in November 2021, was
a nurse who worked in various public health settings. She was
and will always be my biggest champion. My dad, who lives in
Ohio and is unable to join me due to his own health, was a
union welder at a local power company. While working a full
time job, he also served part time as a police officer in my
hometown.
My parents' commitment to helping others is something that
remains with me. Here with me today is my wife, Leigh Anne, who
is the most dedicated public servant I know. She served 26
years in Federal law enforcement before retiring to care for
her mom, who is watching this hearing from home.
While some may have made a second career in the private
sector or simply enjoyed retirement, she recently returned to
Federal service, joining the Department of Justice's Organized
Crime Drug Enforcement Task Forces.
I do not tell her often enough how proud I am of her work
or how grateful I am of her support for mine. I am also
grateful for my family and friends, including the many
colleagues with whom I worked over the years on both sides of
the political aisle.
These efforts included bipartisan legislation that I worked
on with Senator Bayh and his staff to create the Office of
Intellectual Property Enforcement Coordinator, and with Senator
Casey and his staff on the successful reauthorization of the
Perkins Career Technical Education Act.
I would not have had the successes I did without such great
colleagues to work with. Since graduating from law school, I
have worked as a regulatory attorney, a U.S. Senate staffer,
and for the past two and a half years, as Chief Counsel to CPSC
Commissioner Peter Feldman, who I would also like to thank for
adding me to his team.
My varied professional experiences have taught me valuable
lessons about law and public policy from a variety of
perspectives. I believe that these experiences would serve me
well as a Commissioner.
I have also been blessed with many mentors. Two in
particular deserve recognition. Senator George Voinovich of my
home State of Ohio, whom I served as Counsel and then
Legislative Director, and Senator Mike Enzi of Wyoming, who I
served as Legislative Director and then Budget Committee Staff
Director.
Senators Voinovich and Enzi taught me much about public
service. More importantly, they taught me about teamwork and
serving honorably. Senators Voinovich and Enzi were lost too
soon. I miss them both. Should I have the honor of being
confirmed, I will do my best to emulate their examples.
As I close, I want to thank and recognize in particular my
CPSC colleagues. Their efforts each day to protect consumers
and to achieve the CPSC safety mission are inspiring. If
confirmed, I look forward to working with Congress, safety
advocates, and all other stakeholders to advance the
Commission's safety mission and continue my public service in
this new role.
Again, thank you for the opportunity to appear before you
today, and for your consideration of my nomination. I am happy
to answer any questions.
[The prepared statement and biographical information of Mr.
Dziak follow:]

Statement of Douglas Dziak, Nominee to be a Commissioner,
U.S. Consumer Product Safety Commission
United States Senate Committee on Commerce, Science, and
Transportation Chair Cantwell, Ranking Member Cruz, and members of the
Committee.
Good morning and thank you for the opportunity to appear before the
Senate Committee on Commerce, Science, and Transportation, as a nominee
to serve as a Commissioner on the United States Consumer Product Safety
Commission (CPSC).
CPSC's mission is critical. The Commission works with Congress, the
public, and many stakeholders to protect the public against
unreasonable risks of injury associated with consumer products. CPSC's
jurisdiction spans thousands of consumer products and affects all of
us, but it does its work with just over 500 dedicated career staff, who
work every day to keep consumers safe.
I want to thank President Biden for nominating me. It would be an
honor to serve as a CPSC Commissioner, working to improve consumer
safety.
I also want to thank my mom and dad. My mom, who passed away from
dementia in November 2021, was a nurse who worked in various public
health settings. She was and will always be my biggest champion.
My dad, who lives in Ohio and is unable to join me today due to his
health, was a union welder at the local power company. While working a
full-time job, he was also a part-time police officer in my hometown.
My parents' commitment to helping others is something that remains
with me.
Here with me today, is my wife Leigh Anne, who is the most
committed public servant I know. She served 26 years in Federal law
enforcement before retiring to care for her mom who is watching this
hearing from home.
While some may have made a second career in the private sector or
simply enjoyed retirement, she recently returned to Federal service,
joining the Department of Justice's Organized Crime Drug Enforcement
Task Forces.
I do not tell her often enough how proud I am of her work or how
grateful I am that she has always supported me in mine.
I am grateful for my family and friends, including the many
colleagues with whom I have worked over the years on both sides of the
political aisle.
These efforts included bipartisan legislation that I worked on with
Senator Bayh and his staff to create the Office of the Intellectual
Property Enforcement Coordinator and with Senator Casey and his staff
on the successful reauthorization of the Perkins Career and Technical
Education Act.
I would not have had the successes I did without such great
colleagues to work with.
Since graduating from law school, I have worked as a regulatory
attorney, a United States Senate staffer, and for the past two and a
half years as Chief Counsel to CPSC Commissioner Peter Feldman, who I
would also like to thank for adding me to his team.
My varied professional experiences have taught me valuable lessons
about law and public policy from a variety of perspectives. I believe
these experiences would serve me well as a Commissioner.
I have also been blessed with many wonderful mentors. Two in
particular deserve mention.
Senator George Voinovich of my home state of Ohio, whom I served as
Counsel and then Legislative Director; and Senator Mike Enzi of
Wyoming, whom I served as Legislative Director and then as Budget
Committee Staff Director.
Senators Voinovich and Enzi taught me much about public policy.
More importantly, they taught me about teamwork and serving honorably.
Senators Voinovich and Enzi were lost too soon. I miss them both.
Should I have the honor of being confirmed, I will do my best to
emulate their examples.
As I close, I want to recognize and thank in particular my CPSC
colleagues. Their efforts each day to protect consumers and to achieve
the CPSC's safety mission are inspiring.
If confirmed, I look forward to working with Congress, safety
advocates, and all other stakeholders to advance the Commission's
safety mission and continue my public service in this new role.
Again, thank you for this opportunity to appear before you today
and for your consideration of my nomination. I am happy to answer any
questions.
______

a. biographical information
1. Name (Include any former names or nicknames used): Douglas
(Doug) Dziak.
2. Position to which nominated: Commissioner, U.S. Consumer Product
Safety Commission.
3. Date of Nomination: March 30, 2023.
4. Address (List current place of residence and office addresses):

Residence: Information not released to the public.
Office: 4330 East-West Hwy, Bethesda, MD 20814.

5. Date and Place of Birth: December 2, 1970; Lorain, Ohio.
6. Provide the name, position, and place of employment for your
spouse (if married) and the names and ages of your children (including
stepchildren and children by a previous marriage).

Leigh Anne Mosby, retired from Federal service. We have no
children.

------------------------------------------------------------------------
Dates Degrees Dates of
Institution Attended Received Degrees
------------------------------------------------------------------------
Ohio University 1989-1995 BA, Economics August 1993 BA
and English November 1995
MA, Economics MA
William & Mary Law School 1996-1999 JD May 1999
Lorain County Community June-July N/A N/A
College 1992 (Summer class)
------------------------------------------------------------------------

U.S. Consumer Product Safety Commission (CPSC or Commission),
Bethesda, MD, Office of Commissioner Peter A. Feldman, Chief
Counsel, February 2021 to present. Advise CPSC Commissioner and
work with other Commissioner offices and career staff to
achieve the Commission's safety mission.

U.S. Senate Committee on the Budget, Staff Director and General
Counsel, February 2020 to February 2021. Managed Senate Budget
Committee Majority and non-partisan front-office staff.

U.S. Senator Michael B. Enzi, Legislative Director, June 2018
to February 2020. Managed senior U.S. Senator's staff,
including legislative portfolios related to the Senate Health
Education Labor & Pensions, Finance, Homeland Security and
Governmental Affairs (HSGAC), and Small Business committees.

Holland & Knight LLP, Washington, D.C., Senior Counsel, March
2017 to June 2018. Government relations and regulatory law
practice.

Nixon Peabody LLP, Washington, D.C., Counsel, March 2011 to
March 2017. Government relations and regulatory law practice.

U.S. Senator George V. Voinovich, Legislative Director & Chief
Counsel/HSGAC, Subcommittee on Oversight of Government
Management, the Federal Workforce and the District of Columbia,
General Counsel/Counsel (Senator Voinovich was the Chair and
Ranking Member of the OGM subcommittee during my service),
January 2006 to January 2011. As Legislative Director, I
managed U.S. Senator's staff, including providing management
over legislative portfolios related to Senate HSGAC,
Environment and Public Works, and Appropriations committees.

Freshfields, Bruckhaus, Deringer LLP, Washington, D.C.,
Associate Attorney, October 2002 to January 2006.

Hunton and Williams LLP (now Hunton Andrews Kurth LLP),
Washington, D.C., Associate Attorney, September 1999 to
September 2002.

William & Mary Law School, Professors Alan J. Reese and Raj
Bhala, Williamsburg, VA, Research Assistant, academic years of
1997 and 1998.

Arter & Hadden LLP, Cleveland, OH, Summer Associate, Summer
1998 (full-time job offer extended, but declined).

Ford's Colony Swim and Tennis Club, Williamsburg, VA,
Lifeguard, Summer 1997.

Hale and Dorr LLP (now WilmerHale), Washington, D.C., Legal
Assistant, Fall 1995 to Summer 1996. I performed legal and
general research, prepared documents for filing, and assisted
in the preparation of documents for the Hale and Dorr
attorneys.

Cambridge Associates, Arlington, VA, Fall 1995. This was an
entry level position in which I performed research and data
analysis for client use.

Atlantic Pool Service, Arlington VA, part-time Lifeguard, Fall
1995 to Summer 1996.

Arlington County Parks and Recreation, Arlington, VA, part-time
Swim Instructor, Fall 1995 to Spring 1996.

Ohio University Department of Economics, Athens, Ohio,
Economics Instructor, August 1994 to June 1995. As part of my
graduate student aid, I taught introductory economics courses
at Ohio University branch campuses.

Ohio University Graduate Research Assistant, Professor Al
Eckes, Athens, OH, Research Assistant, August 1993 to June
1994. As part of my graduate-student aid, I assisted Professor
Eckes, a former Chair of the U.S. International Trade
Commission, in researching his book regarding U.S. trade
history.

Ohio University Aquatic Center, Athens, OH, estimated 1990 to
1994, Lifeguard and Swim Instructor.

City of Athens Ohio, Lifeguard and Swim Instructor, Summers of
1993, 1994, and 1995.

9. Attach a copy of your resume. See attached.
10. List any advisory, consultative, honorary, or other part-time
service or positions with Federal, State, or local governments, other
than those listed above after 18 years of age.
I served as a pro bono advisor to the William & Mary Law School's
Lewis B. Puller Jr. Veterans Benefits Clinic from 2011 to 2018.
11. List all positions held as an officer, director, trustee,
partner, proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, or other business, enterprise,
educational, or other institution.
I was a board member of the Dominion Greens Home Owners Association
(DGHOA), Arlington, VA, until December of 2022. DGHOA is the
homeowners' association for the community where I have lived since
2002.
I am currently a member and chairman of the board of the Windswept
Ridge Property Owner's Association (WSRPOA). WSRPOA is a 30-member
condominium community in Corolla, NC. I joined the board in October
2017.
12. Please list each membership you have had after 18 years of age
or currently hold with any civic, social, charitable, educational,
political, professional, fraternal, benevolent or religiously
affiliated organization, private club, or other membership
organization. (For this question, you do not have to list your
religious affiliation or membership in a religious house of worship or
institution.). Include dates of membership and any positions you have
held with any organization. Please note whether any such club or
organization restricts membership on the basis of sex, race, color,
religion, national origin, age, or disability.

District of Columbia Bar, active, sworn in September 11, 2000.

State of Maryland Bar, inactive, sworn in December 14, 1999.

University Club of Washington D.C., 2011 to 2018. I served on
the Club's finance and audit committees.

William & Mary Law School Association, Association Board
Member, 2004 to 2010, general member 1999 to present.

The Currituck Club golf course in Corolla, NC. I joined in 2016
and remain a member.

I am a member of the DGHOA, Arlington, VA, where I have lived
since 2002.

I am a member of the WSRPOA.

I am a member of the District of Columbia Bar Board on
Professional Responsibility (BPR), as a Lawyer Alternative (LA)
for hearing committees. I completed a 6-year term from 2015 to
2022, and the BPR selected me for another 6-year term in March
2023, https://www.dcbar.org/attorney-discipline/board-on-
professional-responsibility.

I was a member of the American Bar Association (ABA) over the
course of my law firm employment. I was also a member of the
ABA Antitrust subcommittee from 1999 to 2006.

Federalist Society, Public Sector Member, from March 2019 to
September 2021. I was also a member during law school.

William & Mary Law School Republicans (Vice-President, 1997 to
1998).

William & Mary Environmental Law and Policy Review, Articles
Editor, 1998 to 1999.

To my knowledge, none of the organizations that I have been a
member has any policy of restricting membership on the basis of
sex, race, color, religion, national origin, age, or
disability.

13. Have you ever been a candidate for and/or held a public office
(elected, non-elected, or appointed)? If so, indicate whether any
campaign has any outstanding debt, the amount, and whether you are
personally liable for that debt. No.
14. List all memberships and offices held with and services
rendered to, whether compensated or not, any political party or
election committee within the past ten years. If you have held a paid
position or served in a formal or official advisory position (whether
compensated or not) in a political campaign within the past ten years,
identify the particulars of the campaign, including the candidate, year
of the campaign, and your title and responsibilities.
I served on the John Kasich for President DC Steering Committee in
2016. This committee was ceremonial in nature.
15. Itemize all political contributions to any individual, campaign
organization, political party, political action committee, or similar
entity of $200 or more for the past ten years.

----------------------------------------------------------------------------------------------------------------
Recipient Date Amount
----------------------------------------------------------------------------------------------------------------
WENSTRUP FOR CONGRESS 1/18/13 $250.00
FRIENDS OF DAVID SCHWEIKERT 2/5/13 $250.00
VALUE IN ELECTING WOMEN POLITICAL ACTION COMMITTEE 2/27/13 $250.00
CAPITO FOR WEST VIRGINIA 3/13/13 $250.00
ALEXANDER FOR SENATE 2020 INC 3/20/13 $250.00
FRIENDS OF DAVE JOYCE 3/29/13 $250.00
CAPITO FOR WEST VIRGINIA 4/15/13 $250.00
CAPITO FOR WEST VIRGINIA 5/13/13 $250.00
CAPITO FOR WEST VIRGINIA 6/18/13 $250.00
TIM SCOTT FOR SENATE 6/28/13 $250.00
FRIENDS OF DAVID SCHWEIKERT 7/18/13 $250.00
STIVERS FOR CONGRESS 7/30/13 $500.00
ROBERT HURT FOR CONGRESS 8/7/13 $250.00
TOM REED FOR CONGRESS 12/31/13 $500.00
JOHNSON FOR CONGRESS 3/3/14 $1,000.00
FRIENDS OF DAVE JOYCE 4/8/14 $250.00
RENEE ELLMERS FOR CONGRESS COMMITTEE 6/30/14 $250.00
DOLD FOR CONGRESS 9/15/14 $500.00
DOLD FOR CONGRESS 10/1/14 $250.00
FRIENDS OF PAT TOOMEY 3/1/16 $250.00
FRIENDS OF TIBERI 2/13/17 $500.00
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 7/7/17 $76.92
VALUE IN ELECTING WOMEN POLITICAL ACTION COMMITTEE 7/10/17 $250.00
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 7/21/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 8/4/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 8/18/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 9/1/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 9/15/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 9/29/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 10/13/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 10/27/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 11/10/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 11/24/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 12/8/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 12/22/17 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 2/2/18 $76.92
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 2/16/18 $76.92
ANTHONY GONZALEZ FOR CONGRESS 2/27/18 $250.00
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 3/2/18 $76.92
ANTHONY GONZALEZ FOR CONGRESS 3/12/18 $250.00
HOLLAND & KNIGHT COMMITTEE FOR EFFECTIVE GOVERNMENT 3/16/18 $76.92
VALUE IN ELECTING WOMEN POLITICAL ACTION COMMITTEE 3/11/19 $250.00
WINRED 9/21/20 $50.00
WINRED 10/8/20 $10.00
WINRED 10/8/20 $10.00
WINRED 10/15/20 $10.00
WINRED 10/29/20 $35.00
WINRED 10/31/20 $10.00
WINRED 11/8/20 $10.00
WINRED 11/15/20 $10.00
WINRED 11/22/20 $10.00
WINRED 11/29/20 $10.00
WINRED 12/6/20 $10.00
WINRED 12/13/20 $10.00
WINRED 12/20/20 $10.00
WINRED 12/27/20 $10.00
VALUE IN ELECTING WOMEN POLITICAL ACTION COMMITTEE 2015 $250.00
----------------------------------------------------------------------------------------------------------------
Note: My recollection is that the WINRED donations were for the campaigns of Senators Susan Collins and Joni
Ernst.

16. List all scholarships, fellowships, honorary degrees, honorary
society memberships, military medals, and any other special recognition
for outstanding service or achievements.

Ohio University, summa cum laude, August 1993.

Articles Editor, William & Mary Environmental Law and Policy
Review, 1998 to 1999.

College of William & Mary Law School, Dean's Certificate Class
of 1999.

College of William & Mary Law School, Student Bar Association
Vice-President 1998-1999.

Dean's and Department of Economics scholarship recipient, Ohio
University 1990 to 1993.

The William & Mary Law School, Paul M. Shapiro Memorial
Scholarship recipient.

The College of William & Mary's Lewis B. Puller, Jr. Veterans
Clinic and the National Law School Veterans Clinic Consortium
have recognized my pro bono work for these organizations in
several of their media releases.

Doug Dziak, Will a Resignation Bring the FEC's Work to a Halt?
Holland and Knight Alert, February 12, 2018, https://
www.mondaq.com/unitedstates/constitutional-administrative-law/
672546/will-a-resignation-bring-the-fec39s-work-to-a-
halt?type=mondaqai&score=47.

Christopher DeLacy, Andrew Emerson, and Doug Dziak, What is the
Lobbying Disclosure Act (LDA)?, Holland and Knight Alert,
November 16, 2017, https://www.hklaw.com/en/insights/
publications/2017/11/what-is-the-lobbying-disclosure-act-lda.
(Although I am no longer listed as a co-author, based on a
LinkedIn post, I believe I was an original co-author of this
client alert.)

Christopher DeLacy and Doug Dziak, Congress Contemplates
Changes to the Foreign Agents Registration Act (FARA), Holland
and Knight Alert, November 16, 2017, https://www.hklaw.com/en/
insights/publications/2017/11/congress-contemplates-changes-to-
the-foreign-agent. (Although I am no longer listed, based on a
social media post, I was a co-author of this post.)

Hon. Thomas M. Reynolds, Sally Vastola, Douglas Dziak, and Jodi
Richardson, Moving Forward, the Trump Administration & 115th
Congress, Nixon Peabody Government Relations Group Alert,
November 2016. (Digital Copy Attached).

Douglas Dziak, The Miscellaneous Tariff Bill: if your company
produces in the U.S., cost saving may be coming your way. Nixon
Peabody Government Relations Group Alert, April 18, 2016.
(Digital Copy Attached).

Anjali Vohra, Alexandra Lopez-Casero and Doug Dziak, New
changes to Iran sanctions: what you need to know, Nixon Peabody
Export Controls Alert, January 19, 2016. (Digital Copy
Attached).

Hon. Thomas M. Reynolds, Sally Vastola, and Douglas Dziak, What
does ``international tax reform'' mean to your business? NP's
Government Relations team can help you find out. Nixon Peabody
Government Relations Group Alert, September 22, 2015. (Digital
Copy Attached).

Douglas Dziak, McCutcheon v. FEC: A victory for the First
Amendment or something in between?, Nixon Peabody Government
Relations Group Alert, 2014. (Unavailable).

Alexandra Lopez-Casero, D. Grayson Yeargin and Douglas Dziak,
Latest Ukraine-Related Sanctions Likely Won't Be The Last,
March 18, 2014, Law360. (Digital Copy Attached).

Alexandra Lopez-Casero and Doug Dziak, Takeaways from CFIUS'
Latest Win in Court, November 12, 2013, Law360. (Digital Copy
Attached).

Alexandra Lopez-Casero and Doug Dziak, Court delivers (another)
win for CFIUS, NP M&A and Corporate Transactions Law Alert,
October 30, 2013. (Digital Copy Attached).

Douglas Dziak, Revisiting the Ethical Road Not Taken, Roll
Call, March 18,
2013, https://rollcall.com/2013/03/18/dziak-revisiting-the-
ethical-road-not-
taken/.

The American Bar Association, Section of Antitrust Law,
Premerger Coordination, the Emerging Law of Gun Jumping and
Information Exchange, William J. Vidgor, Editor, 2006, Douglas
Dziak, Contributing Drafter regarding U.S. legal issues. I do
not recall the particular sections I drafted.

Doug Dziak, SBA V-P Report, The Amicus, February 22, 1999,
https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1320&context=newspapers.

Doug Dziak, SBA VP says get Beach Week Housing, Barrister's
Tickets ASAP, The Amicus, February 3, 1999, https://
scholarship.law.wm.edu/cgi/viewcon
tent.cgi?article=1045&context=newspapers.

Doug Dziak, Vice President Address, The Amicus, October 26,
1998, https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1043&context=newspapers.

Jeff Timmers and Doug Dziak, Buy FFG Tickets ASAP, The Amicus,
October 5, 1998, https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1042&context
=newspapers.

Doug Dziak, SBA VP Report, The Amicus, September 7, 1998,
https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1319&context=newspapers.

Doug Dziak, From the SBA Vice President, The Amicus, April 20,
1998, https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1041&context=newspapers.

Doug Dziak, From the SBA, The Amicus, April 6, 1998, https://
scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1040&context=newspapers.

Doug Dziak, From the SBA Vice-President, The Amicus, March 23,
1998, https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=1361&context=news
papers.

Jeff Timmers and Doug Dziak, the SBA Candidates Speak, The
Amicus, February 23, 1998, https://scholarship.law.wm.edu/cgi/
viewcontent.cgi?article=13
68&context=newspapers.

To complete this question, I performed a search of online and other
records to locate and identify responsive items. Although I have
conducted a diligent search, it is possible that items may have been
inadvertently omitted or missed.
18. List all speeches, panel discussions, and presentations (e.g.,
PowerPoint) that you have given on topics relevant to the position for
which you have been nominated. Include a link to each publication when
possible. If a link is not available, provide a digital copy of the
speech or presentation when available.
I have not given any speeches, presentations, or participated in
any panel discussions regarding consumer product safety or the
Commission. Nevertheless, I have included events that I participated in
as either moderator or panelist. These programs involved my pro bono
work on veterans' issues and alumni engagement with Ohio University.
The National Law School Veterans Clinic Consortium, National
Conference on Law Clinics Serving Veterans, February 28--March 1, 2018,
panel on February 28, 2018, Working with Congressional Offices and
Staff. I led a panel to discuss how law school veterans' clinics could
work with Congressional offices to achieve their mission. https://
www.law.du.edu/documents/veterans/2018-Program.pdf.
I acted as a moderator for an Ohio University Washington Policy
Forum on January 28, 2016, held at the Capitol Visitor's Center. Ohio
University's College of Arts and Sciences, Scripps College of
Communications, Ohio University Alumni Association and the Voinovich
School of Leadership and Public Affairs organized the event. I welcomed
the participants and introduced the panel, which included Ohio
University Economics Professor Richard Vedder and Ohio University
Alumni Richard May and Hebah Abdalla. (link and digital copy
unavailable)
I participated on a panel for Ohio University students visiting
Washington, DC, as part of Ohio University's DC Networking Week. Ohio
University Director of Legal Engagement & Pre-Law, Larry Hayman,
moderated the event, which was a Q&A format and discussed political
outsiders, the U.S. Supreme Court and the 2016 election. I did not make
a presentation. (link and digital copy unavailable)
To complete this question, I performed a search using Internet and
Lexis searches. I am including the speeches, presentations, or panel
discussions I recalled or found; however, it is possible that events
may have been inadvertently missed.
19. List all public statements you have made during the past ten
years, including statements in news articles and radio and television
appearances, which are on topics relevant to the position for which you
have been nominated, including dates. Include a link to each statement
when possible. If a link is not available, provide a digital copy of
the statement when available. None.
20. List all digital platforms (including social media and other
digital content sites) on which you currently or have formerly operated
an account, regardless of whether or not the account was held in your
name or an alias. Include the full name of an ``alias'' or ``handle'',
including the complete URL and username with hyperlinks, you have used
on each of the named platforms. Indicate whether the account is active,
deleted, or dormant. Include a link to each account if possible.
I have operated the following social media accounts:

Active
Facebook: https://www.facebook.com/dougfromDC (Doug DC)

LinkedIn: https://www.linkedin.com/in/douglas-d-70012a1/
(Douglas Dziak)

Instagram: https://www.instagram.com/ohio_doug/ (ohio doug)

Peloton: https://members.onepeloton.com/profile/overview
(OhioDoug)

Dormant/Inactive
Twitter: https://twitter.com/Doug08129000 (@Doug08129000)

Nextdoor: https://nextdoor.com/profile/018Ls3XqjnpPZtgWT/ (Doug
D.)

21. Please identify each instance in which you have testified
orally or in writing before Congress in a governmental or non-
governmental capacity and specify the date and subject matter of each
testimony. None.
22. Given the current mission, major programs, and major
operational objectives of the department/agency to which you have been
nominated, what in your background or employment experience do you
believe affirmatively qualifies you for appointment to the position for
which you have been nominated, and why do you wish to serve in that
position?
I believe that my public service career, including my current
service as Chief Counsel to CPSC Commissioner Peter Feldman, and my
legal career as a regulatory attorney qualify me to serve as a CPSC
Commissioner. In my current role at the CPSC, since 2021, I have worked
closely with other Commission offices and career staff to help the CPSC
achieve its vital mission of protecting the public from unreasonable
risks of injury and death from consumer products.
I served eight years as a Senate staffer, including as a Staff
Director of the Budget Committee and Legislative Director for two
Senators. In those roles, I managed Senate staff, worked with Senate
committees and other Senators' staff to draft and pass legislation
addressing issues including health and health care, safety, finance,
intellectual property, and budget and appropriations.
Outside of government, I served for roughly 15 years as a
regulatory attorney working on a range of legal issues including
antitrust, energy, telecommunications, and political law. This
experience provided me with a significant and varied background, which
has and will continue to serve me well as the CPSC engages in a range
of activities ranging from rulemakings to administrative litigation.
I would be honored to continue in public service as a CPSC
Commissioner. I was privileged to work with two dedicated public
servants in Senators Enzi and Voinovich. Both taught me the fulfillment
gained in solving problems by working with others to find common ground
on challenging issues.
The CPSC is an agency with a critical safety mission. I am
committed to working with all stakeholders to solve problems. I have
worked my entire career to bring parties together and am committed to
continuing that should I be confirmed.
One of the Commission's areas of particular importance, and one of
the issue areas I hope to focus on should I be confirmed, is how to
reduce consumer related injuries to adults 65 and older. My spouse and
I each have an aging parent and I see the risks that surround them in
the home. Finally, I believe it is important the CPSC have a fully-
staffed Commission to help it achieve its safety mission.
23. What do you believe are your responsibilities, if confirmed, to
ensure that the department/agency has proper management and accounting
controls, and what experience do you have in managing a large
organization?
Ensuring management and financial controls is critical to achieving
any department or agency's mission. The public and Congress must have
confidence that departments and agencies are good stewards of taxpayer
resources. Otherwise, we will lose their trust and should that happen,
it may result in an audience less likely to listen to the messages we
are trying to share about our core consumer safety issues.
I served as the Staff Director for the U.S. Senate Committee on the
Budget. The Budget Committee regularly worked with the Government
Accountability Office (GAO) regarding financial and accounting controls
as well as general program management issues. During my OGM tenure with
Senator Voinovich, we also worked with GAO and Inspectors General (IG).
I have and will continue to work with the CPSC's IG to ensure the
Commission is working to implement his office's recommendations across
a range of areas, including management and accounting control.
I am particularly proud of the work the Commission has done over
the past two years to implement its IG's recommendations into the
Fiscal Year operating plans.
24. What do you believe to be the top three challenges facing the
department/agency, and why?
E-commerce--The direct sale of products from businesses to
consumers provides bad-actor companies, which are often located
overseas, with the ability to circumvent existing enforcement methods.
Increasingly, consumers are able to purchase products via e-commerce
websites directly from businesses. Such sales are sent directly to
consumers via de minimis shipments and thus are not subject to the
traditional inspection methods.
The volume of the business-to-consumer sales will continue to
increase significantly, posing greater risk of violative product
getting into commerce. While the Commission is growing its online
enforcement with efforts like our e-safe program, including de minimus
shipments and growing our traditional port inspections, challenges
remain. For example, as noted, many of these sellers are located
overseas and sell in small quantities, making tracking questionable
products a greater challenge than in the past when a port inspector
could stop a large shipment for review.
Safety Risks for Adults 65 years and Older--The CPSC's Division of
Hazard Analysis March 2023 report observed that from 2017 to 2021,
adults 65 and older sustained an estimated 14.9 million emergency
department-treated injuries associated with consumer products. The
volume of these injuries among this demographic demonstrates that
interactions with otherwise safe consumer products is a significant
and, based on trend lines, a growing issue.
The costs, both societal and to the family, can be enormous. I have
seen this first hand as my mother-in-law had a major head trauma after
an in-home fall and subsequent brain bleed. She has never entirely
recovered to her former level of activity and has required significant
treatments and care.
CPSC data shows increasing risks as adults age. The rate of
injuries is significantly higher for adults 65 and above (5.5 consumer
product injuries per 100 adults in the over 65 group versus 2.9
injuries per 100 adults aged 25 to 64). In addition, injuries to older
adults more frequently led to hospitalization. I believe it is
important that the Commission heighten its communications to illustrate
the greater risk of injury to adults 65 and older as they interact with
consumer products.
Recall Effectiveness--When the CPSC works with a company to recall
a product using a corrective action plan (CAP) (commonly known as a
recall), the number of consumers who take advantage of a CAP is often
low versus the number of products eligible. This ratio, known as recall
effectiveness, has been an issue of concern for both Congress and the
Commission.
In a November 2020 report, GAO recommended the Commission take
steps to better monitor companies subject to a CAP to improve recall
effectiveness. Efforts to increase recall effectiveness continue, yet
challenges remain. For example, there are significant issues in
notifying consumers about a product recall. In a world in which
information flows constantly, once-innovative methods of communications
such as e-mail are often now so frequent, it is easy for consumers to
miss recall notifications.
The CPSC is working with companies to increase direct-to-consumer
outreach. Connected devices provide one innovative method to contact
consumers. The connected device may provide notice on the device
itself, in an app running the device, or a text to the phone number
attached to the device.
b. potential conflicts of interest
1. Describe all financial arrangements, deferred compensation
agreements, and other continuing dealings with business associates,
clients, or customers. Please include information related to retirement
accounts, such as a 401(k) or pension plan. None.
2. Do you have any commitments or agreements, formal or informal,
to maintain employment, affiliation, or practice with any business,
association, or other organization during your appointment? If so,
please explain. None.
3. Indicate any investments, obligations, liabilities, or other
relationships which could involve potential conflicts of interest in
the position to which you have been nominated. Explain how you will
resolve each potential conflict of interest.
As a Schedule C CPSC employee, I am a current Office of Government
Ethics (OGE) financial disclosure filer. As a result of my
consultations with CPSC's Designated Agency Ethics Officer (DAEO), I am
recused from three matters at the CPSC as a result of individual stocks
I currently own: Peloton, Costco, and NVIDIA.
In connection with the nomination process, I have consulted with
the Office of Government Ethics (OGE) and the CPSC DAEO to identify any
conflicts of interest, and any potential conflicts will be resolved
within the terms of the ethics agreement I have entered into with OGE.
As part of that process and within the terms of the ethics agreement I
have entered into with OGE, I have agreed to divest specific publicly-
traded stocks I currently own. Should I be confirmed, I will abide by
this ethics agreement, and although I am unaware of any other potential
conflicts of interest, should issues arise, I commit to continue to
work with the CPSC's DAEO to resolve any future conflicts.
4. Describe any business relationship, dealing, or financial
transaction which you have had during the last ten years, whether for
yourself, on behalf of a client, or acting as an agent, that could in
any way constitute or result in a possible conflict of interest in the
position to which you have been nominated. Explain how you will resolve
each potential conflict of interest.
In connection with the nomination process, I have consulted with
OGE and the CPSC DAEO to identify any conflicts of interest and any
identified conflicts. As part of that process and within the terms of
the ethics agreement I have entered into with OGE, I have agreed to
divest specific publicly-traded stocks I currently own. Should I be
confirmed, I will abide by this ethics agreement, and although I am
unaware of any other potential conflicts of interest, should issues
arise, I commit to continue to work with the CPSC's DAEO to resolve any
such future conflicts. I am unaware of any other conflicts.
5. Identify any other potential conflicts of interest, and explain
how you will resolve each potential conflict of interest.
I am unaware of any other conflicts of interest. In connection with
the nomination process, I have consulted with OGE and the CPSC DAEO to
identify any conflicts of interest, and any conflicts will be resolved
within the terms of the ethics agreement I have entered into with OGE.
Should I be confirmed, I will abide by this ethics agreement, and
although I am unaware of any other potential conflicts of interest,
should issues arise, I commit to continue to work with CPSC's DAEO to
resolve any such future conflicts.
6. Describe any activity during the past ten years, including the
names of clients represented, in which you have been engaged for the
purpose of directly or indirectly influencing the passage, defeat, or
modification of any legislation or affecting the administration and
execution of law or public policy.
I provided government relations services to the following entities:
Wegmans Food Markets, Inc., Council for Affordable Housing and Rural
Development, Cooperative Regions of Organic Producer Pools (CROPP)/
Organic Valley, Huff Management Company, Inc., Rensselaer Polytechnic
Institute, National Eating Disorders Association, Starrett City, Inc.,
Monroe County Water Authority, Navient Solutions, Cleveland BioLabs,
Inc., Preservation Development Partners, LLC, Covidien LP, Goldman
Sachs Group, Inc., Western University of Health Sciences, Building
America's Future, Abrasive Blasting Manufacturers Alliance, AbbVie,
Camber Property Group, Innovative Wireless Technologies, Inc.,
Brookshire Grocery, Dawson Holdings, Hogan Lovells, and New York City
Housing Authority. To the best of my recollection, I have not
represented a client regarding a consumer product safety issue.
c. legal matters
1. Have you ever been disciplined or cited for a breach of ethics,
professional misconduct, or retaliation by, or been the subject of a
complaint to, any court, administrative agency, the Office of Special
Counsel, an Inspector General, professional association, disciplinary
committee, or other professional group? If yes:

a. Provide the name of court, agency, association, committee, or
group;

b. Provide the date the citation, disciplinary action, complaint, or
personnel action was issued or initiated;

c. Describe the citation, disciplinary action, complaint, or
personnel action;

d. Provide the results of the citation, disciplinary action,
complaint, or personnel action.

No.
2. Have you ever been investigated, arrested, charged, or held by
any Federal, State, or other law enforcement authority of any Federal,
State, county, or municipal entity, other than for a minor traffic
offense? If so, please explain.
Yes. In the fall of 1990 when I was a 19-year old college student,
I was charged with underage consumption of alcohol.
3. Have you or any business or nonprofit of which you are or were
an officer ever been involved as a party in an administrative agency
proceeding, criminal proceeding, or civil litigation? If so, please
explain. No.
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, please explain.
Yes. In the fall of 1990 when I was a 19-year old college student,
I was charged with underage consumption of alcohol. I pled no contest
to the violation. I recall paying a fine and serving several hours of
community service. The conviction was expunged in December 1994.
5. Have you ever been accused, formally or informally, of sexual
harassment or discrimination on the basis of sex, race, religion, or
any other basis? If so, please explain. No.
6. Please advise the Committee of any additional information,
favorable or unfavorable, which you feel should be disclosed in
connection with your nomination. None.
d. relationship with committee
1. Will you ensure that your department/agency complies with
deadlines for information set by congressional committees, and that
your department/agency endeavors to timely comply with requests for
information from individual Members of Congress, including requests
from members in the minority? Yes.
2. Will you ensure that your department/agency does whatever it can
to protect congressional witnesses and whistleblowers from reprisal for
their testimony and disclosures? Yes.
3. Will you cooperate in providing the Committee with requested
witnesses, including technical experts and career employees, with
firsthand knowledge of matters of interest to the Committee? Yes.
4. Are you willing to appear and testify before any duly
constituted committee of the Congress on such occasions as you may be
reasonably requested to do so? Yes.

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The Chair. Thank you, Mr. Dziak, and thank you--that is a
very wonderful statement about both your parents and about your
wife, thank you so much. We will now go to questions. Five
minute rounds. We have got a lot of members here, so it shows
you the importance of these various agencies to the members of
the Senate.
So, hopefully everybody will keep within the 5-minutes. I
am going to go pretty fast because I have lots of questions I
want to ask, but I want to start with a 13(b) authority that is
so important to getting consumers refunds.
Do you, each of you on the FTC nominations, do you support
reestablishing 13(b) in--without limitations, or could you, if
you believe in limitations, explain what limitations that you
think we need?
Ms. Slaughter. Yes. The 13(b) authority is critical for our
ability to help injured consumers be whole, so I strongly
support restoring it.
The Chair. Mr. Ferguson.
Mr. Ferguson. I agree with Commissioner Slaughter. This is
a critical--that what they thought was the 13(b) authority was
a critical component of the FTC's enforcement toolkit, and I
support restoring something that looks very much like it.
Ms. Holyoak. And I agree. Before the AMG case, the decade
before that, the FTC recovered $10 billion for consumers. It is
a very important tool for enforcers.
The Chair. So, and you believe that it should be similar to
what is the authority they had. You wouldn't want to see a
standard set so high that the FTC could never get disgorgement
for consumers?
Ms. Slaughter. That is correct.
Mr. Ferguson. I certainly wouldn't want a standard so high
it never gets disgorgement, although, of course, the
appropriate balance to strike here is Congress's call.
Ms. Holyoak. Yes, I agree with that. And I think, I know
that Congress is working hard with that, and I am happy to
continue that dialog with you to ensure that that authority is
restored.
The Chair. Well, I would just say that--likely, if you are
successful in your nominations, I guarantee you we will be back
to this very specific question. And so, we are trying to get an
intent here, and I think I have it.
But look, consumers deserve to get these refunds without
great hampering, and I think that is really important. So, if
anybody has anything else to say on that?
[No response.]
The Chair. OK. PBMs. You know, I think that in this
information age, where people can use information and data and
do all sorts of interesting things that are deleterious, we
want to see a strong FTC use their enforcement capabilities. On
PBMs, do you support the FTC playing a more aggressive role
here?
Ms. Slaughter. Yes.
Mr. Ferguson. The PBM market is very complicated. I really
look forward to the results of the 6(b) study that the FTC is
conducting, and, you know, I think it would be very important
that whatever the FTC does in this space is, A, based on what
the 6(b) study reveals, and be consistent with its existing
authority, or whatever additional authority Congress confers.
The Chair. Do you think that applying the unfair and
deceptive practices to PBMs is a key issue for the FTC?
Mr. Ferguson. I certainly think that if the 6(b) study
reveals that PBMs are engaged in unfair and deceptive acts or
practices, the FTC should act. Health care costs have gotten
higher and higher and higher over the last 15 years.
They are rapidly outstripping inflation. If unfair and
deceptive acts on the part of PBMs are contributing to that, I
think the FTC should be acting. But I am really, really
interested to see what the 6(b) study reveals.
The Chair. Or manipulative practices? I think Senator
Grassley and I--probably have been working on this issue for a
long time.
And I think, well I don't want to speak for Senator
Grassley, but we have come to a conclusion on legislation that
more specificity, giving the FTC direction, very specific
direction on what are considered illegal acts.
If you would take for the record, looking at that
legislation and give us feedback, if you think that those
standards are standards that you think are important to
enshrine into law. In the context of, again, the practices
themselves, do you think that they are manipulative, or unfair,
or deceptive?
Mr. Ferguson. Absolutely. I have looked at the bill. I am
more than happy to continue discussing that with you and your
staff.
The Chair. Yes, I will ask for the record your thoughts on
whether those kinds of things, being given to the FTC, do you
think that meets that unfair, deceptive, or manipulative. OK.
Ms. Holyoak.
Ms. Holyoak. Yes. This is an extremely important issue.
Having access to affordable prescription drugs is an important
issue for Americans. In the State of Utah's Solicitor General,
we have recently sought to intervene in a class action relating
to PBMs and these types of practices.
I am, like Mr. Ferguson mentioned, I do want to understand
these issues better and talk to the experts with respect to
that 6(b)--who are working on that 6(b) study, to understand
these practices, and understand if we have the tools now to go
after them.
I think there are both issues--there could be potential
issues on the competition side, as well as the consumer
protection side, and see what laws we have. And then, if
confirmed, continue that dialog on your legislation.
The Chair. Thank you. Mr. Dziak, I am going to send to the
record the Consumer Product Safety Act prevents disclosure of
certain information to consumers without express permission
from the company.
I think this is something the Commission has struggled with
when you are trying to get important information like on
strollers or elevators and things of that nature. Do you
support reforming this provision? And so, we will take that for
the record. Senator Cruz.
Senator Cruz. Thank you, Madam Chair. Congratulations to
each of the nominees. I have to say at the outset, all four of
the nominees before us are qualified for the positions for
which you have been nominated. Each of you has impressive
professional credentials.
And I have to note, Commissioner Slaughter and General
Holyoak, your children are absolutely precious and gorgeous.
They are eight of the most fantastic children who have been in
this hearing room. And I will say being married to Heidi Cruz,
the mom of two girls, I respect both of you and the
professional careers you have led while taking on the
extraordinary challenging job of being a mom at the same time.
That is not easy, and you have a lot to be proud of. I also
want to say to General Ferguson and General Holyoak, you are
both serving as State Solicitors General. I might question your
judgment and sanity for choosing to lose--leave one of the best
jobs on planet Earth to join the FTC, but nonetheless,
congratulations on the nomination and I look forward to your
serving honorably there.
Commissioner Slaughter, I want to continue a conversation
that you and I had earlier this week, and it is a conversation
about what has been happening at the FTC. The FTC, I spent 2
years there. It is an institution I love. It is an institution
with incredible men and women who are dedicated career
professionals. It is a bipartisan institution. It is an
institution that for decades has worked well and built a
reputation for ethics and integrity.
And as you know, I am deeply concerned that in the last 2
years, that reputation has been damaged profoundly. Now, I
would note these questions really should not be directed to
you. Chair Khan, who is sitting in this hearing room today, has
not testified before this committee since April 21st, 2021, her
confirmation hearing. That is 882 days without a single
oversight hearing.
So, this committee has not had the opportunity to question
Chair Khan on what has been a disastrous tenure as Chair of the
FTC. Since she is not at the witness table right now, although
I hope she will be very soon, I am going to instead ask you
about the conduct that has occurred under her watch, but under
your watch as well.
And I recognize as a Commissioner, it is not easy to stand
up to the Chairman of the Committee, particularly a Chairman of
the same party that appointed you. As you know, in February,
former FTC Commissioner Wilson wrote a Wall Street Journal Op-
Ed in which she explained her decision to resign from the FTC.
One of the basis of that decision, she criticized your
decision and Commissioner Bedoya's decision to heavily redact
one of her dissents, which had highlighted the fact that
Chairman Khan had ignored the recusal advice of the FTC's
designated agency ethics official.
Unlike with other information, FTC information that is
protected from disclosure by law, here, there is no statutory
prohibition on Commissioner Wilson revealing the designated
agency ethics official's advice in her dissent.
Yet the FTC majority, you and Commissioner Bedoya, imposed
the redactions in voluntarily under the guise of protecting
staff deliberations. I have to admit, I have never seen this
happen before. I have never seen a dissent forcibly redacted.
Now, since those redactions, the original dissent has been made
public and is in the public domain.
And I want to compare the original dissent to what you
voted to release. The original dissent said, and I quote,
``here, the FTC ethics staff had strong reservations with Chair
Khan participating in an adjudication in this proceeding, where
fairly recently before joining the Commission, she repeatedly
called the FTC to block any further acquisition of Facebook.''
In the view of the FTC ethics staff, these statements would
raise a question in the mind of a reasonable person about Chair
Khan's impartiality as an adjudicator in the Commission's Meta
Within Merger Review.
The FTC ethics staff therefore concluded that a reasonable
person would question Chair Khan's impartiality when serving as
an adjudicator in ``Meta Within.'' Those are very serious
allegations that the career staff advised the Chair that it was
unethical of her to offer to participate in the proceeding. She
disregarded that advice.
Acted as a deciding vote, nonetheless. And then when
Commissioner Wilson sought to let the world know about it, you
and your colleagues voted to release--on the right is what was
released. That entire paragraph was blocked out.
Do you believe that the information that Commissioner
Wilson was focusing on was relevant to the public allegations
that the Chair was behaving unethically? And if so, do you
think the Commission operated properly, hiding it from the
American people, and demanding that it be redacted from the
dissent?
Ms. Slaughter. Thank you for the question, Senator. And I
want to say thank you for your kind words about my family. I am
incredibly proud of them. And I appreciate the opportunity to
talk about this.
You are right that there is no statute that requires the
protection of information prepared by staff for Commission
deliberations, but there is a Commission rule. It was put in
place by Chairman Jim Miller in the 1980s, and it says that
staff deliberations cannot be made public, or information
prepared by staff for Commission deliberations cannot be made
public.
And it has been applied equally to Commissioners of both
parties. So, Commissioners decide what to put in their opinions
and dissent. I have never chosen to put, I don't believe I have
ever chosen to put information that would have to be redacted
into opinions I have written, but I know my former colleague,
Commissioner Chopra, did sometimes, and his opinions had to be
redacted pursuant to Commission rules.
And I think the rules are there. We should follow them
because they are there. But I also think they are there to
protect something really important, which is candid advice from
our staff. I rely on our staff to tell me what they think.
That is valuable when I end up agreeing with them. It is
even more valuable if I don't agree with them at the end of the
day, and I want them to feel protected that they can give me
that candid advice without being caught in between public
debates and debates between Commissioners.
We are all free to adopt staff opinions as our own, to
articulate our reasoning, and that is an important thing for us
to do, because I do think we should be publicly accountable for
the choices that we make. But I don't think that we should be
putting staff in the middle of those debates, and the
Commission rules prohibit us from doing so.
Senator Cruz. Well, I would point out that has not been the
practice of the FTC in the past. And I would like to enter into
the record two documents, one from 1999, a second from 2007,
both of which are FTC public documents released to the public
that describe the recommendations of a designated agency ethics
official.
And the FTC has done that in the past. And in this
instance, when the allegation is the Chair is behaving
unethically, I think the Commission has an obligation to make
those allegations public, and it explains a lot why the staff
believes integrity has gone down so severely in the last two
years. I would like to enter these in the record.
The Chair. Without objection.
[The information referred to follows:]

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The Chair. Senator Tester.

STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA

Senator Tester. Yes, thank you, Madam Chair. And I want to
thank all of you for the jobs you have done and the jobs that
hopefully you will be confirmed to depending on how this
hearing goes. So, I just want to ask really, how many people
get robocalls of the folks that are testifying? Do you get them
every day? Every day? Every day.
Well, I am with you. In fact, I got one yesterday. I got
two yesterday. And they go something like this, hi, I am Amy,
and I am here to help you with your back taxes. And if you say
anything or hit a button, it starts over and says, hi, I am Amy
and I am here to help you with your back taxes.
This kind of stuff drives me insane. And you guys all know
that the FTC is about unfair and deceptive business practices.
Oftentimes when I get these calls, they are from a number in my
neighborhood, OK. And yet, I go through the whole process,
which is a waste of life, and I get done, and they say, well,
we are going to take you off the list, and I guarantee you
either later that day or the next day, I get it.
We have had many hearings on robocalls in this committee.
It has gotten worse. It hasn't gotten better. So, for each one
of you that are on the FTC docket, could you tell me what the
FTC's role is or what you see the FTC's role is? In
Commissioner Slaughter's case, what the FTC has done about it.
I will start with--I will go from right to left, how is that?
Ms. Holyoak. All right. I guess I am the right, right?
Senator Tester. That is right. My right.
Ms. Holyoak. All right. And this is an excellent question.
This is the number one complaint that the FTC receives, over 3
million unwanted calls last week. And the FTC has a strong
history of this. As we know, the do not call registry, which I
think we all loved, and applauded----
Senator Tester. But it doesn't work--it doesn't work----
Ms. Holyoak. And I think that is the question is, what is
happening now? I think since that time there has been
technological advancements. I know the FTC and FCC have been
working hard on this, and this is an issue that impacts our
state as well and that we have heard from many complaints on
this.
And I would, if confirmed, would work--would support
continued enforcement on this. And particularly because it is
not just telemarketers, like you said, but there are lots of
frauds and scams in this----
Senator Tester. Bingo.
Ms. Holyoak.--and they are getting even smarter and more
brazen. And this is something that I would, if confirmed,
support strong enforcement of.
Senator Tester. Mr. Ferguson.
Mr. Ferguson. I totally agree with Mrs. Holyoak. I have
gotten to the point that if I get a number from my area code I
don't recognize, I don't even take the call because it is
almost certainly going to be what you just described, Senator
Tester.
So, you know, as the scammers get smarter, the FTC needs to
do everything it can to keep up. My understanding is the FTC is
working extremely hard on this, but, you know, more work will
need to be done, and if I am confirmed, this would be one of my
top priorities.
Senator Tester. Commissioner.
Ms. Slaughter. I agree with all of them. I think the thing
that is really important is the do not call list worked fine
for legitimate telemarketers. It does not work very well for
somebody who is already perpetrating a criminal operation to
commit a fraud or a scam and may be located overseas.
This is why I think the focus really needs to be on the
pipes. How are the calls getting to us? So, we have targeted
our enforcement toward VoIP providers recently who are able to
sort of turbo charge the provision of these spoofing, auto
dialing calls.
This committee passed important legislation into law a few
years ago, the TRACED Act, that also helps authentic--call
authentication that makes it more important. I will tell you my
own view is we should apply all of our tools, but I think the
onus really needs to be on the carriers to stop the illegal
traffic over their pipes, and some of that does go beyond what
the FTC is able to do, but we should be throwing everything we
can at it because it is so annoying to everybody.
Senator Tester. Yes, it is unfair. It is deceptive. It is
annoying. They are crooks. I don't know if you guys assess the
penalties or the FCC assess the penalties, but I would make
sure they don't have a dime left in their bank account.
Ms. Slaughter. Can I just respond? I think the penalties
under--for us, the telemarketing sales rule, again, can be
effective for telemarketers, but the crooks that you are
talking about who are already committing criminal activity are
not particularly caring about a civil penalty. Which is why I
think we need to make sure that the system is not facilitating
the calls, not just that we are thinking penalties can stop the
activity.
Senator Tester. Well, as I said in my opening, and I have
run out of time otherwise I would ask three more questions, I
appreciate your guys' willingness to serve. I think you all
have the ability to know what the right thing to do is, and if
you do that, you will be fine. Thank you, Madam Chair.
The Chair. Thank you, Senator Tester. Under the buzzer.
Senator Thune, would you like to go next or would you like to
defer to Senator----

STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA

Senator Thune. I will make this quick. I thank you, Madam
Chair. Welcome to all of you. Congratulations on your
nominations. The FTC has indicated it may regulate emerging
technologies like artificial intelligence. And the question I
have is, do you believe the FTC has the authority to regulate
AI or should it be left to Congress? Ms. Slaughter.
Ms. Slaughter. Thank you, Senator. I think a really
important thing in the space of AI, as well as any other
emerging technology, is that existing law does apply to new
technologies. The FTC Act has adapted to new technologies over
its 100 plus year history.
It may be that new authority is also needed or new laws are
needed, and that is entirely up to Congress to debate and
decide. So, our job is to look at the laws that we have, which
as we have discussed, primarily prohibit unfair and deceptive
acts and practices and unfair methods of competition.
And some of those may be triggered by some deployments or
uses of AI, and we should be thoughtful about applying them.
There may be things that Congress deems are problematic that go
beyond what the FTC Act covers, and that is up to you to decide
whether additional rules are required.
Senator Thune. Mr. Ferguson.
Mr. Ferguson. No, I agree with Commissioner Slaughter that
the FTC doesn't, you know, regulate specific industries. It
enforces rules and laws across all industries. If the conduct
that AI facilitates violates those laws or rules, I think that
the FTC should act.
But insofar as, you know, we are contemplating sort of a
grand regulatory framework for AI, I think that that is
squarely within the purview of Congress. If we are going to
address an emerging technology sort of square on rather than
taking existing rules that apply to everybody, I think that has
to be with Congress.
Senator Thune. Thank you. Ms. Holyoak.
Ms. Holyoak. Thank you. And I agree with Commissioner
Slaughter and Mr. Ferguson on all of those points. And I agree
that there are quite a bit of concerning things with respect to
artificial intelligence in the frauds and scams like we were
just talking about with robocalls.
Those are going to be used to become even better phishing
e-mails, even better texts, even more--it is going to be
directed at us and look so real that we won't be able to tell
what is real and what is not, and it is concerning.
And I think we apply the laws that we have, but certainly
if I am confirmed, we will talk to you about if there are gaps
that we think that we need to address.
Senator Thune. Well, and let me just say, I have serious
concerns about the FTC regulating or making any attempt to
regulate AI. There is no doubt that there are breakthroughs in
AI that are likely going to have significant implications for
society and U.S. global competitiveness, especially as China
and the EU move to assert their world leadership in the space.
But rather than having the heavy handed regulations from
agencies like the FTC that I think in many cases stifle
innovation in this emerging space, I have been working with my
colleagues up here on both sides of the aisle to develop a
light touch approach that avoids the unnecessary Government
intervention that so that innovation can continue to flourish.
Senator Schatz and I introduced the Internet PACT Act,
which is bipartisan legislation that would hold big tech
accountable by providing much needed transparency to online
consumers, and it is my hope that the Committee will consider
the legislation in a future markup.
Among other things, the bill would stipulate that Section
230 immunity does not apply to civil enforcement actions
brought by the Federal Government. Would removing Section 230
immunity from enforcement actions brought by the Federal
Government, such as the FTC, be beneficial to consumers? And if
so, why?
Ms. Slaughter. I am happy to start. Yes, I think that would
be really important. We frequently find ourselves in
investigations where we are stymied by the application of 230
in civil enforcement actions.
And I think that it is important, where the law has been
violated, that there not be a get out of jail free clause just
for intermediaries. You know, they would have to have actual
liability. I don't think your bill would impose direct
liability on them, but it would give us the opportunity, if
liability applies, to pursue it without some special immunity,
and I think that that would make a big difference.
Senator Thune. Mr. Ferguson.
Mr. Ferguson. I don't want to speak for Mrs. Holyoak, but I
bet she agrees with me on this. I don't think any State
litigator in the country has not had to confront 230 when
trying to address the harms that, you know, some social media
platforms inflict on the citizens of our states.
You know, whatever 230 was originally understood to mean,
it has become incredibly broad. And I think cabbing it in its
immunity for Federal enforcement actions, and, you know,
hopefully someone will consider for State enforcement actions
as well, which is where a huge bulk of the consumer protection
work is done on a daily basis in this country, would be truly,
truly meaningful for American consumers.
Ms. Holyoak. I agree.
Senator Thune. OK. All right. That is--my time expired.
Thank you, Madam Chair.
The Chair. Thank you. Senator Hickenlooper.

STATEMENT OF HON. JOHN HICKENLOOPER,
U.S. SENATOR FROM COLORADO

Senator Hickenlooper. Thank you, Madam Chair. And thank all
of you for your public service already served and for your not
just willingness, but your eagerness to step into what by any
measure is going to be a very complex and challenging
environment. So, let me start off, Ms. Holyoak and Mr.
Ferguson, the new volunteers.
As we discussed with both of you, a strong data privacy
legislation would empower consumers, creators, help us grow our
modern AI-enabled economy. What role do you think the FTC
should play to protect consumers' data?
Ms. Holyoak. I guess I will take a stab at that. As you
note, data privacy is an issue that is very concerning to many
Americans. It touches on so many aspects of our lives.
The FTC has had a strong history of investigations and
enforcement actions into all types of privacy related areas,
including collection, storage, usage, all those types of
things. So, I do believe the FTC is well-positioned to take on
that type of role. I also know that my fellow--mister--I am
sorry.
Mr. Ferguson, I think, has--might agree with me on this. I
know that Virginia and Utah also have strong data privacy laws.
But the Commissioners, Commissioner Slaughter, Commissioner
Bedoya, and Commissioner Khan have also spoken about these
issues and that it is probably best for Congress to speak here
for--to have a comprehensive privacy legislation in this space.
Mr. Ferguson. Yes, I agree. Virginia passed the data
privacy law in 2020 like lots of states are doing, you know,
consistent with sort of our Federal structure. States are doing
all sorts of experimenting on the best approach here.
But data privacy sort of uniquely touches on questions of
interstate commerce that make it difficult, I think, for the
states to address this square on without creating sort of a
patchwork system that can be very difficult for regulated
entities to comply with. It can be very difficult for consumers
to know what their rights are, you know, depending on where
violations occur, where the conduct took place.
And so, you know, I think sort of consistent with our
Constitutional design, this is precisely the sort of thing I
think, that cries out for Congressional intervention. I think
that the FTC as an agency has some experience in this, and if
the, you know, if Congress were looking for an agency to sort
of lodge this authority, I think the FTC is a good candidate.
But I think the most important thing here is for Congress
to take the lead in addressing what is, you know, a brand new
market and a brand new market concern that touches the whole
country.
Senator Hickenlooper. All right. Thank you for that. And
Ms. Slaughter, I will let you answer that as well, but then I
will have--you get your own question as the incumbent, or one
of the incumbents. The FTC has established the Office of
Technology to assist with investigations and rulemaking to help
protect consumers online.
How will technology--how well technology experts within the
agency help to enforce the FTC Act? And within that, buried,
and you have to respond to this, but some of the concern all of
us have is how can we make sure that the FTC continues to have
the talent to keep up with these incredibly fast evolutions and
innovations in technology.
So last part of the question is, are additional authorities
and subject matter experts needed to meet the challenges
consumers face?
Ms. Slaughter. Thank you so much, Senator. First on data
privacy legislation. I have long been and continue to be a
strong supporter of Congress passing comprehensive privacy
legislation. I think this is a really important area. It is one
where lots of people on this committee, and in the public, and
at the agency feel a huge sense of urgency.
It is also why, even while I think Congress should move
forward, I have supported the FTC really making sure we are
doing everything we can with the tools that we have right now.
And it is why I supported our ongoing open rulemaking
proceeding on commercial surveillance and data security.
I want to be really clear, because I know a lot of members
have expressed concerns about wide ranging FTC regulation. We
can't do, by regulation, what we could not do in individual
enforcement actions. The authority that Congress has given us
allows us to promulgate rules in the consumer protection space
that address unfair, deceptive acts and practices that are
prevalent in the economy.
Those are two substantive guideposts. So those are the
kinds of things that we could bring individual enforcement
actions on. You can do much more with legislation. We are
cabbed into the FTC Act.
You can look at these issues much more broadly. So, I think
we should be doing that, but it is not nearly as much as you
could be doing. On your question about Office of Technology, I
was really proud to support its establishment.
I am grateful to Chair Khan for setting it up for exactly
the reasons that you articulate. It is critically important
that we have the analytical skillsets in-house to understand
how markets are developing and moving. Technologists are going
to be a huge part of that. Almost every single case we bring
implicates technology of some kind.
Lawyers have excellent skills, economists have excellent
skills, but we are not programmers for the most part, we are
not coders, and making sure that we understand what is going on
behind the scenes in the companies we investigate is critical
to us getting those investigations right and getting the
remedies right.
So, embedding technologists on our case teams, the same way
we have embedded economists, I think is going to be a really
important way to move forward. And in terms of what more do we
need? I would be remiss if I didn't beat the drum that I always
be before this committee, which is in terms of the resources
that we have.
The FTC does an incredible amount of work with the funding
that Congress is generous enough to give us by hiring the best
talent, having them have--giving them a reasonable amount of
work that isn't totally overwhelming given the demands of the
market, really requires an ongoing infusion of resources, and I
think that remains really important for the Commission.
Senator Hickenlooper. Yes, well, that is a point well made.
I am out of time. It seems so unjust, but let me just finish by
saying, I appreciate all of your nonpartisanship. This is a
Commission that really should be as much as possible,
bipartisan, nonpartisan, really working together to get some of
these basic issues, because I think there is so much we agree
to.
The Chair. Senator Fischer.

STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA

Senator Fischer. Thank you, Madam Chair. And thank you to
the nominees for being here today. I really appreciate your
desires to continue with your public service.
If confirmed, you will be tasked with vital
responsibilities protecting Americans' personal safety.
Fulfilling these responsibilities will also allow free
enterprise and innovation to thrive, whether it is identifying
monopoly misconduct or market oriented safety solutions.
Mr. Ferguson, I wanted to focus on how Congress provides
resources and guidance for Commission activities. In our
conversation, I really thought your insights on this are really
helpful, and I would like all of our colleagues to hear this.
So, from your perspective, is there a key policy that lawmakers
should be focusing on right now to provide better guidance or
authority to the Commission?
Mr. Ferguson. Thanks, Senator Fischer. I enjoyed our
conversation as well. Like we discussed, and like we just
discussed with Senator Hickenlooper, from the perspective of a
State law enforcer, I think sort of a critical question for
Congress to address is data privacy, largely because in the
absence of Congressional action or what I think is uniquely an
interstate commercial question, the states have had to act.
That is good. That is how the Constitution was designed.
But as the states act and as they experiment, as they come up
with unique solutions, we end up with this patchwork problem,
which can be very difficult for regulated entities.
It can be very difficult for consumers. I think that of all
of the, sort of, like commercial activity that takes place in
the country today, this so clearly falls within the interstate
commerce power that the founders gave to Congress. And I think
this is precisely the sort of thing that Congress should take
the lead on.
I agree with Commissioner Slaughter that insofar as these
issues touch on the FTC's existing authority, I think it is
critically important for the FTC to be doing what it can with
the authority that it has.
But this issue is new, it is complicated, and it affects
people in a way the Commission simply aren't going to be able
to grapple with the way that a Senate can with its
constituents. And so, I think this really, really cries out for
Congressional leadership in a unique way.
Senator Fischer. You know, when you are looking at the
states that are moving forward in this area, it is fairly new,
but there still are a couple that are moving forward. Do you
have any that you would hold up some of their--I am going to
put you on the spot--some of their practices where they have
been this laboratory, and they are experimenting basically, so
we can watch and see what works. So, what works?
Senator Hickenlooper. Well, I am the principal vindicator
of Virginia's laws and of its sovereign interests.
Senator Fischer. You think they are the best.
Mr. Ferguson. So, you know, I certainly am going to say
good things about Virginia's law. But I recognize that, you
know, balancing these issues, defining the harm that arises in
a privacy violation, deciding, you know, where to lodge
enforcement authority--in Virginia, we are giving it to the
Attorney General.
You know, I think that that works very well in Virginia.
But there are all sorts of, you know, contrary approaches other
States are trying. The experimenting is good. That is part of
the Constitutional design. It is a feature, not a bug.
But, you know, when you wind up with potentially 50
different approaches to a truly interstate commercial question,
I think that is exactly when Congress needs to step in.
Senator Fischer. OK. Thank you. Ms. Holyoak, for many
years, the FTC consistently ranked among the very best Federal
agencies to work at with very high employee morale, but I am
disappointed to see that that morale is taking a nosedive.
For an agency that must attract talent with technical
skills, and workplace satisfaction is critical. It doesn't
matter how much funding Congress is going to throw at the
agency. So, if you are confirmed, how do you plan to engage
with experienced career staff to advance your goals and also to
advance really the missions and responsibility of the
Commission?
Ms. Holyoak. Oh, thank you for that question. As Solicitor
General, I oversee approximately 40 attorneys, but I work with
many more in other divisions that I do not oversee on other
cases in which I have a leadership role.
With all of them, I think it is very important to come in
and understand their perspectives, understand their
recommendations. And so, if confirmed, I would want to just day
one meet with all of the offices.
I want to listen to them, understand what their perspective
on these issues, understand their concerns and the best way
that I could support them.
Senator Fischer. Thank you very much. Commissioner
Slaughter, I am concerned that the FTC has lost all capacity
for bipartisanship. I really, really appreciate hearing all of
you and your comments today. When Commissioner Wilson resigned,
she said nice things about you. Very nice things.
She noted that you provided transparency and robust lines
of communication with all Commissioners, in addition to
constructive debate on policy issues, respect for the agency's
experienced and knowledgeable staff.
Do you think that there is a way forward at this point in
time for the Commission to be able to instill these basic
principles again?
Ms. Slaughter. Absolutely. I think working with people who
have different views from you is not only important, it is an
incredible opportunity. It is an opportunity to learn. It is an
opportunity to build consensus. It is how I felt when I worked
in the Senate. And it is one of the great privileges of working
at an agency like the FTC. So, yes, I believe there is a way
forward and I am fully committed to it.
Senator Fischer. Thank you. Thank you, Madam Chair.
The Chair. Thank you. Senator Klobuchar.

STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA

Senator Klobuchar. [Technical problems]--Ms. Slaughter. I
appreciate that. Mr. Dziak, welcome. I wanted to ask you about
a specific program, and that is the Virginia Grant Baker Pool
and Spa Safety Act. I worked on this as a brand new Senator
when we had a tragic drowning of a little girl, Abigail Taylor,
in Minnesota.
She actually survived the pool incident, was maimed, and
came out of it after 16 surgeries, and then died. And it was a
malfunctioning situation with the drain. We passed a law. I am
really proud of it.
We have gotten the deaths down to practically none as of a
few years ago of kids in public pools. It has been a real
victory, actually, and I just want to make sure that you will
work with us to supporting the CPSC's Drowning Prevention
Program.
Mr. Dziak. Senator, I am aware of your long standing
interest in this matter. In fact, we have, as a staffer, worked
with Abbey's Hope and other pool safety advocates. The
seriousness of this issue can't be overstated.
Drownings for children between the ages of 1 and 4 is the
number one cause of death, and the number two cause of death
for children between the ages of 5 and 14. So, yes, I am
committed to working with you, this committee, and all outside
organizations on pool safety issues.
Senator Klobuchar. Thank you very much. I appreciate that.
And then I will turn to FTC. I had some really good discussions
yesterday with you, Mr. Ferguson, and Ms. Holyoak. Thank you
very much. I am going to start with that. The, as you know, the
merger activity hit record levels in 2021, and we have many
issues related to tech.
We still haven't passed a tech competition bill since the
onset of the internet, even though we have gotten a number of
bills through the Judiciary committee. And there are major
suits, as you know, going on at both the Justice Department
antitrust and the FTC. Senator Grassley and I passed our Merger
Filing Fee Modernization Act. Worked with Senator Lee on that.
Ms. Holyoak and Mr. Ferguson, do you want to talk about
your expectations about the FTC's merger review workload, and
maybe, Mr. Ferguson, you want to focus on the Google ad-tech
case and the other bill passed about not being able to move
venues for the tech companies on antitrust cases? That was
Senator Lee's bill with me.
Mr. Ferguson. Sure. Thank you, Senator Klobuchar. I enjoyed
our conversation yesterday as well. Like I said in my opening,
Virginia is the lead co-plaintiff with the United States in the
Section 2 suit alleging the monopolization of the ad-tech
markets by Google.
When we filed our suit, Google understandably tried--we
filed it in my home courts in the Eastern District of Virginia,
and Google tried to transfer that suit up to go alongside a
pending MDL in the Southern District of New York.
And we filed our suit not terribly long after the Congress
had passed and this President had signed the State Antitrust
Enforcement Venue Act, the one you referred to. And I argued in
that--against that transfer motion on the ground, that, you
know, if you--if the court were to transfer us up to New York,
they would kind of be defeating the purpose of this law that
Congress had just passed to protect states from having to do
MDLs and antitrust enforcement cases.
And the District Court agreed and kept us in the Eastern
District of Virginia, and alongside the United States and our
other coalition states. You know, that suit is moving apace,
headed toward trial. So, you know, I got to experience on the
ground Congress's very good work in this area.
On, you know, on the ad-tech case itself, I think it is
critically important--I know that Congress is engaged
appropriately in a robust debate about whether additional
antitrust enforcement tools are necessary to confront the
challenge of big tech, which I do think is the competition
question for our time. But, you know, I do just at least want
to note, I think there is a lot of good work that enforcers can
do with the existing laws.
Virginia and Utah have both been on the forefront of doing
everything that they are able to do with the existing laws. I
know that Mrs. Holyoak has done a ton of work on this in the
big tech space. Virginia is doing it as well.
Senator Klobuchar. Thank you, Mr. Ferguson. I am just going
to give her one chance to answer as well on this question. And
I know that I have already talked to Commissioner Slaughter
about this, and she does great work. So, I am going to give our
new nominee here a chance to pitch in on this.
Ms. Holyoak. Absolutely. And thank you, Senator. And I
enjoyed our conversation the other day, and I absolutely agree
with everything Mr. Ferguson was saying. We are involved in
those same cases. And thank you for your work on the Venue Act.
That is extremely important. As far as, and I will just say
quickly, the volume of merger transactions, it is concerning,
and we want to make sure that we do it and we do it right. I
would like to, if confirmed, talk to the FTC staff and
understand the volume and how best to support them to make sure
we get it done.
That we stay vigilant, particularly in digital markets, as
many of the Commissioners have talked about.
Senator Klobuchar. All right. Thank you, all of you.
Appreciate it. Thank you.
The Chair. Senator Blackburn.

STATEMENT OF HON. MARSHA BLACKBURN,
U.S. SENATOR FROM TENNESSEE

Senator Blackburn. Thank you, Madam Chairman. Thank you to
each of you for being with us. We are pleased to move forward
with the confirmation hearing. The FTC has not had Republican
Commissioners for quite a period of time, and Senator Fischer
pointed that out. So, I want to do a few yes and no questions,
and I want an answer from each of you.
We will start with Ms. Holyoak, Mr. Ferguson, and then Ms.
Slaughter. Data privacy is an area where I have done a good bit
of work as we are doing hearings on AI and quantum and looking
at renewing the quantum initiative.
What we are hearing from witnesses is that we need a
Federal privacy standard. That means Congress needs to take an
action. And we were all a little bit surprised that last
November the FTC moved forward with a rulemaking on commercial
surveillance and data security. And the agency has, of course,
asked for public input on these roles.
So yes or no, does the rulemaking exceed the authority
given to the FTC by Congress? Ms. Holyoak, start with you, yes
or no?
Ms. Holyoak. Thank you for that question. And it is
difficult to know because I haven't looked at----
Senator Blackburn. Yes or no?
Ms. Holyoak. I don't know.
Senator Blackburn. You don't know. OK, Mr. Ferguson, is the
FTC exceeding its authority?
Mr. Ferguson. I don't know, Senator. I would have to
consider that very carefully.
Senator Blackburn. Ms. Slaughter.
Ms. Holyoak. No, I do not believe we are.
Senator Blackburn. Well, I think that you are, because we
have not given you that authority to move forward with privacy.
OK, second question. Yes or no, again. Would you support the
FTC tabling this rulemaking until Congress provides clear
legislative authority and direction to the agency? Again, Ms.
Holyoak, starting with you.
Ms. Holyoak. Yes, I would support that.
Senator Blackburn. OK. Mr. Ferguson.
Mr. Ferguson. I would as well.
The Chair. Ms. Slaughter.
Ms. Slaughter. No, Senator. We can only in a rule----
Senator Blackburn. No, ma'am. Yes or no?
Ms. Slaughter. No. The answer is no.
Senator Blackburn. OK. AI regulation, I mentioned this
earlier. If confirmed, would you support FTC actions related to
AI other than those concerning fraud, deception, and
competition issues? Those clearly fall under the FTC's
jurisdiction.
What we are concerned about is restrictions on the ways in
which companies handle consumer data or looking at bias in the
algorithms used to fuel AI applications. So, would you
confirm--would you support the FTC going beyond the authority
that they have been given when it comes to AI? Ms. Holyoak.
Ms. Holyoak. I would not support going beyond any of the
authorities, but I would want to understand all--statutes----
Senator Blackburn. I am not hearing you--not hearing you.
Ms. Holyoak. Oh. I am so sorry. No, I would support not
going beyond any of the authorities that Congress has--been
given us.
Senator Blackburn. OK. So, you are a no. OK. Mr. Ferguson.
Mr. Ferguson. No, I do not think the FTC should exceed its
statutory authority.
Senator Blackburn. OK. Ms. Slaughter.
Ms. Holyoak. No, I do not think the FTC should exceed
statutory authority.
Senator Blackburn. OK, thank you. The BOTS Act was passed
in 2016. This is something that I introduced. Senator Schumer
carried it in the Senate. And it would prohibit scalpers from
using bots to circumvent online sales restrictions and automate
the purchases of mass amounts of tickets selling.
Of course, we had this issue come up with some entertainers
earlier this year. We have had a hearing on it. But the FTC has
only brought forward one single enforcement action under the
BOTS Act, and they got the authority that is there. So, if
confirmed, will you commit to enforcing the BOTS Act, yes or
no?
Ms. Holyoak. Yes, I would.
Senator Blackburn. Thank you.
Mr. Ferguson. Yes.
Senator Blackburn. OK. Ms. Slaughter?
Ms. Slaughter. Yes.
Senator Blackburn. Why do you think that the FTC has chosen
not to use the authority--the authority that is given to them,
Ms. Slaughter?
Ms. Slaughter. Well, Senator, this is actually a piece of
legislation I was privileged to work on with your office when I
served for Senator Schumer. I think it is critically important.
I think it is important that we bring the cases, which also
means finding the cases and looking within the existing----
Senator Blackburn. But we are going be working with you to
continue to continue to get that--to get those enforcement
actions done.
Ms. Slaughter. I am enthusiastic about that.
Senator Blackburn. Mr. Dziak, I have a question for you on
the 6(b) authority, but I am out of time, so I will submit it
to you for a written response. Thank you all. Thank you, Madam
Chairman.
The Chair. Thank you. Senator Markey.

STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS

Senator Markey. Thank you. Today, big tech collects vast
amounts of data on children and teens, building detailed
profiles of every user. And they use that personal information
as raw material to power algorithms that push toxic content and
targeted advertising that harms young people.
You just have to look at the results. One in three high
school girls contemplated suicide in 2021. At least one in ten
girls attempted suicide that very same year. And amongst LGBTQ
youth, that number was more like one in five. That is a
staggering number. We must address this mental health crisis.
That is why Senator Cassidy and I introduced the Children
and Teens Online Privacy Protection Act, or COPPA 2.0, to put
parents and young people back in control of their data.
Commissioner Slaughter, Ms. Holyoak, and Mr. Ferguson, do you
agree that children and teens deserve robust privacy
protections, yes or no?
Ms. Slaughter. Yes. Absolutely.
Mr. Ferguson. Unequivocally, yes.
Ms. Holyoak. Yes.
Senator Markey. Thank you. To the same three nominees, do
you agree that targeted marketing can be inherently
manipulative to children and to teens, yes or no?
Ms. Holyoak. I think it can be, yes.
Senator Markey. Thank you.
Mr. Ferguson. I certainly think it can be manipulative.
Ms. Slaughter. I also think it can be manipulative, and I
will point out that the FTC put out a report last week about
the ways in which advertising to children can be problematic.
Senator Markey. Thank you. And I agree with that report.
In fact, the Federal Trade Commission did just release a
report stating that children have a difficult time recognizing
advertising that is embedded into entertainment content. And
finally, if confirmed, will you commit to strictly enforcing
COPPA's requirements? Ms. Holyoak.
Ms. Holyoak. Yes, absolutely.
Mr. Ferguson. Absolutely. Yes.
Ms. Slaughter. Yes.
Senator Markey. I am glad to hear that, because we need to
address the mental health crisis immediately.
I was proud that in July, the Senate Commerce Committee,
thank you, Madam Chair, thank you Ranking Member Cruz, advanced
my bills and the Cassidy's bill with a voice vote without a
single objection, and I look forward to advancing that bill on
the Senate floor and working with the Commission to ensure
children and teens have robust and comprehensive privacy
protections online, not just up to age 12, but up to and
through age 16, in terms of targeted advertising, in terms of
rights for parents and children and teenagers to be able to do
something about that targeting.
I also want to discuss the hottest topic in Washington,
artificial intelligence. We are having an AI moment, but data
privacy, protection from bias, algorithms, and algorithmic
justice are not new topics.
We know that biased AI powered algorithms such as facial
recognition systems can discriminate against people of color
and other disadvantaged communities right now. Commissioner
Slaughter, Ms. Holyoak, and Mr. Ferguson, do you agree that
algorithms can disproportionately harm minority communities?
Ms. Slaughter. Yes, I believe they can.
Senator Markey. Mr. Ferguson.
Mr. Ferguson. Yes, under some circumstances, I am sure that
they can.
Ms. Holyoak. Yes, I agree.
Senator Markey. Thank you. And I know that, you know, the
evidence is out there, as we said earlier with the other
report, to document those biases that are built right now into
algorithms that lead to real world harms for minority
populations.
In February, for example, a pregnant black woman was
wrongfully arrested for robbery and carjacking due to a
mistaken result from facial recognition technology. As
companies adopt complex algorithms to make critical decisions
on everything from housing to consumer prices, the Federal
Trade Commission must keep a very close eye on this conduct and
ensure algorithmic discrimination does not become a feature of
our marketplace.
I thank all of you for your willingness to serve in these
important positions. We are at a critical inflection point
technologically in our country's history, where all of the
issues of harm that are already existent in this era of digital
technology are going to be supercharged by additional
augmentation that AI is going to make possible, but it will
just be in degree that is the harms rather than in kind.
It will give people a greater opportunity to be able to
discriminate, to be able to harm young people in our society,
and I hope that this Commission will be able to stand in the
forefront of the battle to protect young people and families in
our country. Thank you, Madam Chair.
The Chair. Thank you. Senator Schmitt.

STATEMENT OF HON. ERIC SCHMITT,
U.S. SENATOR FROM MISSOURI

Senator Schmitt. Thank you, Madam Chair. Thank you all for
being here today. One of the issues of a particular interest to
me related to big tech is the relationship between big tech and
the Federal Government and an expansive censorship regime that
has been uncovered. I happen to know in the Missouri v. Biden
lawsuit.
Quite shocking, the coordination, the collusion that took
place to censor Americans under the guise of combating
misinformation or disinformation, and I hope that as you serve
on the FTC, that you will keep that, and I know that you will,
the Constitution in mind and protecting people's right to free
speech.
The temptation for Government actors to be the decider on
these things is a powerful drug and I think needs to be
combated with restraint, and I hope that you will keep that in
mind. The second issue that's very important to me in your role
is, I am a dad of three kids, two teenage daughters, so it is--
you know, these issues related to social media are personal, as
they are, I know, to you all too.
And we have legislation--we are still trying to grapple
with this in the Committee and on the floor, what that looks
like. But the FTC plays a very important role in this. And I
know that is sort of front and center.
It has been the subject of a few questions already. So, as
you approach those, I know that you will weigh all of the
various considerations and the authority that you have. Ms.
Holyoak, it is good to see you again. In your testimony, you
mentioned the importance of protecting our kids online. Could
you just touch on, as a Commissioner, how you view that role in
protecting kids?
Ms. Holyoak. Absolutely. As some of the Senators mentioned
before, there are the COPPA statutes, and likely coming COPPA
legislation, which I would, if confirmed and if enacted, would
vigorously enforce. In addition, there is the COPPA rule, and
that just recently has--has been under review at the FTC. And I
do like what the Commissioners have said about that, some of
the statements, particularly. I know that Commissioner Bedoya
talked about the importance with respect to privacy and
education technology. So, when kids are all online doing their
homework, and they should not have to give up all their data
and all their privacy just to do their homework. So, I think
that is a very, very important issue. But I will continue to
work with the FTC, and I would--happy to work with all of the
Committee members in future legislation relating to children's
privacy.
Senator Schmitt. Yes. And I guess changing gears a little
bit. Of course, there was, I guess it is 2 years ago now, or a
year and a half ago now, the West Virginia v. EPA case. Could
you just talk about how that changes how you look at FTC
action, and if you agree, that certainly narrows the scope of
what can be done and what is considered, you know, sort of
narrowing Chevron?
Ms. Holyoak. Oh, certainly. Happy to. In the West Virginia
v. EPA case, this is the case that involved major questions
doctrine. This is a statutory tool of interpretation. So, what
the court does is they look at the statute and trying to
decide--well, they first identify, is there some sort of impact
that has vast economic and significant impact from whatever
this agency action is.
And then we are looking at the tool, the statutory tool, an
authorization that is the basis of the action, and whether
Congress clearly gave the agency that authority to act. So that
is something at the forefront of our minds now, entering into,
if I am confirmed, as an agency, understanding the
authorization, the authorities that Congress gave us, and
making sure we stay in those bounds.
Senator Schmitt. Mr. Ferguson, I don't have a lot of time,
but in my previous role, we are also involved in some of these
litigation against some of the big tech giants and their
monopolistic behaviors.
But I do, with the remaining time, I do want to ask your
opinion, you know, with the ongoing litigation related to the
Government's coordination with big tech. Could you talk about
how important the right of free speech is and what role does
the FTC have in protecting the freedom of expression?
Mr. Ferguson. Yes, Senator Schmitt. Obviously, the right to
free speech is the foremost among the rights in the Bill of
Rights, and I think it is that way for a reason.
And I also think that, you know, your litigation or the
litigation you launched while you were Attorney General reveals
the importance of policing monopolies. It is a lot easier for
the Government to control the conduct of the individual citizen
if it only has to coerce a couple market participants and they
can control people downstream.
And I think that is why the aggregation of private power is
potentially so dangerous, because if the Government can
coordinate with only a few actors, it is a lot easier to
control the rest of us.
And I think that the litigation that your state launched
revealed how this can potentially work in real time. I think
that is part of why the FTC's mission to protect the economy
from monopolies is important, both for the functioning of the
economy, but also for the preservation of individual liberty.
Senator Schmitt. Thank you all. And I will just close with
saying, your kids not only look adorable, they are so well-
behaved. I am very jealous of what we have seen here over the
first hour and a half. So, thank you. Thank you very much.
The Chair. Senator Peters.

STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN

Senator Peters. Thank you, Madam Chair. And each of the
nominees, congratulations on your nomination and your
willingness to serve in these very important positions.
My first question is going to be to all three of our FTC
nominees, and look forward, not just say yes or no answer, you
can expand on the answer as well for the question that I am
asking.
You know, every day, thousands of data brokers, they
collect, they compile, and then sell consumers' personal
information to third parties, and they do so with virtually no
oversight from the Federal Government.
Data brokers do this with many different types of personal
information, ranging from addresses and phone numbers, to
income and political preferences, to health information, and
even real time location data. And once it is gathered, brokers
link it to specific users and then sell these data profiles
commercially.
My bill, the Data Broker List Act, would require data
brokers to register with the Federal Trade Commission and then
provide information about the ways that they both use and share
that very personal information about people. The bill would
also require that these brokers implement safeguards to prevent
security breaches from occurring, which can be devastating to
individuals.
So, my questions for all three of you is, in your view, how
would American consumers benefit from increased data broker
transparency and a requirement that data brokers implement a
comprehensive security program as well? Ms. Slaughter, we will
start with you, and then Mr. Ferguson and Ms. Holyoak.
Ms. Slaughter. Thank you so much, Senator. I think you have
highlighted a really important issue. We think a lot about have
people consented or not consented to the sharing of their data,
but usually that consent, to the extent that it is even valid
consent, happens in the first party interaction.
Data brokers take that data, and it goes into this whole
opaque ecosystem where people don't really know what is
happening to it and couldn't consent or withdraw consent even
if they wanted to, and the lack of transparency is just part of
the problem there. One of the really important cases that the
FTC is in the middle of litigating right now is against a data
broker called Code Java.
And in that case, the agency--in its complaint, the agency
talks about some of the ways this use of data can be incredibly
damaging. So, I really appreciate the attention to this issue,
and I think it is critically important.
Senator Peters. Thank you. Mr. Ferguson.
Mr. Ferguson. I agree with Commissioner Slaughter. The
collection, aggregation, and sale of private data basically
happens in the background of like ordinary online transactions.
And the consumer has almost no idea that it is happening. And
even regulators here often don't know what is happening once
the data is collected, aggregated, where it goes, who does what
with it.
My first boss in the Senate, Senator Grassley, is very fond
of the saying that ``sunshine is the best disinfectant.'' I
think that transparency at the very least can go a long way to
informing consumers about what is happening in the background
every time they are engaging in online transactions.
Senator Peters. Right. Thank you. Ms. Holyoak.
Ms. Holyoak. Thank you. And I agree with Commissioner
Slaughter and Mr. Ferguson on these issues. And I think the
case that Commissioner Slaughter was talking about highlights
some of these issues, particularly this precise geolocation
information that would, if most consumers knew was being
collected, would not be happy about it.
I know a lot of states have reacted to this. Utah has the
statutes not in effect yet, but it does talk about sensitive
data, and it would include those--that kind of information, so
that it is very important to provide protections, and I look
forward to working with you, if confirmed.
Senator Peters. All right. Well, I appreciate the support
for this concept from all three of you and will work with you,
if confirmed, to make sure it becomes a reality. Transparency
is absolutely critical, and consumers have no idea how much
information is really out there. And if they did, I think they
would be very frightened about that.
My next question is for Mr. Dziak. As a Michigander, it has
been a long priority of mine to do all I can in Congress to
address PFAS contamination. We know that PFAS exposure can lead
to serious health effects, including cancer, low infant birth
rate, liver and kidney issues, and reproductive and
developmental problems, among many others.
In 2021, I worked to help to establish the PFAS Inter-
Agency Working Group to improve the coordination between
Federal agencies to address this contamination. In this
Congress, I have introduced bipartisan legislation, the
Protecting Consumers from PFAS Act, to add the Consumer Product
Safety Commission to the list of Federal agencies required to
participate on the PFAS Interagency Working Group.
Because the CPSC is a Federal agency tasked with protecting
the public against any injury or harm associated with consumer
products such as water resistant clothing, nonstick cookware,
and other products that may contain PFAS chemicals, it only
make sense in my mind that the Commission would have a
permanent seat on this working group.
And my question for you, sir, is, as we seek to bolster the
Federal Government's response to this contamination, can you
speak to the importance of having--the CPSC having a seat on
the PFAS Interagency Working Group?
Mr. Dziak. Yes. Senator Peters, I am aware of your record
on this issue as well, as the record of others and the concerns
about PFAS of members of the Commerce Committee. I know that
you and others have been a leader on the issue.
I appreciate the work that you and Senator Lummis, Senator
Welch, and Senator Collins have done on the PFAS legislation
that you cited. As a former Senate staffer, I don't want to
endorse a particular piece of legislation.
That is the purview of the legislative branch. But as you
know, the NDAA, Fiscal Year 2021 NDAA created an all of
Government approach with 19 enumerated entities. Currently, the
CPSC is a participant in the PFAS Interagency Working Group.
It currently includes agencies such as EPA, Department of
Defense, Department of Transportation, among those 19. Sharing
important information begins with--across Government begins
with a seat at the table, and that is especially something that
is important for a smaller agency like the Consumer Product
Safety Commission.
This approach will ensure more efficiency and more across
Government reduction in the duplication of efforts. If
confirmed, I am committed to continuing to work with this
Commission--this committee, sorry, and you, as well as other
members of the Commerce committee on the PFAS issue and on the
specific issue of our seat at the Interagency Working Group.
Senator Peters. Thank you. Thank you, Madam Chair.
The Chair. I know we have several more members to ask
questions. I am going to recognize Senator Vance and give
Senator Capito a distinguished member award just for being here
at the whole hearing.
Right after gavel, though. Some members got in ahead of
you. But thank you for your patience this morning. Then I am
going to ask Senator Welch to take over the hearing after that.
So, Senator Vance.

STATEMENT OF HON. J. D. VANCE,
U.S. SENATOR FROM OHIO

Senator Vance. Great. Thanks. Thanks, Madam Chair. And I
will try to be brief here, because I do have to run after my 5
minutes are up, but I want to direct the first question to
Commissioner Slaughter.
And, you know, one criticism of the FTC during Lina Khan's
tenure, a criticism, to be frank, I don't--I often disagree
with, is that whatever the need for aggressive antitrust
enforcement, conservatives should not trust the FTC to enforce
antitrust laws without incorporating partisan views about race,
gender, and sexual orientation.
In other words, there is a fear that antitrust enforcement
often overlaps too much with progressive political ideology.
You are somewhat vulnerable to that criticism, having said in
the past that antitrust should be used to combat systemic
racism.
So, I just want to give you a sense to sort of explain your
own views. Let me just ask directly, do you think the FTC
should be thinking about race, sexual orientation, gender
identity when deciding whether to bring an antitrust case?
Ms. Slaughter. Thank you, Senator. I enjoyed the
opportunity to get to chat with you a little bit yesterday, and
I am happy to answer the question today. I think it is really
important that all Americans deserve the equal protection of
the laws that the FTC enforces. We can't change what those laws
are.
That is for you to do. We are--have to be squarely within
the bounds of the FTC Act and related statutes. But within
those boundaries, we have to make important decisions about
which cases to bring and what to prioritize.
On the consumer protection side of our house, for many,
many years we have had something called the Every Community
Initiative, through which we ensure that every community in
America gets the protection of the laws that we enforce, and
that means people of color, but it also means rural Americans,
senior citizens, members of the military, where experience
teaches us that if we don't go out proactively to look for
those cases, we might unintentionally just bring cases that
help the same group of already privileged Americans that don't
need our help the most.
And so, what I have been trying to articulate is a view
that we should apply that same principle, that all Americans
deserve the equal protection of the laws that we enforce on the
competition side of our house.
And one of the ways that that matters is, for example, if
we just made decisions about which merger to investigate, say,
which hospital merger to investigate based on where we thought
there was likely to be the highest dollar harm or the highest
dollar value of the merger, we would probably focus our
hospital merger enforcement program on high dollar urban
centers where high cost care is being delivered, and that would
leave out rural areas where hospital closures can have a
cascading effect throughout the community.
So, I think being--having transparency into who our work is
affecting and how is an important thing for us to do.
Senator Vance. Sure. Appreciate the answer there. And just
one last question, also to Commissioner Slaughter. So, I wonder
about the intersection and how you think about the intersection
between viewpoint discrimination and the antitrust enforcement.
In particular, one thing that we have heard a fair amount
from some of our friends who work in, you know, to be direct,
conservative media is that you sometimes have what look like
coordinated advertiser boycotts that seem to be directed
specifically at particular organs of the media.
And I wonder, when you think about sort of, you know,
competition and harms to competition, do you think about
viewpoint discrimination as the sort of thing that proper
competition policy can address?
Ms. Slaughter. I will be honest, that is a really
interesting question to which I would like to give a little bit
more thought before giving you a thorough answer. I think a
couple of flags that jump out to me is when you are talking
about viewpoint and expression, you are talking about important
issues of speech where the Government needs to tread very, very
carefully, as Mr. Ferguson articulated.
And then I also think about how can we--is there an
articulable violation of the laws that we enforce, and that has
to be the first thing that we start with and think about. But
beyond that, I haven't given enough thought to your particular
question to answer it more thoroughly.
Senator Vance. OK. We will follow up then, because I would
love to get a response after you have had more time to think
about it. Appreciate all of you being here. Appreciate all of
you being willing to serve. And I yield the remainder of my
time. Thanks.

STATEMENT OF HON. PETER WELCH,
U.S. SENATOR FROM VERMONT

Senator Welch. Thank you, Senator. And I have a few
questions. And first of all, thank you all. And Mr. Ferguson,
Ms. Holyoak, I enjoyed our conversation. And the Commissioner
Slaughter, great job you have been doing. We really appreciate
it. And Mr. Dziak, congratulations.
This is incredibly important work. I do want to emphasize
what my colleague, Senator Fischer, said. We have had just a
lot of deadlock on some of our very important Commissions. It
is incredibly important to try to work together to get to an
outcome that is beneficial for the American people.
So, I just urge all of you to do your best to make that FTC
really functional. One of the areas I have always had concern
is about health care and how expensive it is, and I think the
biggest threat to access in health care is the expense of
health care. It is just beyond the ability of individuals to
pay, for employers where the premiums keep going up, and for
Government, for taxpayers.
And one of the recent developments is that private equity
is buying up practices, or small hospitals, or nurse staffing
agencies where once they get a hold of it, in our small
hospitals, any hospitals really, have to get traveling nurses.
This is just an example. The price explodes and it really
threatens our small community hospitals in particular.
It is--I want to ask each of the FTC nominees your thoughts
on whether that is an area of inquiry for your Commission. I
will start with you, Ms. Holyoak. The efforts by private equity
essentially to buy up medical practices, and what we have seen
is that that generally results in higher utilization, and
higher cost, and oftentimes fewer practitioners.
Ms. Holyoak. And thank you, Senator. And I really
appreciate the question, and I appreciate our conversation we
had the other day. I really enjoyed it. I think this is an
extremely interesting question.
As I had mentioned to you, my husband is a doctor and has
been employed in various capacities, and health care--the
health care industry is a very interesting intersection of
those issues. I think the FTC has a very strong history of both
competition and consumer protection enforcement actions in
health care.
And I agree with you, Americans are very concerned about
costs and having access to affordable health care. Again, this
is another issue that I would love to understand, if confirmed,
the FTC's experts on this issue. I want to know if they have
looked at this, if they have seen this type of interaction that
you were describing and----
Senator Welch. Mr. Ferguson--I don't want to have--I don't
mean to interrupt, but I just want to----
Mr. Ferguson. I agree with you on the condition of the
market. Health care, the price of health care has exploded
since 2010. It has gone like seven times the rate of inflation
or something outrageous like that.
Over the last 20 years, much of the FTC's most successful
work has been in this area. Lots of successful cases preventing
hospital mergers in local markets that would have created
monopolies. I think this is like a core part of the FTC's work.
It is one of the most important things that the FCC does,
and if I were confirmed, this would be one of my top priorities
is doing whatever we can to promote competition and arrest the
rising cost of health care.
Senator Welch. Thank you. Ms. Slaughter.
Ms. Slaughter. Thank you so much, Senator. I agree with my
fellow nominees that this is a critically important issue.
And I think it is really important, to be clear, that I
don't believe our antitrust laws permit companies to achieve
scale through a roll up strategy of serial acquisitions that
they would not be permitted to achieve through a single
acquisition.
So, making sure that we are paying attention not just to
each acquisition myopically, but to the broader strategy is
what I believe the Clayton Act instructs us to do.
Senator Welch. Thank you. And I have got a question for Mr.
Dziak. The level of penalties at the CPSC are low, according to
Mary Boyle, actually. Do you think that the fines that can be
imposed meet the purpose of trying to deter bad conduct, or do
these need to be raised?
Mr. Dziak. Senator, the statutory level of the fines was
set by Congress in a most recently updated, I believe it was in
2008 CBSIA. So, in terms of what that level is, I would
certainly defer to Congress on if that is appropriate.
Obviously, the higher----
Senator Welch. You don't have an opinion?
Mr. Dziak. I don't. Again, as a former Senate staffer, I
would defer to Congress. That is a legislative judgment. But
what I would say is the level of--the higher the level of the
fine----
Senator Welch. I am asking you for a recommendation.
Mr. Dziak. The--and again, I am not trying to----
Senator Welch. OK. So, you don't have an opinion. Thank
you. And I recognize Senator Capito.

STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM WEST VIRGINIA

Senator Capito. Thank you very much. Thank all of you for
being here. You have wonderful families, and thanks for their
recognition and patience.
I am very pleased to be here. In 2018, I had the honor of
introducing former Commissioner Christine Wilson, she is a
resident of West Virginia, for her nomination. And both she and
former Commissioner Noah Phillips resigned their positions
before their 7 year terms were up.
In it, she wrote a very well-publicized letter that she
felt that the leadership had disregard for the rule of law and
due process and brought some questions about bipartisanship.
And you have heard a lot of questions about this, and you all
addressed this in your opening statements.
Mr. Ferguson said, ``consumer protection and competition
are not partisan issues.'' So, for each one of you, just
quickly, because I do have another question I want to get to--
it is important to me. How are we going to get back to that and
not keep generating very partisan, 3-2 positions coming out of
the Commission? And, Ms. Holyoak, I will start with you--
Holyoak.
Ms. Holyoak. Thank you. Like Mr. Ferguson, I have worked on
some antitrust and consumer protection actions within the State
of Utah as Solicitor General, and I have found that those are
the most--those actions, those investigations, and matters are
the most bipartisan.
It is where--these are issues that affect Americans'
everyday lives, and everyone cares about them, and we want to
work together on this. I have met, just previously I have had
the opportunity to meet with Commissioner Slaughter, with
Commissioner Bedoya, and Chair Khan, and I do believe that we
will work together--well together.
I don't think we will agree on everything, but I think we
will find consensus on many, many issues.
Senator Capito. Mr. Ferguson.
Mr. Ferguson. Thank you, Senator Capito. We are going to
have disagreements, of course. This is how--Congress has
disagreements. The Supreme Court has disagreements. That is OK.
Disagreeing often sharpens and improves outcomes. Justice
Scalia and Justice Ginsburg used to say about each other all
the time that their dissents made their majorities better. I
think that is good. But I think it is important for a
bipartisan agency like the FTC, that the process is free of
gamesmanship and that there is transparency in the process.
And I can only speak for myself, but if I were confirmed, I
would do everything I could, even in cases where I disagree,
for all of us to work together on the process and improve the
outcome, whatever that outcome ends up being.
Senator Capito. Ms. Slaughter.
Ms. Slaughter. Yes, I agree with both Solicitor General
Holyoak and Ferguson, and the only thing I can add to what I
think they articulated very well is that I also think personal
relationships matter and making the effort to get to know your
colleagues, find common ground with them personally, as well as
professionally, is worthwhile.
I was really privileged to get to know Commissioner Wilson
during her time here and at the FTC, and I learned a lot from
her and really continue to value that relationship. So that is
something I really try to invest myself in.
Senator Capito. Thank you. Ms. Slaughter, I am going to
address this question to you since you have been on the
Commission and you kind of went into the ballpark when you said
personal relationships. What is the FTC's policy on workers
being in the office, physically?
Ms. Slaughter. I believe our current policy requires
workers to have 2 days, at least 2 days, in-person per pay
period.
Senator Capito. So that is two days, every two weeks.
Ms. Slaughter. Every two weeks.
Senator Capito. Do you all set that policy at the
Commission or is that set--do you have to OK that policy?
Ms. Slaughter. The Commission itself doesn't vote on the
policy. Those policies are set by the Chair's Office in
coordination with central Federal Government, OPM rules and
regulations.
Senator Capito. OK. So, we have a Commission here who
according to Senator Cruz's letter of June 19, 2023, he cites a
study that says that in 2020, 87 percent of FTC employees
believe the agency's leaders maintained high standards of
honesty and integrity. Now it is just 44 percent. So, or 44
percent have said that they have a high level respect for
senior leaders. That is an erosion of a pretty substantial
half. It is half of the employees. In my view--this is
Government wide, but we are talking FTC right here. You talk
about the importance of personal relationships. You talk about
mentoring and all the way, and the value of the decisions that
are rendered by the staff--yet, you have a Commission that only
has people coming in 2 days out of every 2 weeks. I understand
Zoom and all that. We have all done all that. But that does not
replace the inner workings of really developing these good
relationships. Do you have any comments on that?
Ms. Slaughter. Yes, I think you are pointing to a really
important tension that not only the FTC but the rest of the
Federal Government, and frankly, all of the workplace is
grappling with, which is the tension between people's desire
for flexibility, not spending hours commuting, and more ability
to get their work done, with the benefit of in-person
engagement.
And I know that this is something the private sector is
grappling with, too. I will tell you, I take the results of the
FEVS survey extremely seriously, and I have really worked hard
to talk to staff and get a sense from them of what do they
think is working, not working, where do they see the need for
improvement? And I will be really honest that I have not heard
from any of our staff a desire to be required to go into the
office more. Many of them----
Senator Capito. That is pretty--I mean, I could get that
one.
Ms. Slaughter. Sure. But I think what is--100 percent, and
that is the tension that I talked about a little bit, but I
think it is important for us to be--to listen, to not make
assumptions about what is driving staff views, and to listen to
them, and understand them.
And then I think we need to continue to apply corrective
action and in an iterative way to see what is working. But I am
really eager for not just us, but the entirety of the workforce
to figure out a better way to maintain a sense of community,
while also maintaining flexibility. And I will just add that
this is something I grapple with every day.
I come to the office more frequently than every two weeks,
but I will admit that every morning when I am trying to get up
and leave my house, it is hard for me to do that. I am juggling
my children, and I am dealing with other things. And then once
I get to the office, I am really glad to be there with my
colleagues.
So, I experience it personally and I think about it from a
management perspective, as well as a person.
Senator Capito. Yes. These issues are so huge, and the
morale of a workplace really has great impacts on not just what
kind of decisions you can come to, but how you can get to the
transparency and bipartisanship that you all express a great--a
desire for.
And so, I agree everybody is grappling with this, but you
see news every single day where the private sector is saying,
you got to come to work. Thank you. Do you want me to keep
talking?
[Laughter.]
Senator Hickenlooper. I was lost in juggling the gavel.
Senator Capito--oh, you are done. Sullivan. Senator Sullivan.

STATEMENT OF HON. DAN SULLIVAN,
U.S. SENATOR FROM ALASKA

Senator Sullivan. Thank you, Mr. Chairman. And to the
nominees, congratulations. I want to follow up on Senator
Blackburn's really good discussion, and I am trying to have a
bunch of questions. Hopefully, you can keep your answers
relatively short. Where does the FTC derive its power? Why
don't we start with you very quickly there.
Ms. Slaughter. From the----
Senator Sullivan. Ms. Slaughter.
Ms. Slaughter. From the statutes that Congress has passed.
Senator Sullivan. Mr. Ferguson.
Mr. Ferguson. In the first instance, from the Federal Trade
Commission Act.
Senator Sullivan. OK.
Ms. Holyoak. I agree with those answers.
Senator Sullivan. And then Mr. Dziak. I am not talking just
FTC, but you as well.
Mr. Dziak. We derive it from the Consumer Product Safety
Act.
Senator Sullivan. So, we could get rid of you tomorrow if
we voted on it, right? We could limit the number of
Commissioners. All your power derives from the statutory
authority we grant you, correct?
Ms. Slaughter. Yes.
Mr. Ferguson. Yes.
Ms. Holyoak. Yes.
Senator Sullivan. OK. I just want to make that clear. I
think we are in an age of remarkable independent agency
overreach. Let me give you one example. Actually, let me give
you two examples. I had meetings like this with the FCC
Chairman before he became the FCC Chairman.
I said, look, I know you are going to be tempted to make
your Commission all about climate change, but you don't have
any authority, statutory, you don't have any expertise. So, Mr.
Nominee, will you commit me to make sure you don't make the FCC
all about climate change? No, Senator, I don't plan on doing
anything like that.
The FCC Chairman told me that. He lied to me. And I hope he
is watching, and he is probably not. So, this is the kind of
thing that just aggravates us because he doesn't have that
authority. I did it with the chairman of the Fed. Same thing,
right, a Republican. You don't have the statutory authority,
you don't have the expertise to make the Fed all about climate
change, but he did. OK.
So, there is this remarkable period in which independent
agencies come to us, oh, we are going to stay with our
statutory authority, and then you get confirmed, and holy cow,
it is nuts. So, when Republican Commissioner Christine Wilson
decided to resign as the FTC Commissioner back in February, she
cited the agency, ``disregard of Congressionally imposed limits
on agency jurisdiction, defiance of legal precedent, and abuse
of power.''
So, can I get your commitment not only to stay within the
bounds of statutory authority, but you guys are all smart
lawyers, and as you know, in legal opinions, most good judges
always start with a big paragraph on here is how I derived
jurisdiction. Here is how the court derived jurisdiction. They
go into detail.
So, can I get your commitment on every opinion that you
issue to begin the opinion with a detailed discussion of your
statutory authority? Not hey, we get this through FTC, organic
statute x. I am talking about down to the details. Can I get
your commitment, each one of you? I will start with you, Ms.
Slaughter. Every opinion, give it to us. How do you derive the
authority on what you are about to do in detail? Can I get your
opinion--commitment to do that?
Ms. Slaughter. Yes. So, Senator, I fully agree with you
that the only authority we have and can exercise is that which
Congress has given us.
The FTC's authority, for the record, is relatively broad in
its statutory terms. It doesn't, for example, include the word
health care, but we have talked about the important health care
work that the agency has done. I am reluctant to make a
commitment on how to craft opinions because----
Senator Sullivan. You don't want to----
Ms. Slaughter.--sometimes other colleagues are the primary
drafters of them. But I will promise you that I am extremely
committed to ensuring that there is clear statutory authority
for everything that we do.
Senator Sullivan. Commissioner--Mr. Ferguson.
Mr. Ferguson. If you will indulge me to say, I won't
necessarily put it in the opening paragraph in any opinion that
I write.
Senator Sullivan. OK.
Mr. Ferguson. If I am in the majority, I will explain why I
think the Commission has the statutory authority to proceed.
And if I am in dissent, I will explain why I think they don't
have the statutory authority to proceed.
Senator Sullivan. Good. Ms. Holyoak.
Ms. Holyoak. Same--same answer.
Senator Sullivan. OK. Mr. Dziak. I don't want to leave you
out there. You are feeling a little lonely. I came with a lot
of questions----
Mr. Dziak. I agree with my colleagues.
Senator Sullivan. Same question, though, for you, right?
Mr. Dziak. I agree with Mr. Ferguson----
Senator Sullivan. We you could get rid of you tomorrow, if
we wanted to, couldn't we?
Mr. Dziak. That would be the right of Congress.
Senator Sullivan. Yes, sure. OK. I have a quick, very
specific Alaska question. In the Kroger Albertson's grocery
store merger was announced in October. I know you can't
prejudge FTC reviews, but it is currently undergoing review.
The two companies together own 35 grocery stores across Alaska.
That is a sizable footprint for us. The news of the merger
and recent divestment plan have raised concerns among Alaskans
that it could result in store closures and high food prices.
Everybody is dealing with high food prices.
Our supply chain is especially vulnerable. Little
redundancies, Alaska imports 95 percent of its food, almost
entirely through the port of Alaska. So, as you can understand,
Alaskans would be cautious of anything that would drive up
prices and exacerbate these issues.
If confirmed, will each of you ensure that the FTC review
takes into account the concerns that I just mentioned with
regard to Alaska and our unique challenges as relates to that
merger? Can I--not prejudge. Ms. Slaughter.
Ms. Slaughter. Yes. I get--even beyond prejudging, I can't
comment on any particular potential nonpublic investigation,
but I will tell you that I think the issues you raised are
extremely important. People's access to food matters more than
almost anything else, so I take it very seriously.
Senator Sullivan. Mr. Ferguson.
Mr. Ferguson. I also commit to take your concerns very
seriously.
Senator Sullivan. Ms. Holyoak.
Ms. Holyoak. Me as well, yes.
Senator Sullivan. OK, great. And then my final question,
Mr. Chairman. It is not just agency overreach. The FTC, in my
view, under the current Chairman, has kind of made a name for
herself, but not in a good way. It is on overreach, but it is
also really importantly, and something this committee takes
very seriously, Democrats, Republicans, on ethics.
And there was this big discussion of her recusal in a
certain case. Later, months later, after she decided not to
recuse herself in the Meta case, a memo from the FTC's
designated agency ethics official was made public, and it
revealed that the FTC ethics official had recommended that the
Chairman remove herself from the case.
So, you got the ethics lawyers saying, Mr. Chairman, Madam
Chairman, you shouldn't be part of this. She ignored it. Tried
to bury it. Ms. Slaughter, I think you supported the Chairman
on this.
Can you explain why? I mean, the Chairman looks like just
blew off the ethics official and said, I don't care, I am going
to do this, and then you supported it.
Why did you support that? I mean, we need to have an agency
that is above reproach in terms of ethics, and the Khan FTC is
not only looking like an overreach factory, but a very
ethically challenged group of Commissioners, and it is really
troubling to me.
Ms. Slaughter. Thank you, Senator. I will point out that I
explained in detail my position in that 30 page opinion with
Commissioner Bedoya. And I know you don't have the time for
that here, so I will give you the short version.
Senator Sullivan. Oh, you did, against the ethics
official's memo that was buried for months during this
controversy.
Ms. Slaughter. So, as I said earlier to Senator Cruz, I
think it is important that we not put staff in the middle of
Commissioner debates. And also--I did say that the Chair should
not have to----
Senator Sullivan. Wait a minute. We do that all the time in
the Senate. I go to Senate ethics on issues all the time. All
the time. I use them all the time. Any issue, my staff, hey, we
are not sure on the ethical issues.
I go to Senate ethics and say, hey, give me an opinion. And
when they give me opinion, I abide by it. So that is not
putting staff in between, that is getting an ethics opinion
which you got, buried, and then you didn't abide by--like, that
is unethical actions, isn't it?
Ms. Slaughter. So, I appreciate it--I appreciate the
importance of the views of our ethics official.
Senator Sullivan. But you ignore them?
Ms. Slaughter. Well, let me be very clear. There are some
parts of the statute and the Commission's rule that say that
the views of the ethics official are dispositive. If our ethics
official says you cannot participate, you cannot participate.
Those are cases that mostly involve financial conflicts of
interest. The question here in this case was not one involving
a financial conflict of interest. It was one alleging that the
Chair had prejudged the matter at issue. In most cases----
Senator Sullivan. Well, she had, right, because she had
publicly called for a ban on future acquisitions.
Senator Hickenlooper. Senator, I think we are--you are over
time.
Senator Sullivan. No, I am not, Mr. Chairman. I mean, who
is next? It is an important issue. It is ethics at the FTC. Can
I ask unanimous consent to be able to finish my questioning? It
is a really important line of questioning. I don't think there
is anyone after me, is there?
Ms. Slaughter. I am happy to continue to explain this
because I think it is an important issue to talk about. So,
there is a distinction between financial conflicts of interest
and the question of prejudgment. And on those questions, the
rules and the statute do not say that the views of the ethics
official are dispositive.
So, telling you how I approach these cases. I take the
views of our staff extremely seriously. I take them on all the
matters, and I take their advice, and then I go back to the
text of the statute, I go back to the related rules, and I go
back to any related jurisprudence to try to form my own
opinion.
I think it is not consistent with my oath of office to
rubber stamp the opinion of any staff in the agency, unless the
rules tell me that I have to treat that opinion as dispositive.
I think it is my job to formulate my own judgment, and that is
what I did in this case, where it was clear to me, based on the
precedent, and the statute, and the Commission rules, that the
chair, who was appointed largely because of her expertise and
views on tech policy issues----
Senator Sullivan. Yes, no that is----
Ms. Slaughter.--concentration----
Senator Sullivan. That is a stretch, right? Just that is a
stretch. A lot of us didn't even vote for her. Look, bottom
line is, I need a commitment from all of you to uphold the
highest standards of ethics under the law. When you are giving
advice on that, can I get a commitment from each one of you--
all four of you, please?
Ms. Holyoak. Absolutely.
Mr. Ferguson. Unequivocally, yes.
Ms. Slaughter. Yes.
Senator Sullivan. OK. Thank you. Thank you, Mr. Chairman.
Senator Hickenlooper. Great. Thank you all. I have one more
question that I will slip in since I am in this seat, and I ask
all three of you, you don't have to go on a great length, but
obviously and I think this has been well reported,
entrepreneurs are less likely to start a business if they think
a market incumbent is too powerful to compete against.
And I think we talked about, actually at various times, we
have all talked about how important small businesses are, how
essential they are to spurring innovation, creating--expanding
economy and expanding businesses. So how should the FTC think
about promoting competition and support innovation in the
technology sector?
Ms. Slaughter. Thank you, Senator. I think this is a really
important issue, and I think that this is actually one of the
reasons there is so much bipartisan consensus on competition
issues. I think everybody wants to see a market where the
person with the best idea can start a new business, and build a
better mousetrap, and enter and thrive.
And incumbents with too much market power can protect
themselves from competition, and that is really problematic for
the growth of small businesses. So, our attention needs to be
not just on the ability--on effects of mergers or anti-
competitive conduct on prices, but on their effects on
innovation and entry, and the opportunity to achieve that
American dream of starting a business, and entering the market,
and building yourself to success.
Mr. Ferguson. I agree, and I enjoyed our talk on this
specifically, Senator Hickenlooper, the other day. You know, I
think that the biggest obstacle to the success of the free
enterprise system are barriers to entry, and I think that there
are two big ones that every potential entrepreneur confronts.
The first are incumbents who might have monopoly power, and
the other is regulation. And I think that the anti-monopoly
impulse is the same as the deregulatory impulse, because both
of those things can be huge obstacles to taking a good idea in
its incipiency and transforming into something that improves
everybody's life.
And so, you know, I think that that is the balance, is we
need to protect markets from monopolies, but not give in to a
hyper regulatory impulse.
Ms. Holyoak. I agree with everything that they just said,
and I would just add that I think we can get there with robust
law enforcement in these--against anti-competitive conduct and
enforcing the statutes that we have.
Senator Hickenlooper. Mr. Dziak, do you have a comment?
Mr. Dziak. I do not. That is outside of the jurisdiction of
the CPSC.
Senator Hickenlooper. It sure is. But I didn't want to deny
you that opportunity. Thank you. I really appreciate that, and
I think it is an opportunity for bipartisanship, as you all
three just displayed. Senator Cruz, second round of questions?
Senator Cruz. Thank you, Mr. Chair. Commissioner Slaughter,
I want to go back to the questions that Senator Capito asked.
I think there is a disturbing pattern in the Biden
Administration of Federal employees not showing up for work.
And after the pandemic, the Biden Administration has decided
that Federal work doesn't actually entail going to the office,
and it is--the absenteeism is a massive problem throughout the
Biden Administration.
My staff inquired of the FTC what the data are, and I will
tell you what your staff told us. As of June 30th, 103 staff,
approximately 8 percent of the FTC employees, are working
remotely. Now, that on its face doesn't sound horrific, 8
percent of the staff is teleworking, not going into the office
at all.
They then continue to say the remaining 92 percent of the
workforce are reporting to the office on a regular recurring
basis. Well, regular recurring basis sounds good, until they
specify, and this is based on the badging--so the badges when
you are coming in and out of the office, there are records.
According to the FTC, of the ``regularly recurring working
staff,'' 60 percent of them are showing up to work 1 day a
week. Another 20 percent are showing up to work 2 days a week.
And another 20 percent are showing up to work three to 5 days a
week. Notice three to five doesn't specify.
So, we don't know how many are showing up five days a week.
I am got to tell you, when I was at the FTC in 2001, in 2002,
and 2003, to the best of my knowledge, every single employee
showed up at the office five days a week unless they were sick
or on vacation, because it was a job. It was a job for the
American people, paid for by the taxpayers.
You mentioned the private sector. I don't know a single
private sector employee--employer that sits there and allows 80
plus percent of their employees not to show up for work.
Do you think it is being faithful to the American people
that under your leadership and Chair Khan's leadership,
although she has now left, that over 80 percent of the
employees are showing up to work 2 days a week or less?
Ms. Slaughter. Senator, I think it is really important to
distinguish between working from--in the office and the concept
of showing up to work. There is no one----
Senator Cruz. Do you think it is acceptable to the American
people--you know what, if you are a steelworker or if you are a
truck driver, if you are a waiter, if you are a waitress, there
are a whole ton of jobs, you don't have the chance to sit at
home, you don't have the chance to go play golf on Fridays and
Mondays when you want to and treat it like a part time job.
Do you think the American people, you honor your commitment
to the American people by having over 80 percent of the staff
not in the office at least 3 days a week, and maybe four or
more?
Ms. Slaughter. If I believe that anyone at the agency was
treating their full time job like a part time job or going off
and playing golf, I would have a huge problem with it. So, what
I know them to be doing is working----
Senator Cruz. So let me get a direct answer. Do you believe
it is OK that over 80 percent of the staff does not show up
physically in the office 3 days a week or more?
Ms. Slaughter. I believe that that is 100 percent
consistent with the guidance that we have gotten. It is
different----
Senator Cruz. Guidance from whom?
Ms. Slaughter. I believe the Office of Personnel
Management, but I want to get back to you.
Senator Cruz. Well, I believe you, because it is a problem
throughout the Biden Administration. The Biden Administration
has decided Federal employees don't need to show up to work.
And I will tell you, the rest of the country shows up to work.
So, that is distressing. Let's shift to another--look, and
I think this is endemic of an attitude, which is that this
agency is unaccountable. When you and I sat down and talked, I
asked you about multiple oversight letters I had sent to the
agency that you still had not responded on.
Do you have any of those oversight responses here today?
Ms. Slaughter. Well, Senator, as you know, I am not the
Chair of the agency. The Chair's--the letters are directed at
the Chair's office and the Chair's office is----
Senator Cruz. So, it is the Chair that is being
recalcitrant. I believe you there. Let's go back to the Chair.
We talked about how the Chair deliberately disregarded the
advice of the designated agency ethics official.
And then you and Commissioner Bedoya voted with the Chair
to forcibly redact Commissioner Wilson's dissent, letting the
public know that. Subsequently, during an April hearing before
the House Committee on Energy and Commerce, Chair Khan was
asked, were there any instances where she had, ``not followed
the designated agency ethics official's advice?''
Here is what she said. ``No, in instances where companies
like Facebook or Amazon have petitioned for my recusal, I have
consulted with the DEO and have taken actions that are
consistent with the legal statements the DEO has made.'' Was
that a truthful and candid response?
Ms. Slaughter. First of all, I think the Chair should be
able to speak for herself.
Senator Cruz. I would love to, but she hasn't testified in
over 800 days here, so you are the only Commissioner that we
have in front of us.
Ms. Slaughter. I also want to be consistent with what I
told you before about not wanting to disclose staff guidance
myself. But since you referenced that it was already in the
public, that memo that is in the public says that the rules do
not require the Chair's recusal in that case, and I think--I
understood her to be saying that.
Senator Cruz. So, you believe that was a truthful and
candid advice? She is speaking so precisely as a lawyer, she
says, I have not taken--I have consulted with the DEO and have
taken actions that are consistent with the legal statements the
DEO has made.
And legal statements, boy, those words are carrying a lot
of work. Because you are right, the DEO didn't say you are
legally required, you must recuse. The DEO said, I recommend
that you recuse because it is a serious problem.
There is a perception of bias. She ignored that
recommendation. We just read through that. And then she goes to
Congress under oath and doesn't acknowledge that she took a
recommendation from the DEO and ignored it.
She just said, well, I followed the legal statements. Do
you consider that truthful and candid testimony?
Ms. Slaughter. Senator, I really don't think it is
appropriate for me to opine on it. I will tell you that sitting
here----
Senator Cruz. Why not?
Ms. Slaughter. Because I wasn't in the Chair's head. I
don't----
Senator Cruz. But you voted to censor the evidence that
would have shown that was a lie.
Ms. Slaughter. I voted consistent with Commission rules----
Senator Cruz. Except I have shown you multiple instances
where the Commission has released that information.
Ms. Slaughter. But I wasn't part of those decisions. And my
job is to follow the Commission rules as I see them.
Senator Cruz. All right. Let me ask you, subsequently. As
you know, I, along with Chairman Colmer and Chairman Jordan,
sent a letter to the FTC investigating many of its abusive
actions. The FTC stated in response that per agency practice,
it had deleted the e-mail accounts of former employees who had
worked on a non-compete agreement rulemaking soon after they
left the agency.
Now, under Federal law, agencies are required to protect
Federal records, are required to keep them for 7 years. Under
44 U.S. Code Section 3301, the definition of records includes
all recorded information, and as NARA says, that includes
electronic messages, including e-mail, instant messages, and
text.
Why is the FTC purging its e-mails of all of the e-mails of
employees as soon as they leave? And in particular here, you
have got two employees that came from left wing advocacy groups
that went and worked at the FTC, and as soon as they leave, you
erase all of the records in direct contravention of Federal law
and acting to shield those records from investigation from
Congressional oversight?
Ms. Slaughter. Senator, since I got to the FTC, I have
worked really hard to understand what the rules around record
retention are because they are different from where I came from
in the Senate, where there are not similar rules.
And I will tell you, the rules are actually a little bit
hard to understand. The guidance I got from our General
Counsel's Office and the Secretary's Office from the beginning
is that all e-mails are not Federal records.
Certain things are Federal records that are required to be
preserved. Also, we are required to preserve anything that is
subject to a FOIA request or a litigation hold. But outside of
that, we are not required to preserve things and in fact are
directed to delete before e-mails--agency security, hygiene
purposes----
Senator Cruz. I will say, my time is expired, but I will
point out that that definition is hyper technical, because as I
understand it, the FTC operates under the fiction that when an
employee is leaving, that employee will print out and save
whichever e-mails are Federal records.
And so, the agency can then just go and delete them all.
Now, I don't know anyone who does that, and you don't know
anyone who does that. That is designed to prevent litigation
from getting access to those e-mails and prevent Congressional
oversight.
And given the pattern of unethical behavior by the Chair of
this Commission, and then the pattern of the Commissioners
being willing to cover it up, deleting e-mails in defiance of
Congressional oversight is deeply troubling, and it suggests an
agency that believes it is not accountable to the American
people.
Senator Hickenlooper. Thank you all. Thank you, Ranking
Member Cruz. Again, I appreciate your willingness to do public
service. Obviously, these are difficult times, but I think you
will bring--you, new candidates will bring a fresh body of
enthusiasm and energy to the work of the Commission, and I look
forward to seeing that--the results of your labor.
And again, thank you, all of you, for your public service.
Before we close the hearing today, I have one more question to
ask of all the nominees, and that is, if confirmed, will you
pledge to work collaboratively with this committee, provide
thorough and timely responses to our requests for information,
as we put together and address the important policy issues and
appear before--and appear before the Committee when requested?
Ms. Slaughter. Yes.
Mr. Ferguson. Yes.
Ms. Holyoak. Yes.
Mr. Dziak. Yes.
Senator Hickenlooper. Thank you for that commitment.
Senators will have until close of business Monday, September
25, to submit questions for the record to the Committee.
Witnesses will have until close of business on Monday, October
2, to respond to those questions.
Again, one last time, thank you all for your time today,
but for your public service. That concludes today's hearing.
[Whereupon, at 12:30 p.m., the hearing was adjourned.]

A P P E N D I X

National Retail Federation
September 20, 2023

Hon. Maria Cantwell,
Chair,
Committee on Commerce, Science, and Transportation,
Washington, DC.

Hon. Ted Cruz,
Ranking Member,
Committee on Commerce, Science, and Transportation,
Washington, DC.

Dear Senators Cantwell and Cruz:

On behalf of the National Retail Federation (NRF), I write to thank
you for calling today's hearing regarding nominations to the Federal
Trade Commission (FTC). As you review the nominees' qualifications, NRF
urges you to assert aggressive oversight over FTC, particularly as
several recent notable Commission actions have been outside the bounds
of the authority delegated to the Commission by Congress.
The National Retail Federation passionately advocates for the
people, brands, policies and ideas that help retail succeed. From its
headquarters in Washington, D.C., NRF empowers the industry that powers
the economy. Retail is the Nation's largest private-sector employer,
contributing $3.9 trillion to annual GDP and supporting one in four
U.S. jobs--52 million working Americans. For over a century, NRF has
been a voice for every retailer and every retail job, educating,
inspiring and communicating the powerful impact retail has on local
communities and global economies.
First, NRF opposes the Noncompete Clause Rulemaking, published in
the Federal Register on January 19, 2023, primarily because the
Commission lacks any authority to regulate, much less ban, noncompete
agreements. Without clear Congressional authorization, the FTC seeks to
regulate a significant portion of the American economy that has been
governed exclusively by state law for over 200 years. Regarding the
merits of the rule, NRF opposes attempts to ban the inclusion of
noncompete agreements in employment contracts with employees. Federal
and state laws have long recognized that noncompete agreements serve a
legitimate purpose in our economy. These agreements allow retailers to
protect trade secrets, customer relationships, and confidential
information. They are particularly necessary and appropriate when NRF
members enter into employment contracts with higher-level executives,
yet the rule makes no distinction between highly compensated executives
and other employees.
Secondly, the FTC recently solicited public comments on
``Provisions of Franchise Agreements and Franchisor Business
Practices.'' NRF is concerned that this is the beginning of an effort
by the FTC to pursue regulations that would have a detrimental impact
on the franchise business model. As the Committee is aware, the
franchise model has provided significant economic opportunity and
wellbeing to entrepreneurs across the country and the economy
generally. Unfortunately, an FTC effort to impose joint employer
liability between franchisors and franchisees would endanger such
arrangements. Should the FTC pursue such a course of action, fewer
individuals would risk opening their own small business and fewer
franchisors would being willing to offer the support and services they
currently provide to franchisees. In short, FTC seems to be taking
strides to regulate in this area, which would threaten the very
foundations of the franchise model and have devastating consequences
for the economy.
Additionally, NRF is highly concerned that a recently proposed FTC
rule would result in a massive reframing of antitrust premerger
notification in the United States. The rule seeks to impose substantial
additional burdens on merging parties that will be exceedingly costly,
in terms of both time and money. Because the existing Hart-Scott-Rodino
(HSR) Act notification process has been effective at preserving
competition, and because the burdens under the proposed rule would
disproportionately disadvantage many of NRF's members, the NRF
continues to urge the FTC to reconsider its course and avoid
substantial deviation from the current premerger notification program.
We respectfully request that this letter be made a part of the
record of the hearing and thank you for your attention to this issue.
Sincerely,
David French,
Senior Vice President Government Relations.
______

Federal Trade Commission
Washington, DC, August 31, 2022

MEMORANDUM

TO: Christine S. Wilson
Commissioner

FROM: Lorielle L. Pankey
Designated Agency Ethics Official

SUBJECT: Federal Ethics Response to Meta Petition for Chair Khan's
Recusal

This memorandum addresses Federal ethics issues raised by the
petition filed by Meta Platforms, Inc. (``Meta'') \1\ calling for Chair
Lina M. Khan's recusal from the FTC's review of Meta's proposed merger
with Within Unlimited, Inc. (``Within''). The Commission has exercised
its discretion to treat Meta's petition as properly filed and Meta's
petition is now under the Chair's consideration. For the reasons
discussed below, I recommend Chair Khan elect to recuse from
participating in Meta/Within as adjudicator to avoid an appearance of
partiality even though I do not find her participation would constitute
a per se federal ethics violation.
---------------------------------------------------------------------------
\1\ Meta was previously known as Facebook, Inc. (``Facebook'').
---------------------------------------------------------------------------
The primary arguments made by Meta are focused on prejudgement and
due process concerns. I continue to defer to the FTC's Deputy General
Counsel for Legal Counsel and my other colleagues in the Office of the
General Counsel to provide guidance on such issues.\2\ From a Federal
ethics perspective, I have strong reservations with Chair Khan
participating as an adjudicator in this proceeding where--fairly
recently, before joining the Commission--she repeatedly called for the
FTC to block any future acquisition by Facebook. In my view, such
statements would raise a question in the mind of a reasonable person
about Chair Khan's impartiality as an adjudicator in the Commission's
Meta/Within merger review. Accordingly, I recommend Chair Khan recuse
to avoid an appearance of partiality concern pursuant to 5 C.F.R.
Sec. 2635.502.
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\2\ Legal ethics, administrative law, and related concerns are
beyond the purview and expertise of the FTC's Designated Agency Ethics
Official. However, it is worth noting that the Commission previously
indicated the Federal judicial recusal standard, 28 U.S.C. Sec. 455, is
the relevant standard to apply in a Part 3 proceeding when addressing
the appearance of bias on due process grounds. See Intel Corp., Docket
No. 9341, Opinion and Order of the Commission Denying Motion for
Disqualification (Public Version), at p. 5 (Dec. 18, 2009).
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My recommendation notwithstanding, a decision by Chair Khan to
participate in this matter as adjudicator is not a per se federal
ethics violation. Given the nature of the appearance concern at issue,
Chair Khan may exercise her discretion to conclude there is no
reasonable basis to question her impartiality in this matter. Should
Chair Khan decide to participate, Meta's petition must be reviewed by
the Commission. Whether the Chair should participate as an adjudicator
in this proceeding may later be reviewed by a Federal court.
Ultimately, regardless of what conclusions are made and by whom, my
inquiry must focus on upholding the integrity of FTC programs,
operations, and decisions. Maintaining public confidence in the FTC's
integrity is my sole focus as the agency's career Designated Agency
Ethics Official.
Background:
(1) Procedural History
On July 25, 2022, Meta petitioned for Chair Khan's recusal ``from
participating in any decisions concerning the FTC's review of Meta's
proposed merger with Within Unlimited, Inc. ('Within'), including any
upcoming agency action or vote related to the merger.'' \3\ Meta's July
2022 Petition expressly incorporates the same statements allegedly made
by Chair Khan before joining the Commission and the same legal
arguments raised by the company in its July 2021 Petition to recuse
Chair Khan from a different FTC antitrust matter.\4\ To properly
consider Meta's July 2022 Petition, one must understand what happened
in the past year.
---------------------------------------------------------------------------
\3\ In re Petition for Recusal of Chair Lina M Khan from
Involvement in the Proposed Merger between Meta Platforms, Inc. and
Within Unlimited, Inc. (July 25, 2022) (``July 2022 Petition'').
\4\ See In Re Petition for Recusal of Chair Lina M Khan from
Involvement in the Pending Antitrust Case Against Facebook, Inc at 1
(July 14, 2021) (``July 2021 Petition''), attached as Ex. A to July
2022 Petition.
---------------------------------------------------------------------------
Pursuant to Commission Rule of Practice 16 C.F.R. Sec. 4.17, the
FTC's Office of the Secretary rejected Facebook's July 2021 Petition as
improperly filed since no administrative proceeding was pending before
the Commission. The Commission later filed an amended complaint against
Facebook in Federal district court, alleging monopolization in the
social networking market. See Fed. Trade Comm'n v. Facebook, Inc., No.
CV 20-3590 (JEB), 2022 WL 103308, (D.D.C. Jan. 11, 2022). Facebook
moved to dismiss the amended complaint and again challenged Chair's
Khan decision to participate.
The district court denied the motion to dismiss and resolved the
recusal question in favor of the Commission. The district court
concluded that when voting in favor of filing a Federal court complaint
against Facebook, the Chair was acting as a prosecutor. After
determining due process standards applicable to adjudicators and those
applicable to final decisionmakers in rulemaking proceedings did not
apply when voting to issue a complaint in Federal court, the district
court applied the due process standards applicable to prosecutors.
Finally, the district court held that none of the statements Facebook
attributed to the Chair required her to recuse from her service as
prosecutor on due process or Federal ethics grounds.\5\
---------------------------------------------------------------------------
\5\ Id. at *19-21.
---------------------------------------------------------------------------
Meta expressly acknowledges it failed to convince the district
court to require Chair Khan's recusal when serving in a prosecutorial
role.\6\ Accordingly, the primary focus of Meta's July 2022 petition is
whether Chair Khan must recuse when serving as adjudicator in the FTC's
Meta/Within merger review. To be clear, Meta also expressly challenges
Chair Khan's participation in the vote to issue an administrative
complaint.\7\ Considering the district court opinion, Meta appears to
argue the vote to issue an administrative complaint is adjudicatory. It
is not necessary to resolve that question in light of the Commission's
vote to issue a Part 3 complaint.\8\ Now that the matter is in
adjudication and before the Chair under 16 C.F.R. Sec. 4.17, the key
question is whether Chair Khan is required to recuse from any further
participation in this adjudicatory proceeding.
---------------------------------------------------------------------------
\6\ July 2022 Petition at 3.
\7\ To the extent Meta intends to relitigate whether the Chair's
statements require her to recuse from participating in a prosecutorial
function, both the district court and the FTC's Designated Agency
Ethics Official have already addressed that concern. See Attachment l:
Federal Ethics Response to Petitions for Chair Khan's Recusal at p.1
(July 26, 2021) (concluding, ``the Amazon and Facebook petitions are
not meritorious at least to the extent they seek to recuse Chair Khan
on Federal ethics grounds from participating as a prosecutor/
investigator in FTC antitrust matters concerning Amazon and/or
Facebook.'').
\8\ The Commission voted to issue an administrative complaint in
Meta/Within on August 11, 2022. It is rather futile to split hairs
about whether a vote to issue an administrative complaint is a
prosecutorial vs. an adjudicatory . function. To protect the integrity
of Commission decisions, if an employee should recuse from the
subsequent administrative adjudication, the prudent course is to also
recuse from participating in the vote authorizing the administrative
adjudication.
---------------------------------------------------------------------------
(2) Prior Statements about Facebook Acquisitions
Before being appointed to the Commission, Chair Khan spoke and
wrote extensively about Facebook and competition law.\9\ The most
relevant statements appear below in bold, with context helpfully
identified and summarized by my colleagues in the Office of the General
Counsel:
---------------------------------------------------------------------------
\9\ See e.g., Lina M. Khan, The Separation of Platforms and
Commerce, 119 Colum. L. Rev. 973, 1002 (2019).

On November 1, 2017, while serving as Director of Legal Policy
for the Open Markets Institute (``OMI''), Chair Khan signed a
letter to then Acting FTC Chair Ohlhausen stating that
``[r]ecent events reveal that Facebook has become too big and
complex for any executive team to manage responsibly, and has
provided a back-door through which America's enemies can attack
our vital social and democratic institutions.'' \10\ The letter
further states that ``[t]he most obvious immediate step to
address Facebook's current power is to prohibit mergers between
Facebook other potentially competitive social networks or other
new and promising products and services. In other words, until
the American people, working through our government, determine
how to ensure that Facebook's power does not harm our Nation's
security, democratic institutions, or the political rights and
commercial freedoms of individual citizens, Facebook should not
be able to amass any greater power through acquisition.'' \11\
---------------------------------------------------------------------------
\10\ Press Release, Open Markets Inst., Open Markets Institute
Calls on the FTC to Block All Facebook Acquisitions (Nov. 1, 2017),
https://www.openmarketsinstitute.org/publications/open-markets-
institute-calls-on-the-ftc-to-block-all-facebook-acquisitions (accessed
Aug. 2, 2022).
\11\ Id.

On March 22, 2018, in an op-ed published in The Guardian and a
related press release on OMI's website, the Executive Directors
of OMI called on the FTC to ``prohibit all future acquisitions
by Facebook for at least five years.'' \12\ [Although she
served as OMI's Director of Legal Policy at that time, Chair
Khan's name does not appear in this op-ed or the OMI press
release.]
---------------------------------------------------------------------------
\12\ Press Release, Open Markets Inst., Fines for Facebook Aren't
Enough: The Open Markets Institute Calls on FTC to Restructure Facebook
to Protect Our Democracy (Mar. 22, 2018), https://
www.openmarketsinstitute.org/fines-for-facebook-arent-enough-the-open-
markets-institute-calls-on-the-ftc-to-restructure-facebook-to-protect-
our-democracy (accessed Aug. 2, 2022).

On May 15, 2018, in a video interview with Bernie Sanders, the
Chair, speaking as OMI's Director of Legal Policy, said, in
response to the statement by another speaker of the need to
break Facebook's power: ``l think that's exactly right. I think
one of the first steps is to make sure Facebook is not
acquiring further power. So, if Facebook tomorrow announces
that it's acquiring another company, I would hope the FTC would
look at that very closely and block it. Making sure that it's
not just out there expanding its power is really important.
It's also important that we have a system of outside checks so
it's not just Zuckerberg seeing who sees what information.''
\13\
---------------------------------------------------------------------------
\13\ The Bernie Sanders Show: The Greatest Threat to Our Democracy?
(May 15, 2018) (starting at 20:29), https://www.youtube.com/
watch?v=wuCAy10h1HI (accessed Aug. 2, 2022).

In addition to the statements above, the Chair has also stated
in her academic writing that Facebook ``blocks apps that it
deemed competitive threats . . . [and] systematically copied
them'' and that Facebook used its informational advantage to
``thwart rivals and strengthen its own position, either through
introducing replica products or buying out nascent
competitors.'' \14\
---------------------------------------------------------------------------
\14\ Lina M. Khan, The Separation of Platforms and Commerce, 119
Colum. L. Rev. 973, 1002-3.

Finally, while counsel to the U.S. House Judiciary Committee's
Subcommittee on Antitrust, Commercial, and Administrative Law,
the Chair had a leading role in authoring an October 2020
report summarizing the Committee's investigation into digital
markets.\15\ The report concluded that ``Facebook has monopoly
power in the market for social networks . . . [which is] firmly
entrenched and unlikely to be eroded by competitive pressure
from new entrants or existing firms.'' \16\ The report
described the Oculus virtual reality headset as one of
Facebook's five primary product offerings, and noted that
Facebook had acquired ``several virtual reality and hardware
companies, such as Oculus . . . [and] Oculus game developers.''
\17\ The report added that Facebook and other tech companies
``have recently focused on acquiring startups in the artificial
intelligence and virtual reality spaces,'' and that in these
spaces, ``the dominant firms of today could position themselves
to control the technology of tomorrow.'' \18\
---------------------------------------------------------------------------
\15\ Lina Khan C.V. (archival version), https://web.archive.org/
web/20210628071354/http:/www.linamkhan.com/bio-l (accessed Aug. 4,
2022).
\16\ Majority Staff of H. Subcomm. On Antitrust, Commercial, and
Admin. Law of the Comm. on the Judiciary, 116th Cong., Investigation of
Competition in Digital Markets at 6 (2020), https://
judiciary.house.gov/uploadedfiles/
competition_in_digital_markets.pdf?utm_campaign=
4493-519 (accessed on Aug. 4, 2022).
\17\ Id at 124.
\18\ Id at 327.

Office of the General Counsel Memorandum, ``Meta Petition to Recuse
Chair Khan'' at p. 3-4 (August 10, 2022) (emphasis added).
Discussion:
(1) Chair Khan is required to recuse from participating as an
adjudicator in Meta/Within if she determines a reasonable
person would question her impartiality. Otherwise, Chair Khan
is not required to recuse on Federal ethics grounds and her
participation would not be a per se federal ethics violation.
Federal employees are required to ensure their conduct upholds
public trust in Federal decisions, programs, and operations. More
specifically, Federal employees must be, as well as appear to be,
impartial in the course of performing their official duties:

Employees shall act impartially and not give preferential
treatment to any private organization or individual; and

Employees shall endeavor to avoid any actions creating the
appearance that they are violating the law or the ethical
standards set forth in this part. Whether particular
circumstances create an appearance that the law or these
standards have been violated shall be determined from the
perspective of a reasonable person with knowledge of the
relevant facts.

5 C.F.R. Sec. Sec. 2635.l0l(b)(S), (14).

The Standards of Ethical Conduct for Employees of the Executive
Branch (``Standards of Conduct'') attempt to balance protecting the
integrity of Government operations with the important aim of achieving
mission success through optimal use of uniquely qualified, highly
skilled personnel. An employee ``should not participate in a particular
matter involving specific parties which he knows is likely to affect
the financial interests of a member of his household, or in which he
knows a person with whom he has a covered relationship is or represents
a party, if he determines that a reasonable person with knowledge of
the relevant facts would question his impartiality in the matter.'' 5
C.F.R. Sec. 2635.50l(a). The use of the term ``covered relationship''
in the Standards of Conduct ``pinpoint[s] certain relationships that
are especially likely to raise issues of lack of impartiality [and]
helps to focus the employee's inquiry.'' 57 Fed. Reg. 35006, 35025
(August 7, 1992) (preamble to final rule). Federal employees have a
``covered relationship'' with:

(i) A person, other than a prospective employer described
inSec. 2635.603(c), with whom the employee has or seeks a
business, contractual or other financial relationship that
involves other than a routine consumer transaction;

(ii) A person who is a member of the employee's household, or who is
a relative with whom the employee has a close personal
relationship;

(iii) A person for whom the employee's spouse, parent or dependent
child is, to the employee's knowledge, serving or seeking to
serve as an officer, director, trustee, general partner, agent,
attorney, consultant, contractor or employee;

(iv) Any person for whom the employee has, within the last year,
served as officer, director, trustee, general partner, agent,
attorney, consultant, contractor or employee; or

(v) An organization, other than a political party described in 26
U.S.C. 527(e), in which the employee is an active participant.

5 C.F.R. Sec. 2635.502(b)(l)(i)-(v).

The Standards of Conduct also contain a regulatory catch-all
provision: ``[a]n employee who is concerned that other circumstances
would raise a question regarding his impartiality should use the
process described inSec. 2635.502 to determine whether he should or
should not participate in a particular matter.'' Id. Sec. 2635.50l(a);
see also id. Sec. 2635.502(a)(2) (reiterating that ``[a]n employee who
is concerned that circumstances other than those specifically described
in this section would raise a question regarding his impartiality
should use the process described in this section to determine whether
he should or should not participate in a particular matter.'').
Accordingly, the U.S. Office of Government Ethics (OGE) recognizes that
certain situations, even if not prohibited by law, are likely to raise
a question in the mind of a reasonable person about an employee's
impartiality. Id. Sec. Sec. 2635.502(a)-(b).
Notably, none of the situations OGE expressly identifies in its
regulations are at issue here. No one has alleged the Chair has a
``covered relationship'' with a party or party representative in this
proceeding. Further, no one has alleged this proceeding would affect
the financial interests of a member of the Chair's household. Meta's
petition therefore must be considered within the scope of OGE's
regulatory catch-all provision concerning ``other circumstances,'' as
set out in Sec. Sec. 2635.50l(a) and 2635.502(a)(2) that may give rise
to an appearance concern.
OGE regulations require employees to first evaluate for themselves
whether appearance concerns warrant their recusal from specific party
matters. However, the Standards of Conduct provide that the agency
designee may independently determine whether an employee must recuse
due to certain appearance of partiality concerns.\19\ Id. Sec.
2635.502(c); see also id. Sec. 2638.104(c)(6) (the Designated Agency
Ethics Official is responsible for, among other things, ``[t]aking
appropriate action to resolve conflicts of interest and the appearance
of conflicts of interest, through recusals, directed divestitures,
waivers, authorizations, reassignments, and other appropriate
means.''). Further, the Standards of Conduct state:
---------------------------------------------------------------------------
\19\ Perhaps the Standards of Conduct included this provision
recognizing that affected employees are not always best suited to
discern their own appearance concerns and to ensure consistency in
Federal ethics decisions made within agencies and across the Executive
Branch. Some agencies have addressed this issue by removing the
affected employee's perspective from the analysis altogether via
supplemental Federal ethics regulations. See e.g., 5 C.F.R.
Sec. Sec. 9401.108-111.

If the agency designee determines that the employee's
impartiality is likely to be questioned, he shall then
determine, in accordance with paragraph (d) of this section,
whether the employee should be authorized to participate in the
matter. Where the agency designee determines that the
employee's participation should not be authorized, the employee
will be disqualified from participation in the matter in
---------------------------------------------------------------------------
accordance with paragraph (e) of this section.

Id. Sec. 2635.502(c)(l).

Unless he receives an authorization to participate from the agency
designee, ``an employee shall not participate'' in a specific party
matter if the agency designee determines ``that the financial interest
of a member of the employee's household, or the role of a person with
whom he has a covered relationship, is likely to raise a question in
the mind of a reasonable person about his impartiality.'' Id.
Sec. 2635.502(e) (emphasis added). As stated above, Meta's July 2022
Petition does not allege partiality concerns based on the financial
interests of a member of Chair Khan's household or the Chair's covered
relationships. The provisions in Section 2635.502(e) and (c) (quoted
above) do not reference the regulatory catch-all language found in 5
C.F.R. Sec. Sec. 2635.501(a) or 2635.502(a)(2) when referring to the
agency designee's authority to make independent determinations
regarding appearance concerns and recusal requirements.\20\ Thus,
recusal is not legally required under these circumstances. Any decision
by the Chair to participate in this matter as an adjudicator is not a
per se federal ethics violation.
---------------------------------------------------------------------------
\20\ This does not appear to be an oversight as OGE regulations
addressing the scope of the agency designee's authority repeat (twice)
all other key components of the appearance of partiality analysis. Id
Sec. Sec. 2635.502(c), (e).
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(2) Several of Chair Khan's statements-made within the past five
years, less than three years before her Commission appointment-
create an appearance of bias sufficient for the FTC's
Designated Agency Ethics Official to recommend Chair Khan
recuse from participating as an adjudicator in Meta/Within.
Nonetheless, Chair Khan may disagree and decide to participate.
Evidence of actual bias is not the standard from a Federal ethics
perspective. The standard is whether it is reasonable to conclude the
employee appears biased. See id Sec. 2635.10l(b)(l4); see also
Sec. 2635.501-502. Chair Khan should recuse from serving as an
adjudicator from Meta/Within if her prior statements about Facebook
would raise a question in the mind of a reasonable person about her
impartiality.
Although the Chair may reach a different conclusion, it is
appropriate to explain why I think a reasonable person would question
her impartiality when serving as an adjudicator in Meta/Within. Id.
Sec. Sec. 2635.502; 2638.104(c)(6). As Designated Agency Ethics
Official, I am frequently required to provide guidance in gray areas,
including when an appearance concern arises within the scope of the
regulatory catch-all provision of the Standards of Conduct. These
issues are rarely litigated and OGE has indicated it will not make
these judgement calls for agencies.\21\ I strive to provide consistent
advice to all FTC employees, taking care to evaluate situations at hand
on a case-by-case basis. This 9areful approach is critical not only to
ensure the overall integrity of FTC operations but to make clear to
both the public and all FTC employees that everyone will receive the
same Federal ethics guidance, regardless of their political leanings,
rank, or their passionate opinions about how particular matters pending
at the FTC should be resolved. To the best of my knowledge, no FTC
employee has participated in a specific party matter when the agency
designee has recommended recusal on appearance or other Federal ethics
grounds. That said, to the best of my knowledge, the participation of
an FTC employee has not been challenged on grounds like the allegations
Meta and Amazon have made against Chair Khan.\22\
---------------------------------------------------------------------------
\21\ OGE is reluctant to serve as the final decisionmaker as to
whether a reasonable person would question the impartiality of an
employee's participation in an agency particular matter. See OGE
Advisory 00 x 4 (April 11, 2000) (``Ultimately, an employee and the
agency ethics official are considered the best arbiters of whether the
circumstances of an individual case warrant recusal under section
2635.502.'').
\22\ Amazon has petitioned for Chair Khan's recusal on similar
grounds. In Re Motion to Recuse Chair Lina M Khan From Involvement in
Certain Antitrust Matters Involving Amazon.com, Inc. (June 30, 2021);
Petition of Reconsideration of Recusal Petition By Amazon.com, Inc.
(July 15, 2021).
---------------------------------------------------------------------------
The statements that, in my view, would raise appearance of
partiality concerns in the mind of a reasonable person if Chair Khan
serves as an adjudicator in this merger review stem from her repeated
calls for the FTC to block all future acquisitions by Facebook. Some
may argue that Chair Khan's statements about Facebook in bold text
above do not raise a question in the mind of a reasonable person about
her impartiality as adjudicator in this proceeding. I disagree. Where
Chair Khan has fairly recently called for the FTC to block any and all
acquisitions by Facebook, there is support for a reasonable,
disinterested person to question whether the Chair would be impartial
in a Commission adjudication of a merger by that same company. From a
Federal ethics standpoint, recusal should follow solely based on
appearances.
As stated in my response to Facebook's July 2021 Petition,\23\ Meta
refers to a variety of public statements made by Chair Khan, prior to
her current appointment to demonstrate ``other circumstances'' are
present that warrant her recusal from this matter due to an appearance
of partiality. The heart of Meta's argument is that Chair Khan launched
her career in large part by making numerous public statements about the
legality of Facebook's business practices. Meta attempts to distinguish
her remarks from other statements often made by other senior officials
prior to entering Federal service by alleging Chair Khan repeatedly
made conclusory statements specifically about the legality of its
business practices as opposed to opining on competition issues more
generally.
---------------------------------------------------------------------------
\23\ See Attachment 1: Federal Ethics Response to Petitions for
Chair Khan's Recusal at p.5 (July 26, 2021).
---------------------------------------------------------------------------
The existence of Chair Khan's public comments concerning Facebook
prior to her FTC appointment is not in dispute. Even assuming without
deciding Facebook's characterizations of her public statements as
described in its July 2021 and July 2022 Petitions are accurate,\24\
the question remains whether such commentary warrants Chair Khan's
recusal from serving as an adjudicator in Meta/Within. Notably, Chair
Khan will presumably become privy to non-public information in the
course of this proceeding that may alter her alleged prior views. Meta
stating this would be impossible for Chair Khan to do impartially does
not make it so.
---------------------------------------------------------------------------
\24\ I have focused on the excerpts cited above, which were also
used by my OGC colleagues in their memorandum to you about due process.
---------------------------------------------------------------------------
Nonetheless, the question is not whether the Chair will serve
impartially but whether she appears to be impartial from the
perspective of a reasonable person with knowledge of the relevant
facts. In my view, the statements in bold text above attributed to
Chair Khan on their face raise an appearance concern in the mind of a
reasonable person where Chair Khan would be serving as an adjudicator
in the Commission's review of an acquisition by that same company.\25\
I do not reach this conclusion lightly and have already expressed my
view-specifically, as applied to Chair Khan, Facebook, and Amazon-that
rarely should employees' statements made prior to their Federal
appointments trigger recusal on catch-all appearance grounds.\26\
---------------------------------------------------------------------------
\25\ This memorandum focuses on Chair Khan's role as adjudicator
because that is nature of her participation in this proceeding. In my
view, someone may reasonably question Chair Khan's ability to serve as
a prosecutor in Meta/Within. However, that is irrelevant to this
proceeding. Moreover, I have already independently issued a 5 C.F.R.
Sec. 502(d) authorization for Chair Khan to participate as an
investigator/prosecutor in FTC antitrust matters affecting Meta (and
Amazon). Attachment 1: Federal Ethics Response to Petitions for Chair
Khan's Recusal (July 26, 2021). No one has brought information to my
attention that warrants revoking that authorization. Accordingly, my
prior Section 502(d) authorization for Chair Khan to participate as
prosecutor/investigator remains in place.
\26\ Generally speaking, such an approach would be impossible to
implement, easily subject to manipulation, and likely disqualify large
swaths of senior officials with relevant experience from serving the
United States. See id at p.6-7.
---------------------------------------------------------------------------
Where the statements concern a specific company (Meta, formerly
known as Facebook) and a particular outcome at this agency (calling for
the FTC to block any acquisition Facebook seeks), it is difficult to
conclude there is no reasonable appearance concern with Chair Khan
serving as an adjudicator in the Commission's merger review of Meta/
Within. In contrast, there likely would be no reasonable basis to
question her impartiality if the statements were made long ago or if
Meta's business practices had changed dramatically since the statements
were made. Such drastically changed circumstances would likely make the
opinions the Chair expressed previously largely irrelevant or at least
woefully outdated and worthy of revisiting in the mind of a reasonable
person. For example, if the Chair's statements had been made a decade
or more ago or if Meta had already broken apart into a smaller company,
the Chair's prior calls for the FTC to block any Facebook acquisition
would no longer appear particularly relevant to the matter now before
the Commission.
All of the statements above tied to the Chair were made within the
past 5 years and since the statements were made Meta has only continued
to grow.\27\ Although Facebook recently rebranded itself as Meta, the
parent company (Facebook) was simply renamed-none of Facebook.'s
underlying companies changed in connection with the rebranding.\28\
Notably, when Meta changed its ticker symbol months later in connection
with the rebranding, OGE advised there was no reportable transaction
for senior officials who previously held Facebook (FB) stock because in
practice they continued to hold the same interest in the same company
(i.e., the same conflicts applied as before, there was simply a change
in name; stockholders did not acquire an interest in a new or different
company).
---------------------------------------------------------------------------
\27\ I do not intend to suggest that five years is the litmus test.
I point that timeframe out as a reference point since her former
employer, OMI, while Chair Khan worked there, advocated for a block of
all Facebook acquisitions for at least the next five years.
\28\ See ``The Facebook Rebrand: What is Meta?'' by Aleksander
Hougan, last updated Feb. 15, 2022 at https://www.cloudwards.net/
facebook-rebrand/#::text=Key%20Takeaways%3A,be%20
affected%20by%20the%20rebranding (accessed Aug. 29, 2022).
---------------------------------------------------------------------------
Further, it appears that Meta's largest acquisitions-including,
purchasing the popular virtual reality platform Oculus-took place prior
to the statements tied to Chair Khan above.\29\ Thus, Facebook's entry
into this space was already a point of concern when the statements were
made. Within is also a virtual reality company. Whether Meta owning
Oculus is relevant to the Commission's Meta/Within review is a question
for our staff in the Bureau of Competition and the Bureau of Economics
to answer. In any event, since the statements tied to Chair Khan were
made fairly recently, after Facebook entered into the virtual reality
space, and Meta has subsequently continued to grow via acquisitions, it
is reasonable for a disinterested person to question her impartiality
when serving as an adjudicator in the Commission's review of Meta/
Within.\30\
---------------------------------------------------------------------------
\29\ See ``Facebook Acquisitions--The Complete List (2022)!'' by
Shruti Bose (Feb. 17, 2022) at https://www.techwyse.com/blog/
infographics/facebook-acquisitions-infographic/ (accessed Aug. 29,
2022).
\30\ I do not recommend that Chair Khan recuse from all future
Commission adjudications involving Meta. For example, nothing in Meta's
petition leads me to believe I would make this same recommendation if
this were a privacy, false advertising, or other consumer protection
litigation matter.
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(3) The Designated Agency Ethics Official has not issued an
authorization for Chair Khan to participate as an adjudicator
in Meta/Within. An ethics authorization is not required for
Chair Khan's participation unless she determines a reasonable
person would question her impartiality.
Even if a reasonable person would question an employee's ability to
be impartial, the employee may receive an ethics authorization \31\ to
participate if the Designated Agency Ethics Official determines the
interests of the United States in the employee's participation
outweighs the appearance concern. 5 C.F.R. Sec. 2635.502(d). For the
reasons discussed further below, in my view, the Government's need for
Chair Khan to participate in this proceeding does not outweigh the
appearance concern. Accordingly, l did not issue a Section 502(d)
authorization for the Chair to participate as an adjudicator in Meta/
Within.
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\31\ For purposes of this discussion the terms ``waiver'' and
``authorization'' are interchangeable. Technically, an employee may
receive an authorization from the Designated Agency Ethics Official,
under 5 C.F.R. Sec. 2635.502(d), to participate despite someone
reasonably questioning the employee's impartiality. In practice, a
Section 502(d) ethics authorization to participate operates and is
often referred to by laypersons as an ethics waiver.
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As a threshold concern, no employee is entitled to a Federal ethics
waiver. Some agencies never issue Federal ethics waivers and, according
to OGE, many others rarely issue waivers and more often require
recusal, divestiture, or even resignation to address conflicts.
Nonetheless, OGE recognizes situations may infrequently arise where an
actual conflict or the appearance of conflict is outweighed by the need
for the United States to act in a particular matter. OGE has developed
waiver processes, with agency designees always playing an essential
role, to address those rare occasions. Id. Sec. 2638.104(c)(6); OGE
Advisory DO-10-005 at p. 5 (April 22, 2010) (``Evaluating possible
waivers is one of the more significant duties that ethics officials
perform to ensure public confidence in the Government's operations and
programs. Both the individual employee's interests and those of the
Government are best served when this process is carried out in a
careful and consistent manner.''). The specific procedures to obtain
and execute a Federal ethics waiver vary depending on the nature of the
conflict, but in all circumstances ``waiver processes permit a review
of facts presented in a specific situation, and authorize someone other
than the affected employee to make a reasoned determination as to
whether a waiver is warranted.'' OGE Advisory DO-10-005 at p. 3.
OGE has unequivocally advised retroactive Federal ethics waivers
are invalid. Id. Since Chair Khan has already participated in the
Commission vote to issue an administrative complaint, one may argue
that Chair Khan is unable to now obtain an authorization to participate
as an adjudicator in this proceeding. However, voting to issue an
administrative complaint is arguably a prosecutorial function.
Regardless, your request for my written analysis about the Chair's
participation as an adjudicator in this matter is not when I first
considered the issue. After careful consideration, prior to the
Commission vote to authorize an administrative complaint, I decided not
to provide an authorization under 5 C.F.R. Sec. 2635.502(d) for Chair
Khan to participate as an adjudicator in Meta/Within. More
specifically, after determining there was a reasonable basis to
question Chair Khan's impartiality when serving as an adjudicator in
Meta/Within, I also considered whether her participation should
nonetheless be authorized. Upon examining the relevant facts in the
context of Chair Khan serving as an adjudicator in this particular
merger review, I did not provide an authorization for the Chair to
participate.
Chair Khan may participate as an adjudicator in Meta/Within,
despite any partiality concerns, if the agency designee authorizes the
participation in accordance with the Standards of Conduct. 5 C.F.R.
Sec. 2635.502(d). The agency designee may authorize participation if,
based on the relevant circumstances, the interest of the Government in
the employee's participation outweighs the concern that a reasonable
person may question the integrity of the agency's programs and
operations. Id. Factors to be considered include:

1. the nature of the relationship involved;

2. the effect that resolution of the matter would have on the
financial interest of the person involved in the relationship;

3. the nature and importance of the employee's role in the matter;

4. the sensitivity of the matter;

5. the difficulty of reassigning the matter to another employee; and

6. adjustments that may be made in the employee's duties that would
reduce or eliminate the likelihood that a reasonable person
would question the employee's impartiality.

Id. Considering these factors, I concluded that the United States'
interest in Chair Khan's participation does not outweigh the concern
that a reasonable person might question her ability to be impartial.
Factors 1-2 favor Chair Khan's participation as there is no
financial interest, ''covered relationship'' or other personal or
business affiliation at issue. Factors 3-4 initially appear to cut in
both directions. As Chair, Ms. Khan's role in any FTC specific party
matter is important and the antitrust concerns at issue are critical to
the U.S. economy. It is critically important that Chair Khan is
empowered to fulfill her official duties while also complying with both
the letter and the spirit of Federal ethics requirements. Competition
matters that come before the Commission often raise cutting-edge
questions of antitrust, intellectual property, and other law. The
resolution of Meta/Within is likely to have major effects on the
marketplace, even beyond the two parties to the proposed merger. As
agency head, it directly serves the public interest that the FTC have
the benefit of Chair Khan's participation in matters before the
Commission that raise significant competition policy questions.
However, since the Chair would be serving as an adjudicator in this
high-profile FTC litigation matter, the scale for factors 3-4 is tipped
in favor of recusal. All employees must act (and appear to act)
impartially, but an employee's role in a proceeding warrants careful
consideration when deciding whether to grant a waiver. When a Federal
employee serves as an adjudicator in a specific party matter, due
process requires a strict standard when evaluating appearance of bias
concerns.\32\ As noted above, supra n. 2, the Commission previously
indicated the Federal judicial recusal standard (28 U.S.C. Sec. 455) is
the relevant standard to apply in a Part 3 proceeding when addressing
the appearance of bias on due process grounds. Section 455 provides in
relevant part ``[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.'' Id. Sec. 455(a). When
considering whether to issue an ethics authorization under 5 C.F.R.
Sec. 2635.502(d), I see no reason to deviate from the Commission's
prior approach absent an extraordinary circumstance.\33\ Thus, the
Chair's role of adjudicator in this litigation matter makes a Federal
ethics waiver harder to justify when a reasonable person may question
her impartiality. Further, the high-profile, sensitive nature of this
proceeding warrants taking all reasonable steps, including electing to
recuse, to preserve the integrity of any decisions the Commission makes
in this matter.
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\32\ Employees working as an adjudicator in a rulemaking proceeding
or serving as a prosecutor/investigator in a litigation matter have
comparatively less strict standards.
\33\ Intel Corp., Docket No. 9341, Opinion and Order Denying Motion
for Disqualification (Public Version) at p. 5, n.10 (Dec. 18, 2009)
(``The Federal statute arguably raises the bar higher by requiring
recusal unless the parties' consent is obtained and, unlike the
Standards of Conduct, there is no provision for authorizing one's
participation in certain circumstances.'')
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Factor 5 also favors recusal. The Commission is certainly able to
function regardless of whether a Commissioner recuses from a matter. To
be clear, Chair Khan's recusal would deprive the Commission of one of
its Presidentially-appointed decision makers. Her voice would be wholly
removed, the Commission would not be able to benefit from her expertise
and judgment as Chair. Given Chair Khan's antitrust professional
experience and scholarship, she is uniquely qualified to participate in
broad policy as well as FTC particular matters that concern
competition. However, Commissioners (including an agency head) have
recused from various FTC particular matters in the past when Federal
ethics or other legal requirements supported recusal. The Commission is
able to review this proposed merger with or without the participation
of a single Commissioner. Factor 6 is largely moot for a Chair (and
other Commissioners); Chair Khan either fully participates or she
recuses.
Only Factors 1-2 favor Chair Khan receiving an authorization to
participate as adjudicator in Meta/Within (i.e., there is no financial
interest, ``covered relationship'' or other personal or business
affiliation at issue). While section 2635.502(d) states that the
``[f]actors which may be taken into consideration include'' the six
factors discussed above, those are not the only factors that the agency
designee may consider when determining whether to issue an
authorization (emphasis added). For the reasons expressed above, the
spirit of the catch-all provision squarely favors recusal here.
Regardless, since only two of the above six factors support issuing an
authorization, I decided not to provide such an authorization to Chair
Khan under these specific circumstances.
There is one sentiment stated above worth repeating-if Chair Khan
decides to participate as adjudicator in Meta/Within, there is no per
se violation of Federal ethics requirements. OGE leaves the resolution
of appearance concerns that fall within the scope of the Standards of
Conduct's catch-all provision to the discretion of the affected
employee.\34\ OGE emphasized the importance of the affected employee's
perspective by advising that:
---------------------------------------------------------------------------
\34\ ``OGE has consistently maintained that, although employees are
encouraged to use the process provided by section 2635.502(a)(2),
`[t]he election not to use that process cannot appropriately be
considered to be an ethical lapse.' '' OGE Advisory 01 x 8 at p.3 (Aug.
23, 2001) (citations omitted).

[I]f an employee believes that a personal friendship, or a
professional, social, political or other association not
specifically treated as a covered relationship, may raise an
appearance question, then the employee should use the section
2635.502 process to resolve the question. If the employee does
use this process and does make a commitment to recuse, then
---------------------------------------------------------------------------
that commitment is binding and must be observed.

OGE Advisory 99 x 8 at p.2 (April 26, 1999).

Accordingly, unless Chair Khan, herself, determines that her
impartiality may reasonably be questioned, Chair Khan is not required
to recuse from participating as adjudicator in this proceeding on
Federal ethics grounds. Moreover, notwithstanding the FTC's Designated
Agency Ethics Official's recommendation to recuse and decision not to
provide a section 2635.502(d) authorization, any choice Chair Khan
makes to participate in Meta/Within as adjudicator is not per se
evidence of a Federal ethics violation.
Conclusion:
Federal employees must avoid any actions creating the appearance
they are violating law or ethical standards. Whether there is a
reasonable appearance concern or an interest of the United States that
overrides such a concern must be considered on a case-by-case basis. I
have not been asked to provide Chair Khan an authorization to
participate as an adjudicator in Meta/Within, and she is not required
to obtain an authorization from me to participate unless she herself
concludes a reasonable person with knowledge of the relevant facts may
question her impartiality to serve as an adjudicator in this
proceeding.
As communicated during the nomination process, I recommend Chair
Khan seek guidance from the FTC's Designated Agency Ethics Official and
others in the Office of the General Counsel, as appropriate, before
participating in any FTC matter where someone may reasonably question
her ability to work on any FTC particular matter. I am unaware of any
action Chair Khan has taken since her appointment that amounts to a per
se federal ethics violation, and I do not believe her participation as
an adjudicator in Meta/Within would constitute a per se federal ethics
violation. In my opinion, there is a reasonable appearance concern with
her participation in this matter as an adjudicator. I also recognize
that reasonable minds may disagree. For the reasons discussed above, I
recommend Chair Khan elect to recuse from participating as an
adjudicator in this proceeding.
______

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

DISSENTING STATEMENT OF COMMISSIONER CHRISTINE S. WILSON
Today, the Commission rules on whether Federal Trade Commission
(``FTC'') Chair Lina M. Khan must recuse herself from playing an
adjudicatory role in the FTC's challenge, in Part 3 administrative
litigation, to the acquisition of Within Unlimited, Inc. (``Within'')
by Meta Platforms, Inc. (``Meta'') \1\ (the ``Meta/Within
Transaction''). This ruling is prompted by Meta's July 25, 2022
petition requesting the recusal of Chair Khan from participating ``in
any decisions concerning the FTC's review of'' the Meta/Within
Transaction (the ``Petition for Recusal'').\2\ On July 27, 2022, the
FTC filed a complaint in the Northern District of California seeking a
temporary restraining order and a preliminary injunction of the Meta/
Within Transaction.\3\ On August 11, 2022, the FTC filed an
administrative Part 3 complaint seeking a permanent injunction of the
Meta/Within Transaction.\4\ On August 24, 2022, Meta was informed that
its recusal petition would be considered as a disqualification motion
under Rule 4.17.\5\ On October 13, 2022, the FTC filed an amended
complaint (``Amended Part 3 Complaint''), again seeking a permanent
injunction of the Meta/Within Transaction.\6\
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\1\ Meta, as used as in this opinion, is equivalent to references
that appear in cited material to Facebook, Inc. Meta is the successor
company of Facebook, Inc. This analysis considers Respondent Meta and
Respondent Mark Zuckerberg equivalent because Mark Zuckerberg is the
Ultimate Parent Entity of Meta. See 16 C.F.R. Sec. 801.1.
\2\ Petition for Recusal of Chair Lina M. Khan from Involvement in
the Proposed Merger between Meta Platforms, Inc. and Within Unlimited,
Inc., FTC No. 221-0040 (July 25, 2022) [hereinafter Petition for
Recusal].
\3\ Complaint at 2, FTC v. Meta Platforms, 3:22-cv-04325 (N.D. Cal.
July 27, 2022).
\4\ Complaint, Meta Platforms, Inc., FTC No. 221-0040 (Aug. 11,
2022).
\5\ Letter from April J. Tabor, Meta Platforms, Inc., FTC No. 221-
0040 (Aug. 24, 2022). The Petition for Recusal is broader than the
question of Chair Khan's recusal as an adjudicator. The current
question before the Commission is limited to Chair Khan's role as an
adjudicator.
\6\ Amended Complaint, Meta Platforms, Inc., FTC No. 221-0040 (Oct.
13, 2022) [hereinafter Amended Part 3 Complaint].
---------------------------------------------------------------------------
This petition is not the first of its type that Meta has filed.
Roughly one year before the FTC filed its complaint seeking to enjoin
the Meta/Within Transaction, Meta filed a petition to disqualify Chair
Khan from an FTC suit in Federal court alleging that Meta monopolized
the market for personal social networking services.\7\ The FTC first
filed this complaint on December 9, 2020.\8\ Judge Boasberg, the
presiding judge, dismissed the complaint on June 28, 2021.\9\ On August
19, 2021, the FTC amended its Federal court complaint against Meta;
Chair Khan joined two other Commissioners in voting to authorize the
amended complaint.\10\ On October 4, 2021, Meta moved to dismiss the
amended complaint, arguing that Chair Khan's participation in the
decision to file the amended complaint violated due process and Federal
ethics rules.\11\ On January 11, 2022, Judge Boasberg denied Meta's
motion to dismiss the FTC's amended complaint.\12\ Judge Boasberg
applied the prosecutorial standard for voting out a Federal court
complaint, and ruled that due process and Federal ethics obligations
did not require Chair Khan's disqualification.\13\
---------------------------------------------------------------------------
\7\ In re Petition for Recusal of Chair Lina M. Khan from
Involvement in the Pending Antitrust Case Against Facebook, Inc. (July
14, 2021). That petition, and its supporting documents, are Exhibit A
of the Meta/Within Transaction Petition for Recusal.
\8\ Complaint, FTC v. Facebook, Inc., No. 1:20-cv-03590-JEB (D.D.C.
Dec. 9, 2020).
\9\ FTC v. Facebook, Inc., 560 F. Supp. 3d 1, 3-4 (D.D.C. June 28,
2021).
\10\ Press Release, Fed. Trade Comm'n, FTC Alleges Facebook
Resorted to Illegal Buy-or-Bury Scheme to Crush Competition After
String of Failed Attempts to Innovate (Aug. 19, 2021), https://
www.ftc.gov/news-events/news/press-releases/2021/08/ftc-alleges-
facebook-resorted-illegal-buy-or-bury-scheme-crush-competition-after-
string-failed.
\11\ Memorandum in Support of Facebook, Inc.'s Motion to Dismiss
the FTC's Amended Complaint at 38-45, FTC v. Facebook, Inc., No. 20-cv-
03590-JEB (D.D.C. Oct. 4, 2021).
\12\ FTC v. Facebook, Inc., 581 F. Supp. 3d 34 (D.D.C. Jan. 11,
2022).
\13\ Id. at 61-65.
---------------------------------------------------------------------------
The issue before the Commission today is distinct in material and
important ways from the issue that Judge Boasberg previously decided.
Three factually analogous cases (one with facts nearly identical to
those in the current situation) represent the most relevant precedent
for considering recusal of an FTC Commissioner.\14\ Those cases make
the conclusion here inevitable. As explained below, Chair Khan's
participation as an adjudicator in the Meta/Within Transaction would
violate both due process principles and Federal ethics standards. Chair
Khan's participation would deprive the merging parties of due process
because her prior statements and work declare Meta's acquisition
strategy in the virtual reality space illegal, and she publicly
demanded that the FTC block all Meta transactions.\15\ Federal ethics
requirements, separate from and in addition to the due process
concerns, also necessitate Chair Khan's disqualification as an
adjudicator in this matter.\16\ Chair Khan stated under oath during her
confirmation hearing that she would ``seek the guidance of the relevant
ethics officials at the agency and proceed accordingly'' if she were
asked to recuse herself from a matter.\17\ Despite making this
commitment, Chair Khan either (1) did not ``seek the guidance of the
relevant ethics officials at the agency and proceed accordingly'' or
(2) asked for guidance and then ignored the recommendation.
\18\ Avoiding or ignoring unwanted
guidance from the FTC ethics staff does not obviate the need for Chair
Khan's recusal as an adjudicator for the Meta/Within Transaction.
---------------------------------------------------------------------------
\14\ See infra notes 86-88.
\15\ See infra notes 86-212 and accompanying text.
\16\ See infra notes 213-263 and accompanying text.
\17\ Senator Mike Lee, Senator Lee Questions FTC Nominee Lina Khan
on Rulemaking, Antitrust Views, YouTube (April 21, 2021), https://
www.youtube.com/watch?v=PQSeqlW_3r8.
\18\
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Procedure for Disqualification and Procedural History
Commission procedures set fo1th the process for dete1mining ''all
motions seeking the disqualification of a Commissioner from any
adjudicative or rulemaking proceeding.'' \19\ Under Commission Rule
4.17, the ``motion shall be addressed in the first instance by the
Commissioner whose disqualification is sought.'' \20\ If the
``Commissioner declines to recuse [herself,] the Commission shall
dete1mine the motion without the participation of such Commissioner.''
\21\ Commission procedure does not provide for full Commission
involvement to resolve petitions for Commissioner recusal in a
prosecutorial or investigative role.\22\ The analysis in this opinion
is therefore limited to the question of recusal concerning Chair Khan's
adjudicato1y role.\23\ In other words, the question before the
Commissioners today is whether Chair Khan can serve as a judge with
respect to issues arising from the FTC's administrative proceedings
concerning the Meta/Within Transaction.
---------------------------------------------------------------------------
\19\ 16 C.F.R. Sec. 4. l 7(a) (emphasis added).
\20\ 16 C.F.R. Sec. 4.l7(b)(3)(i).
\21\ 16 C.F.R. Sec. 4.l7(b)(3)(ii).
\22\ See 16 C.F.R. Sec. 4.17(a) (``. . . any adjudicative or
rulemaking proceeding.'').
\23\ In the separate matter involving the FTC and Meta concerning
alleged monopolization of personal social networking services discussed
above, Judge Boasberg ruled that due process and Federal ethics did not
require Chair Khan's recusal despite a motion from Meta requesting
Chair Khan's disqualification. Judge Boasberg applied the prosecutorial
standard for voting out a complaint to be filed in Federal court. Judge
Boasberg's analysis shines no light on the question of whether Chair
Khan can sit as an adjudicator in a Part 3 proceeding. Judge Boasberg
held that a line of cases involving former FTC Chair Dixon is ``not
relevant because'' in those cases, the Commissioners were ``acting
there as an adjudicatory body'' while in the case in front of Judge
Boasberg, the Commissioners were ``simply filing a case in Federal
court.'' Facebook, 581 F. Supp. 3d at 61-65.
---------------------------------------------------------------------------
On September 26, Chair Khan's office sent to other Commissioners'
offices a ``Circulation for Information'' with a five-page statement
(the ``September 26 Statement'') attached. The statement's first
paragraph states, ``I reject Meta's petition and decline to recuse
myself from this matter.'' \24\ The memo then describes Chair Khan's
reasoning for declining to recuse herself.\25\ Based on that statement,
the three remaining Commissioners tasked with deciding recusal believed
that Chair Khan had addressed the ``petition in the first instance''
and the next step of the Rule 4.17 process began.\26\ Believing that
the recusal petition then fell to the remaining Commissioners to
``determine the motion without the participation of'' Chair Khan,\27\ a
Commission meeting was held on October 4, 2022, to discuss the issue.
---------------------------------------------------------------------------
\24\ Internal Statement of Chair Lina M. Khan Regarding the
Petition for Recusal from Involvement in the Proposed Merger Between
Meta Platforms, Inc. and Within Unlimited, Inc., FTC No. 221-0040
(Sept. 26, 2022) [hereinafter September 26 Statement]. On November 18,
2022, the Chair provided an additional statement that revises the
September 26 Statement in ways that are immaterial to the analysis in
this dissent.
\25\ Id.
\26\ 16 C.F.R. Sec. 4.17(b)(3). On September 26, 2022, the same day
the Chair's statement was circulated, the offices of all three
Commissioners tasked with deciding recusal communicated agreement to
schedule a meeting to discuss the recusal issue. The next day, on
September 27, 2022, a Sunshine Motion was circulated, and a Commission
meeting was scheduled for October 4, 2022.
\27\ 16 C.F.R. Sec. 4.17(b)(3)(ii).
---------------------------------------------------------------------------
On October 5, 2022, the Commissioners were notified that Chair
Khan's September 26 Statement inadvertently was distributed to FTC
staff litigating to block the Meta/Within Transaction. FTC staff
requested that the September 26 Statement be provided to counsel for
Meta and Within to cure any potential information asymmetry in the Part
3 proceeding. The Commission believed that the September 26 Statement
was part of the Commission's deliberative process in deciding recusal.
Discussion ensued regarding waiving the deliberative process privilege
so that the FTC's Office of the Secretary could provide the September
26 Statement to counsel for Meta and Within. Before the Commission
could act, the Commission was informed that the Chair considered the
September 26 Statement to be a draft, and that the Chair potentially
controlled work product privilege over the document such that a
question was raised whether the Commission unilaterally could release
it.
To attempt to rectify the situation, the FTC's Office of the
Secretary sent a letter on October 6, 2022, stating:

the motion to stay the administrative proceeding in this matter
is fully briefed and is before the Commission. Please be
advised that this motion will be resolved after the Commission
determines the motion for disqualification that is currently
pending before it. Commission Rule 4.17 provides that in the
event that the Commissioner who is the subject of a recusal
motion `declines to recuse himself or herself from further
participation in the proceeding, the Commission shall determine
the motion without the participation of such Commissioner.'
\28\
---------------------------------------------------------------------------
\28\ Letter from April J. Tabor, Meta Platforms, Inc., FTC No. 221-
0040 (Oct. 6, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/
D9411LetterCounselFB.pdf.

This letter was meant to cure any information asymmetry that
existed.\29\
---------------------------------------------------------------------------
\29\ Joint Statement of Recent Decision, FTC v. Meta Platforms,
Case 3:22-cv-04325 (N.D. Cal. Oct. 17, 2022) (``According to the FTC,
these developments are reflected in an October 6, 2022 letter from the
Secretary to counsel, which appears on the FTC's public docket and is
attached hereto as Exhibit A[.]'').
---------------------------------------------------------------------------
Chair Khan sent the following e-mail to Commissioners' office on
October 7, 2022:

It has come to my attention that there may be ambiguity
concerning the statement circulated for information on
September 26, 2022. Pursuant to Rule 4.17(b)(3), I have
declined to recuse myself from further participation in the
proceeding. This decision was effective on September 26, 2022.
The September 26 statement outlining my rationale for this
decision is a draft and some of the language may change. I will
circulate a more final statement at a later date.

Because the Commissioners remained concerned about an ongoing
information asymmetry in the Part 3 litigation, an emergency Commission
meeting was held on October 10, 2022. At that meeting, the Commission
determined that Chair Khan in fact did not hold work product privilege
over the document and that the Commission consequently could vote to
waive its deliberative process privilege. Participating Commissioners
agreed that counsel for Meta and Within should receive the September 26
Statement and an explanatory letter. These materials were sent to
counsel for Meta and Within on October 12, 2022.
Two of the three participating Commissioners have determined that
Chair Khan's recusal from the Part 3 proceedings is not warranted. For
the reasons explained below, I respectfully dissent.
Chair Khan's Work and Statements
The Petition for Recusal claims that ``Chair Khan has prejudged the
propriety of the pending merger between Meta and Within'' and that her
participation ``would violate both due process and her obligations of
impartiality under the Federal ethics rules.'' \30\ The Petition for
Recusal focuses on work in which ``Chair Khan has consistently and
publicly maintained that Meta has violated the antitrust laws'' and
``Chair Khan's public statements and writings reflect her belief that
the government should block future acquisitions by Meta, regardless of
the merits of the transaction.'' \31\ Certain statements and written
work, attributable to Chair Khan and explained below, are relevant to
this analysis.
---------------------------------------------------------------------------
\30\ Petition for Recusal, supra note 2, at 2.
\31\ Id. at 1-2.
---------------------------------------------------------------------------
Chair Khan's Work at Open Markets Institute
In 2017 and 2018, Chair Khan was Legal Director at Open Markets
Institute (``OMI''). On November 1, 2017, Chair Khan and other senior
leaders at OMI signed a letter to then-Acting FTC Chair Ohlhausen
stating that ``[t]he most obvious immediate step to address Facebook's
current power is to prohibit mergers between Facebook [and] other
potentially competitive social networks or other new and promising
products and services.'' \32\ The letter explained now-Chair Khan's
reasoning behind her request for the FTC to block all transactions
involving Meta. The letter stated that ``[r]ecent events reveal that
Facebook has become too big and complex for any executive team to
manage responsibly, and has provided a back-door through which
America's enemies can attack our vital social and democratic
institutions.'' \33\ The letter stated that all transactions involving
Meta should be blocked ``until the American people, working through our
government, determine how to ensure that Facebook's power does not harm
our Nation's security, democratic institutions, or the political rights
and commercial freedoms of individual citizens, Facebook should not be
able to amass any greater power through acquisition.'' \34\
---------------------------------------------------------------------------
\32\ Press Release, Open Markets Inst., Open Markets Institute
Calls on the FTC to Block All Facebook Acquisitions (Nov. 1, 2017),
https://www.openmarketsinstitute.org/publications/open-markets-
institute-calls-on-the-ftc-to-block-all-facebook-acquisitions.
\33\ Id.
\34\ Id.
---------------------------------------------------------------------------
In a press release issued on March 22, 2018, ``Open Markets
[Institute] call[ed] on the FTC to. . .prohibit all future acquisitions
by Facebook for at least five years.'' \35\ The press release
referenced an op-ed authored by the Executive Director of OMI and a
fellow at OMI that mirrored the calls in the press release.\36\ Not
only was Chair Khan Legal Director of OMI at this time, but as
explained below, Chair Khan subsequently embraced this proposal in her
academic writing by citing to this op-ed and adopting its
positions.\37\
---------------------------------------------------------------------------
\35\ Press Release, Open Markets Inst., Fines for Facebook Aren't
Enough: The Open Markets Institute Calls on FTC to Restructure Facebook
to Protect Our Democracy (Mar. 22, 2018), https://
www.openmarketsinstitute.org/publications/fines-for-facebook-arent-
enough-the-open-markets-institute-calls-on-ftc-to-restructure-facebook-
to-protect-our-democracy.
\36\ Id.
\37\ See Lina M. Khan, Sources of Tech Platform Power, 2 Geo. L.
Tech. Rev. 325, 333 (2018) [hereinafter Khan, Sources of Tech Platform
Power) (citing Barry Lynn & Matt Stoller, Facebook Must Be
Restructured. The FTC Should Take These Nine Steps Now, Guardian (Mar.
22, 2018)) (``These reforms would include, for example, structuring
competition in platform markets (by creating a presumption against
future acquisitions and undoing past acquisitions where necessary) and
ending surveillance-based business models (by requiring platforms to
spin off their ad networks).''). See also supra notes 53 & 181 and
accompanying text.
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On May 15, 2018, speaking as OMI's Director of Legal Policy in a
video interview, Chair Khan said, ``I think one of the first steps is
to make sure Facebook is not acquiring further power. So, if Facebook
tomorrow announces that it's acquiring another company, I would hope
the FTC would look at that very closely and block it. Making sure that
it's not just out there expanding its power is really important.'' \38\
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\38\ The Bernie Sanders Show, The Greatest Threat to Our Democracy?
(May 15, 2018) (starting at 20:29), https://www.youtube.com/
watch?v=wuCAy10hlHI.
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Chair Khan's Work on the House Majority Staff's Investigation and
Report
In June 2019, the House Judiciary Committee's Subcommittee on
Antitrust, Commercial, and Administrative Law (the ``House
Subcommittee'') began an investigation into ``the dominance of Amazon,
Apple, Facebook, and Google, and their business practices to determine
how their power affects our economy and our democracy.'' \39\ Chair
Khan served as Counsel to the Majority Staff of the House Subcommittee,
during which time she ``led the congressional investigation into
digital markets and the publication of its final report.'' \40\
According to press reports, Chair Khan and a small group of staffers
``often worked 70-hour weeks to keep the probe on track, all the way
from the highly orchestrated questioning of the big tech CEOs down to
whether Basecamp's David Heinemeier Hansson wore a jacket during his
testimony. . . . The future of antitrust in the U.S. will be indelibly
tied to the work of these relatively unknown staffers, who wielded
massive influence over issues that matter to tech executives and their
businesses--for better or for worse.'' \41\ Chair Khan reportedly
``poured her `sweat and blood' into the investigation'' and ``left her
fingerprints all over the investigation.'' \42\ Zephyr Teachout, a law
professor and antitrust enforcer for whom Chair Khan served as policy
director during Teachout's run for Governor of New York, reported that
she `` `could see Lina's work everywhere in the [CEO] hearing,' . . .
pointing out that many of the questions harkened directly back to
[Chair Khan's] academic work.'' \43\
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\39\ Majority Staff Report and Recommendations of H. Subcommittee
On Antitrust, Commercial, and Administrative Law of the Committee on
the Judiciary, 116Th Cong., Investigation of Competition in Digital
Markets at 6 (2020), [hereinafter Majority Staff
Report] https://judiciary.house.gov/uploadedfiles/
competition_in_digital_markets.pdf?utm_cam
paign=4493-519.
\40\ Petition for Recusal, supra note 2, at ex. C.
\41\ Emily Birnbaum, A tiny team of House staffers could change the
future of Big Tech. This is their story., Protocol (Oct. 6, 2020),
https://www.protocol.com/house-antitrust-report-staffers-big-
tech#toggle-gdpr.
\42\ Id.
\43\ Id.
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The investigation entailed collecting nearly 1.3 million documents
from the companies under investigation and third parties, and
interviewing more than 240 market participants.\44\ Additionally, the
Subcommittee held seven hearings, including testimony from the Chief
Executive Officers of the investigated companies--which included Meta's
Mark Zuckerberg.\45\ The result of the investigation was a 450-page
report authored by the Subcommittee's Majority staff (``Majority Staff
Report''), which included Chair Khan as a co-author.\46\ The Majority
Staff Report described Meta's ``Oculus, a virtual reality gaming
system[,]'' as one of Meta's ``five primary product offerings[.]'' \47\
The investigation found that Meta ``acquired several virtual reality
and hardware companies, such as Oculus'' and ``[m]ore recently. .
.Oculus game developers[.]'' \48\ The report's analysis into the
acquisition of Oculus game developers included Meta's acquisition of
Beat Games (maker of Beat Saber), Sanzaru Games, and Ready at Dawn.\49\
The report found that ``Facebook's serial acquisitions reflect the
company's interest in purchasing firms that had the potential to
develop into rivals before they could fully mature into strong
competitive threats.'' \50\
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\44\ Majority Staff Report, supra note 39, at 6 & 8.
\45\ Id at 6.
\46\ The Majority Staff Report was later adopted by the U.S. House
Committee On The Judiciary. Press Release, U.S. House Committee On The
Judiciary, Judiciary Committee Publishes Final Report on Competition in
the Digital Marketplace (July 19, 2022), https://judiciary.house.gov/
news/documentsingle.aspx?DocumentID=5025.
\47\ Majority Staff Report, supra note 39, at 132.
\48\ Id. at 149.
\49\ Id. at 424 (listing acquisitions by Meta); id at fn. 859
(citing articles referencing Meta's acquisitions of Oculus game
developers Beat Games, Sanzaru Games, and Ready at Dawn).
\50\ Id. at 150.
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The report concludes that:

all four of the firms investigated by the Subcommittee have
recently focused on acquiring startups in the artificial
intelligence and virtual reality space.

Ongoing acquisitions by the dominant platforms raise several
concerns. Insofar as any transaction entrenches their existing
position, or eliminates a nascent competitor, it strengthens
their market power and can close off market entry. Furthermore,
by pursuing additional deals in artificial intelligence and in
other emerging markets, the dominant firms of today could
position themselves to control the technology of tomorrow.

It is unclear whether the antitrust agencies are presently
equipped to block anticompetitive mergers in digital markets.
The record of the Federal Trade Commission and the Justice
Department in this area shows significant missteps and repeat
enforcement failures.\51\
---------------------------------------------------------------------------
\51\ Id. at 387 (emphasis added).
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Chair Khan's Public Statements and Academic Work
Chair Khan has made additional public statements, including through
her academic writings and interviews, that are relevant to the recusal
petition. As noted above, Chair Khan's academic work directly
influenced her work on the House Subcommittee and the Majority Staff
Report. In reference to the congressional investigation into digital
markets, Zephyr Teachout, a co-author of Chair Khan's and for whom Khan
served as policy director during Teachout's campaign to become the
Governor of New York, commented that she `` `could see Lina's work
everywhere in the [CEO] hearing,' . . . pointing out that many of the
questions harkened directly back to [Chair Khan's] academic work.''
\52\ Chair Khan's academic work also adopted the positions she and her
previous employers advanced. For example, Chair Khan, in an academic
article, adopted the decision to create ``a presumption against future
acquisitions'' by citing the OMI op-ed that argued for prohibiting
``all future acquisitions by Facebook for at least five years.'' \53\
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\52\ Birnbaum, supra note 41.
\53\ Khan, Sources of Tech Platform Power, supra note 37, at 333.
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Chair Khan's academic writings have explained Meta's acquisition
strategy regarding nascent markets and potential competitors. For
example, Chair Khan asserted that Meta ``systematically copied'' apps
that ``it deemed competitive threats'' and ``established a systemic
informational advantage (gleaned from competitors) that it can reap to
thwart rivals and strengthen its own position, either through
introducing replica products or buying out nascent competitors.'' \54\
Chair Khan has argued that Meta can ``detect which rival apps are
succeeding'' and ``would often give companies a choice: Be acquired by
[Meta], or watch it roll out a direct replica.'' \55\ Chair Khan has
described this strategy as Meta's ``systematic ability to exploit
information.'' \56\
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\54\ Lina M. Khan, The Separation of Platforms and Commerce, 119
Colum. L. Rev. 973, 1002-3 (2019) [hereinafter Khan, The Separation of
Platforms and Commerce].
\55\ Id. 977-78.
\56\ Khan, Sources of Tech Platform Power, supra note 37, at 330.
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In a later interview, Chair Khan expanded on her views, stating
that Meta's ``acquisition strategy was basically a land grab to buy up
as many assets and kind of lock up the market, and that certain
acquisitions such as [Meta's] purchase of Instagram was an effort to
really neutralize these competitive threats[.]'' \57\ The problem,
according to Chair Khan, is that Meta ``can either make an aggressive
acquisition bid, taming the nascent threat by bringing it in-house, or
can introduce an identical app, eating into its business.'' \58\ Chair
Khan argued in one academic article that Meta's ``threat of entry . . .
into platform-adjacent markets is dampening investment in complementary
segments[.]'' \59\ Specifically, Chair Khan wrote that Meta's
``willingness to appropriate information from and mimic the
functionality of apps has created `a strong disincentive for investors'
to fund services that [Meta] might copy.'' \60\
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\57\ Sway, Opinion, She's Bursting Big Tech's Bubble, N.Y. Times
(Oct. 29, 2020), https://www.nytimes.com/2020/10/29/opinion/sway-kara-
swisher-lina-khan.html?showTranscript=1 (transcript).
\58\ Khan, Sources of Tech Platform Power, supra note 37, at 330-
31.
\59\ Khan, The Separation of Platforms and Commerce, supra 54 at
1009 (``Anecdotal evidence suggests that both actual entry and the
threat of entry by digital platforms into platform-adjacent markets is
dampening investment in complementary segments, now known as a `kill-
zone.' For example, a survey of more than two dozen Silicon Valley
investors revealed that Facebook's willingness to appropriate
information from and mimic the functionality of apps has created `a
strong disincentive for investors' to fund services that Facebook might
copy. . . . This concern raised by venture capitalists makes sense: A
potential innovator (or a potential funder of a potential innovator)
decides whether to invest based on the anticipated risk and reward of
realizing the innovation. Anticipating platform discrimination or
appropriation will lower expected rewards, depressing the incentive to
invest. Even the uncertainty of discrimination can dissuade entry by
heightening risk.'') (internal citations omitted).
\60\ Id.
---------------------------------------------------------------------------
Chair Khan's statements also connect her views of Meta's conduct to
the virtual reality space. Chair Khan, in commenting on Meta's
Instagram and WhatApp acquisitions, explained that ``[i]n hindsight, I
think, looking back, looking at the documents, looking at the evidence
that was available, now the agency was able to determine, that was an
illegal transaction.'' \61\ In commenting on the ``complaints from FTC
& 48 AGs suing'' Meta to unwind the Instagram and WhatsApp
acquisitions, Chair Khan connected Meta's earlier acquisition strategy
to virtual reality by stating that Meta ``is now following this
playbook in the virtual reality space. Quoting [Representative Pramila
Jayapal] & [the Majority Staff Report], Bloomberg notes [Meta] is using
same `copy-acquire-kill' strategy it used to monopolize social
networking. Key task for enforcers is to prevent a repeat[.]'' \62\
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\61\ Sway, Opinion, Exclusive: Lina Khan Is (Still) Bursting Big
Tech's Bubble, N.Y. Times (Jan. 19, 2022), https://www.nytimes.com/
2022/01/19/opinion/sway-kara-swisher-lina-khan.
html?showTranscript=1.
\62\ Petition for Recusal, supra note 2, at ex. D.
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Chair Khan's academic writings add further context regarding her
agenda for Meta. Chair Khan analyzed and commented on Meta's conduct
while ``in competition with developers'' including allegedly having
``foreclosed competitors from its platform and appropriated
[developers'] business information and functionality.'' \63\ Chair Khan
argued that users and advertisers rely on Meta as a dominant
intermediary.\64\ According to Chair Khan, users are beholden to Meta
because of its dominant position and a lack of alternatives, which
allows Meta to pursue deliberate strategies to downgrade the privacy
and control of their users.\65\ Chair Khan also concluded in her
academic work that Meta ``is a dominant social network.'' \66\ Chair
Khan stated that app developers and online publishers rely on Meta and
that in this context, Meta ``has used its dominant position to
appropriate from rivals.'' \67\ Additionally, Chair Khan found that
Meta ``leveraged its dominant position as a communications network to
extract sensitive business information from publishers.'' \68\ Chair
Khan's scholarship states that the ``backdrop of platform dominance and
democratic decay'' requires ``attending to issues of market structure
or political economic influence[.] \69\ In her academic writing, Chair
Khan has likened Meta CEO Mark Zuckerberg to a doctor called ``Marta
Zuckerberg'' who ``floods you (and her two billion other patients) with
ads for all manner of pills and procedures[.]'' \70\
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\63\ Khan, The Separation of Platforms and Commerce, supra 54 at
1001 (``Facebook also delivers certain apps and features directly,
placing it in competition with developers. It has both foreclosed
competitors from its platform and appropriated their business
information and functionality.'').
\64\ Dave E. Pozen & Lina M. Khan, A Skeptical View of Information
Fiduciaries, 133 Harv. L. Rev. 497, 516 (2019) (``Many advertisers and
content producers are just as captive to Facebook as its end users are,
or even more so. Insofar as the purpose of the information-fiduciary
proposal is to rebalance the relationship between dominant online
intermediaries and those who depend on them, it is unclear why its
protections should cover only one set of dependents.'').
\65\ Id. at 517-18 (``The loss of privacy and control experienced
by Facebook users therefore does not stem, organically, `from the
structure and nature of the fiduciary relation.' It stems from
Facebook's deliberate efforts to create such vulnerabilities.
Facebook's dominant market position supports this strategy. To the
extent that users feel beholden to Facebook, it is not because the
company offers them especially skillful services or judgments so much
as because of a lack of viable alternatives. By virtue of owning four
of the top five social media applications, Facebook makes it difficult
to escape the company's ecosystem.'') (internal citations omitted).
\66\ Khan, The Separation of Platforms and Commerce, supra 54 at
1001.
\67\ Id. (``There are at least two sets of market participants that
both rely on Facebook's network and find themselves in competition with
Facebook: app developers and online publishers. In both markets,
Facebook has used its dominant position to appropriate from rivals.'').
\68\ Id. at 1003.
\69\ Pozen & Khan, supra note 64, at 528 (``Against this backdrop
of platform dominance and democratic decay, the user-centric nature of
the information-fiduciary proposal should give pause. The relevant
inquiry for legal reformers, we submit, should be not just how a firm
such as Google or Facebook exercises its power over end users, but
whether it ought to enjoy that kind of power in the first place.
Limiting the dominance of some of these firms may well have salutary
effects for consumer privacy, both by facilitating competition on
privacy protection and by reducing the likelihood that any single data-
security failure will cascade into a much wider harm. More than that,
the very effort to think through the ramifications of platform power
would force policymakers to grapple with a wide range of systemic
concerns that fall outside the fiduciary frame. To be clear, we do not
believe that addressing the market clout of companies like Facebook
will remedy the full panoply of harms associated with them. Nor do we
view antitrust enforcement as the sole tool for addressing this
dominance. Our point here (which we will develop further in section
IV.B) is that any broad regulatory framework or `grand bargain' for
social media that focuses on abusive data practices, without attending
to issues of market structure or political economic influence, is bound
to be at best highly incomplete and at worst an impediment to necessary
reforms.'').
\70\ Id. at 514 (``. . . imagine visiting a doctor--let's call her
Marta Zuckerberg--whose main source of income is enabling third parties
to market you goods and services. Instead of requesting monetary
payment for services rendered, Dr. Zuckerberg floods you (and her two
billion other patients) with ads for all manner of pills and procedures
from the second you set foot in her office, and she gets paid every
time you try to learn more about one of these ads or even look in their
direction. In fact, this is just about the only way she gets paid--as
her financial backers are apt to remind her. The ads themselves,
moreover, are tightly tailored to your economic, demographic, and
psychological profile and to any consumer frailties you exhibit. They
are also continually updated in light of information Dr. Zuckerberg
collects on you; to be sure she does not miss anything, she has planted
surveillance devices all around your neighborhood as well as her
office. Can this institutional sociology and incentive structure
plausibly be reconciled with a commitment to prioritizing your
health?'').
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Allegations in the Meta/Within Transaction Complaint
On October 13, 2022, the FTC filed the Amended Part 3 Complaint
alleging that Meta's acquisition of Within is an illegal
acquisition.\71\ The complaint explains that Meta is ``one of the
largest technology companies in the world and the leading provider of
virtual reality (`VR') devices and applications (`apps') in the United
States'' and that Within is ``a software company that develops apps for
VR devices[.]'' \72\ The complaint claims that Meta is a ``global
technology behemoth'' that ``reaches into every corner of the world
through its `Family of Apps'--Facebook, Instagram, Messenger, and
WhatsApp--with more than three billion regular users.'' \73\
---------------------------------------------------------------------------
\71\ Amended Part 3 Complaint, supra note 6, at Count 1.
\72\ Id. at 1.
\73\ Id. at 2.
---------------------------------------------------------------------------
The complaint alleges that Meta is now ``[s]eeking to expand its
empire even further, Meta in recent years has set its sights on
building, and ultimately controlling, a VR `metaverse.' '' \74\
According to the complaint, ``Meta's campaign to conquer VR began in
2014 when it acquired Oculus[.]'' \75\ The complaint notes that ``Meta
controls the wildly popular app Beat Saber, which it acquired by
purchasing Beat Games in November 2019'' and that ``Meta owns a number
of other VR apps, some of which it developed in-house but most of which
it acquired by rolling up other app studios.'' \76\ Specifically, the
complaint notes that ``[s]ince its acquisition of Beat Games, Meta has
continued to acquire a series of studios behind many popular VR apps''
\77\ including Sanzaru Games \78\ and Ready at Dawn Studios.\79\ The
complaint claims that ``Meta has an explicit strategy of harnessing
strong network effects in VR to ensure its leading status in this
growing industry. Meta could have chosen to try to compete with Within
on the merits; instead, Meta decided it preferred to simply buy[.]''
\80\
---------------------------------------------------------------------------
\74\ Id.
\75\ Id. at 3.
\76\ Id. at 4.
\77\ Id. at 27.
\78\ Id. at 27.a.
\79\ Id. at 27.b.
\80\ Id. at 5.
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According to the complaint, ``network effects on a digital platform
can cause the platform to become more powerful--and its rivals weaker
and less able to seriously compete--as it gains more users, content,
and developers'' \81\ and ``Meta seeks to exploit the network-effects
dynamic in VR.'' \82\ The complaint notes that Meta's VR ``strategy''
and ``vision,'' through instructions from Meta's CEO, date back ``[a]s
early as 2015.'' \83\ The complaint alleges that the ``proposed
acquisition of Within would be one more step along that path toward
dominance.'' \84\ The complaint's requested relief includes enjoining
the Meta/Within Transaction.\85\
---------------------------------------------------------------------------
\81\ Id. at 6.
\82\ Id. at 7.
\83\ Id.
\84\ Id. at 8.
\85\ Id. at page 18.
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Due Process and Federal Ethics
The Commission is required to recuse Chair Khan if her
participation would violate either due process or Federal ethics
requirements.
Due Process Requirements
In a case dealing with the potential recusal of a former FTC Chair
from agency adjudication, the D.C. Circuit held that ``[t]he test for
disqualification has been succinctly stated as being whether `a
disinterested observer may conclude that (the agency) has in some
measure adjudged the facts as well as the law of a particular case in
advance of hearing it.' '' \86\ In other words, as stated by the Sixth
Circuit in another case involving the potential recusal of the same
former FTC Chair,''[i]t is fundamental that both unfairness and the
appearance of unfairness should be avoided. Wherever there may be
reasonable suspicion of unfairness, it is best to disqualify.'' \87\
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\86\ Cinderella Career & Finishing Schools, Inc. v. FTC, 425 F.2d
583, 591 (D.C. Cir. 1970) (quoting Gilligan, Will & Co. v. SEC, 267
F.2d 461, 469 (2d Cir. 1959), cert. denied, 361 U.S. 896 (1959)).
\87\ American Cyanamid Co. v. F.T.C., 363 F.2d 757, 767 (6th Cir.
1966).
---------------------------------------------------------------------------
These two cases and one other D.C. Circuit case\88\ are most
analogous to the facts at hand and best present the case law for
considering recusal of an FTC Commissioner. The cases involve former
FTC Chair Paul Rand Dixon. Dixon began his career as a trial attorney
at the FTC in 1938.\89\ He served almost 20 consecutive years as a
staff member at the FTC, leaving only for his years of service in the
Navy during WWII and returning to the FTC after the war.\90\ Dixon left
the FTC and served as Counsel and Staff Director for the U.S. Senate
Antitrust and Monopoly Subcommittee beginning in 1957.\91\ In 1961,
Dixon became Chair of the FTC. He remained Chair until January 1, 1970,
but he continued to serve as an FTC Commissioner (and briefly Acting
Chair in 1976) until his retirement on September 25, 1981.\92\
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\88\ Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964), vacated on
other grounds, 381 U.S. 739 (1965).
\89\ Paul Rand Dixon Personal Papers, John F. Kennedy Presidential
Library and Museum, https://www.jfklibrary.org/asset-viewer/archives/
PRDPP (``Dixon joined the Federal Trade Commission (FTC) in July 1938
as a trial attorney, focusing on both antimonopoly and anti-deceptive
practice cases.'').
\90\ Id. (``During World War II, he served as a Lieutenant in the
U.S. Navy. Following the war, he returned to his position with the
FTC.).
\91\ Id.
\92\ Id.
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Cinderella Career & Finishing Schools
In Cinderella Career & Finishing Schools, Inc. v. FTC, the FTC
filed a complaint charging a trade school with ``making representations
and advertising in a manner which was false, misleading and
deceptive[.]'' \93\ The specific allegations included that the
``operator of a Washington, D.C., trade school . . . misrepresent[ed]
that the school extends loans to students, that it is approved by a
government agency, that its courses will qualify students to be airline
stewardesses or buyers for retail stores, exaggerating the availability
of jobs through the school's placement service, and using false
inducements to obtain signatures on obligations to pay money.'' \94\ An
FTC hearing examiner \95\ held hearings and then issued an initial
decision dismissing the complaint.\96\ Complaint counsel appealed the
initial decision to the Commissioners.\97\
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\93\ 425 F.2d at 584.
\94\ In re of Sch. Servs., Inc., 74 F.T.C. 920 (1968) (describing
the Commission's order deciding the appeal), rev'd. 425 F.2d 583 (D.C.
Cir. 1970).
\95\ For the purposes of the analysis in this opinion, a ``hearing
examiner'' is equivalent to what the FTC now calls an administrative
law judge.
\96\ Cinderella Career & Finishing Schools, 425 F.2d at 584 (``. .
. a hearing examiner held a lengthy series of hearings which consumed a
total of sixteen days; these proceedings are reported in 1,810 pages of
transcript. After the Commission had called twenty-nine witnesses and
the petitioners twenty-three, and after the FTC had introduced 157
exhibits and petitioners 90 (Petitioners' Brief at 7), the hearing
examiner ruled in a ninety-three page initial decision that the charges
in the complaint should be dismissed.'').
\97\ Id.
---------------------------------------------------------------------------
While the appeal was pending before the Commission, Chair Dixon
gave a speech to the Government Relations Workshop of the National
Newspaper Association.\98\ In the speech, Chair Dixon posed questions
about the ``standards'' a newspaper ``maintain[s] on advertising
acceptance[.]'' \99\ The speech included hypothetical questions: ``What
would be the attitude toward accepting good money for advertising by a
merchant who conducts a `going out of business' sale every five months?
What about carrying ads that offer college educations in five weeks,
fortunes by raising mushrooms in the basement, getting rid of pimples
with a magic lotion, or becoming an airline's hostess by attending a
charm school?'' \100\ He closed the relevant paragraph of his speech by
stating that ``advertising acceptance standards could stand more
tightening by many newspapers'' because ``the Federal Trade Commission,
even where it has jurisdiction, could not protect the public as
quickly.'' \101\
---------------------------------------------------------------------------
\98\ Id. at 589.
\99\ Id. at 589.
\100\ Id. at 589-90 (emphasis added).
\101\ Id. at 590.
---------------------------------------------------------------------------
On appeal from the hearing examiner's initial decision, the
Commissioners issued a final order reversing the hearing examiner on
some of the charges.\102\ On appeal from the final order, the D.C.
Circuit considered whether Chair Dixon should have been recused due to
prejudgement concerns stemming from his speech.\103\ The court held
that Commissioners do not have ``license to prejudge cases or to make
speeches which give the appearance that the case has been prejudged.''
\104\ Statements giving the appearance that a case has been prejudged
``may have the effect of entrenching a Commissioner in a position which
he has publicly stated, making it difficult, if not impossible, for him
to reach a different conclusion in the event he deems it necessary to
do so after consideration of the record.'' \105\ The D.C. Circuit
vacated the Commission's order and remanded with instructions to
consider the case without Chair Dixon's participation.\106\
---------------------------------------------------------------------------
\102\ Id. at 584.
\103\ Id. at 584-85.
\104\ Id. at 590.
\105\ Id.
\106\ Id. at 592 (``For the reasons set forth above we vacate the
order of the Commission and remand with instructions that the
Commissioners consider the record and evidence in reviewing the initial
decision, without the participation of Commissioner Dixon.'').
---------------------------------------------------------------------------
Texaco
In Texaco, Inc. v. FTC, the FTC issued a complaint claiming that
``Texaco coerce[d] its dealers, through economic pressure, to
distribute Goodrich [tires, batteries and accessories (TBA)] and thus
unfairly and unlawfully prevent[ed] Goodrich's competitors from selling
TBA to Texaco's outlets.'' \107\ After evidentiary hearings, an initial
decision was issued by the hearing examiner.\108\ On appeal, the
Commission reversed and remanded the case back to the hearing
examiner.\109\ After remand, Paul Rand Dixon joined the Commission and
replaced the previous Chair.\110\ The hearing examiner conducted
additional hearings and a new initial decision was filed.\111\
---------------------------------------------------------------------------
\107\ 336 F.2d at 756.
\108\ Id. (``Answers by the companies placed the essential
allegations of the complaint in issue, after which evidentiary hearings
were conducted over a period of nearly three years. They were concluded
December 10, 1958. The examiner, in his initial decision issued October
23, 1959. . . .'').
\109\ Id. at 757-59.
\110\ Id. at 759 (``The order of remand of March 9, 1961, was
entered by a Commission composed of Chairman Kintner and Commissioners
Secrest, Anderson and Kern. Accompanying it was the opinion to which we
have referred, written by Chairman Kintner and concurred in by the
other three members of the Commission. Shortly thereafter-on March 21,
1961-Earl W. Kintner was replaced as Chairman by Paul Rand Dixon, who
had not been a member of the Commission theretofore.'').
\111\ Id. at 758 (``More than a year after the remand of March 9,
1961, the examiner conducted hearings from July 16 to July 19, 1962, at
which the only proof introduced was in the form of exhibits received
over the objection of the petitioners. A new initial decision was filed
by the examiner September 24, 1962.'').
---------------------------------------------------------------------------
While the case was pending before the hearing examiner on remand,
Chair Dixon delivered a speech to the National Congress of Petroleum
Retailers, Inc.\112\ In the speech, Chair Dixon stated:
---------------------------------------------------------------------------
\112\ Id. at 759 (``The basis of the motion was a speech made by
Dixon before the National Congress of Petroleum Retailers, Inc., in
Denver, Colorado, on July 25, 1961, while the case was pending before
the examiner after remand and before any steps had been taken by
him.'').

Your problems are many, and many of them are the problems of
the Federal Trade Commission, too; for the Commission is
concerned with promoting fair competition. More particularly,
many of your problems are ours because they arise from
practices prohibited by two of the most important statutes
administered by the Commission-discriminatory pricing,
prohibited by the Robinson-Patman Act, and other unfair acts,
practices, and methods of competition, prohibited by the
---------------------------------------------------------------------------
Federal Trade Commission Act.

We at the Commission are well aware of the practices which plague
you and we have challenged their legality in many important cases.
You know the practices-price fixing, price discrimination, and
overriding commissions on TBA.
You know the companies-Atlantic, Texas, Pure, Shell, Sun, Standard
of Indiana, American, Goodyear, Goodrich, and Firestone.
Some of these cases are still pending before the Commission; some
have been decided by the Commission and are in the courts on appeal.
You may be sure that the Commission will continue and, to the extent
that increased funds and efficiency permit, will increase its efforts
to promote fair competition in your industry.\113\
---------------------------------------------------------------------------
\113\ Id.
---------------------------------------------------------------------------
The speech led Texaco to file a motion that Chair Dixon be
disqualified from participating in the proceeding.\114\ Chair Dixon
declined to recuse himself and the Commissioners denied the
motion.\115\ The Commission, with Chair Dixon's participation, entered
an order adopting the hearing examiner's second initial decision.\116\
---------------------------------------------------------------------------
\114\ Id. (``On February 18, 1963, before the Commission had acted
on the examiner's new initial decision of September 24, 1962, Texaco
filed a motion that Chairman Dixon withdraw from participation in the
proceeding or that the Commission determine him to be disqualified.'').
\115\ Id. (``The Commission denied the motion that it determine
Chairman Dixon to be disqualified, and he declined to withdraw from
participation.'').
\116\ Id. (``Instead, he took part in the entry of the order of
April 15, 1963, more than two years after the remand, which adopted the
examiner's initial decision and order of September 25, 1962[.]'').
---------------------------------------------------------------------------
The speech referenced ``three business practices, seven oil
companies, and three tire manufacturers'' and ``was qualified by the
statement that `[s]ome of these cases are still pending before the
Commission; some have been decided by the Commission and are in the
courts on appeal.' ''\117\ Chair Dixon explained that he believed ``it
would be taken for granted that, insofar as [his] other remarks
suggested the actual existence and illegality of the named practices,
the references were to the already-decided cases, not to those still
pending before the agency.'' \118\ Chair Dixon believed that ``the
reference to the, other proceedings--those still pending before the
agency--was intended merely as a statement of the allegations in the
complaints, not as prejudgment of their merits.'' \119\ The D.C.
Circuit explained that ``[o]nce an adjudicator has taken a position
apparently inconsistent with an ability to judge the facts fairly,
subsequent protestations of open-mindedness on his part cannot restore
a presumption of impartiality.'' \120\
---------------------------------------------------------------------------
\117\ In re Pure Oil Company, 66 FTC 1552, 1559 (1964).
\118\ Id.
\119\ Id.
\120\ Texaco, 336 F.2d at 764 (Washington, J., concurring in part
and dissenting in part).
---------------------------------------------------------------------------
The court in Texaco found that the ``administrative hearing in the
present case was certainly as important as that'' in other cases that
required recusal.\121\ Consequently, the administrative hearing ``must
be attended, not only with every element of fairness but with the very
appearance of complete fairness. Only thus can the tribunal conducting
a quasi-adjudicatory proceeding meet the basic requirement of due
process.'' \122\
---------------------------------------------------------------------------
\121\ Id. at 760 (``We said in [Amos Treat]: `. . . An
administrative hearing of such importance and vast potential
consequences must be attended, not only with every element of fairness
but with the very appearance of complete fairness. Only thus can the
tribunal conducting a quasi-adjudicatory proceeding meet the basic
requirement of due process.' The administrative hearing in the present
case was certainly as important as that in the Amos Treat case, and has
perhaps even greater potential consequences.'').
\122\ Id. (citing Amos Treat & Co. v. SEC, 306 F.2d 260, 267 (D.C.
Cir. 1962)).
---------------------------------------------------------------------------
The D.C. Circuit held that ``a disinterested reader of Chairman
Dixon's speech could hardly fail to conclude that he had in some
measure decided in advance that Texaco had violated the Act.'' \123\
Chair Dixon's speech, ``made before the matter was submitted to the
Commission but while it was before the examiner, plainly reveals that
he had already concluded that Texaco and Goodrich were violating the
Act, and that he would protect the petroleum retailers from such
abuses.'' \124\ Chair Dixon's ``speech suggest[ed] not only a
substantial conviction'' that the petitioners violated the law, ``but
an implied promise to support the petroleum retailers in their struggle
against alleged abuses by their suppliers.'' \125\
---------------------------------------------------------------------------
\123\ Id.
\124\ Id.
\125\ Id. (Washington, J., concurring in part and dissenting in
part).
---------------------------------------------------------------------------
American Cyanamid
In American Cyanamid Company v. FTC, the FTC issued a complaint
alleging that five companies violated Section 5 of the FTC Act in
connection with the production and sale of tetracycline, a broad-
spectrum antibiotic.\126\ The hearing examiner issued his initial
decision in favor of the drug companies and dismissed the
complaint.\127\ After notice of appeal, all five drug companies filed
motions to disqualify Chair Dixon from participating in the
proceeding.\128\ The motions to disqualify:
---------------------------------------------------------------------------
\126\ American Cyanamid, 363 F.2d at 760-62.
\127\ Id. at 762 (``The hearing examiner issued his initial
decision, finding in favor of the petitioner drug companies on all
issues, and dismissed the complaint'').
\128\ Id. at 763 (``After notice of appeal to the Commission from
this decision, all five petitioners filed motions on December 13, 1961,
to disqualify Chairman Paul Rand Dixon from participating in the
proceeding.'').

were based upon the contention that Chairman Dixon, in his
former capacity as Chief Counsel and Staff Director of the
Subcommittee on Antitrust and Monopoly of the Committee on the
Judiciary of the United States Senate, played an `active role'
in an investigation by that Subcommittee of many of the same
facts and issues and of the same parties as are involved in
this proceeding, and participated in the preparation of the
report of the Subcommittee on the same facts, issues and
parties.\129\
---------------------------------------------------------------------------
\129\ Id.

The motions to disqualify were denied.\130\ On appeal, the
Commissioners reversed the hearing examiner.\131\
---------------------------------------------------------------------------
\130\ Id. (``These motions to disqualify Chairman Dixon were made
or renewed on three separate occasions prior to the Commission's final
decision. The motions were denied.'').
\131\ Id. at 762 (``On appeal, the Commission reversed, finding
that the hearing examiner had misconstrued the actions of the patent
examiner and the information which he deemed relevant to the
application. The Commission found that Pfizer made deliberately false
and misleading statements to, and withheld material information from,
the Patent Office in securing its tetracycline patent; that this
conduct amounted to `unclean hands,' `inequitableness' and `bad faith'
vis-a-vis the Patent Office; that Pfizer asserted monopoly rights under
its patent in order to prevent competition in the tetracycline market;
and that the effects of Pfizer's acts and conduct before the Patent
Office have been to restrain competition, to foreclose access to
substantial markets to competitors and potential competitors, and to
create a monopoly in the manufacture and sale of tetracycline in
violation of Section 5 of the Federal Trade Commission Act. The
Commission further found that Cyanamid made erroneous representations
to the Patent Office concerning matters bearing upon the patentability
of tetracycline; and that although Cyanamid soon discovered that these
representations were inaccurate, it did not disclose this fact to the
Patent Office until after the tetracycline patent had been granted to
Pfizer, thereby aiding the latter in its efforts to obtain a patent.
The Commission ruled that this suppression of material information,
combined with the cross-licensing agreement between Pfizer and Cyanamid
and the acceptance by the latter of a license from the former to
produce and sell tetracycline, constituted an illegal attempt to share
a monopoly with Pfizer and amounted to a combination in restraint of
trade. Similar charges against Bristol, Squibb and Upjohn were
dismissed by the Commission, although these latter three companies were
found guilty of price-fixing. On the issue of price-fixing, the
Commission decided that the record as a whole sustains the conclusion
that the five petitioners fixed and maintained the price of
tetracycline in substantial markets through conspiracy and
combination.'').
---------------------------------------------------------------------------
Paul Rand Dixon served as the Chief Counsel and Staff Director of
the subcommittee investigating ``the drug industry, including the
manufacture and sale of tetracycline.'' \132\ At the subcommittee,
soon-to-be-Chair Dixon ``played an active part in the investigation.
These hearings were concerned specifically, among other things, with
issues which were decided against petitioners by the Commission in [the
American Cyanamid case].'' \133\ Dixon questioned witnesses about
tetracycline during the subcommittee's investigation.\134\ The
subcommittee received evidence relating to petitioner's prices for
broad spectrum antibiotics, including tetracycline,\135\ and the report
included discussions of tetracycline and the conduct of the five
petitioner drug companies.\136\ ``The letter of Senator Kefauver
transmitting the report to the Chairman of the Senate Committee on
Judiciary expressed appreciation for the `efforts of Paul Rand
Dixon[.]' '' \137\
---------------------------------------------------------------------------
\132\ Id. at 765.
\133\ Id.
\134\ Id.
\135\ Id.
\136\ Id. at 766.
\137\ Id. at 767.
---------------------------------------------------------------------------
The Sixth Circuit concluded that ``the questions and comments of
Mr. Dixon'' during the investigation demonstrated that he formed
opinions that were conclusions of facts.\138\ According to the court,
these opinions were ``not merely an underlying philosophy or a
crystallized point of view on questions of law or policy.'' \139\ The
Sixth Circuit held that ``the participation of Chairman Dixon in the
hearing `amounted . . . to a denial of due process which invalidated
the order under review'' because Chair ``Dixon sat with the other
members as triers of the facts and joined in making the factual
determination upon which the order of the Commission is based. As
counsel for the Senate Subcommittee, he had investigated and developed
many of these same facts.'' \140\ The court ruled ``that
disqualification is required when, as in the present case, the
legislative committee investigation involved the same facts and issues
concerning the same parties named as respondents before the
administrative agency[.]'' \141\
---------------------------------------------------------------------------
\138\ Id. at 765 (``Some of the questions and comments of Mr. Dixon
as quoted in Appendix E demonstrate to us that he then had formed the
opinion that tetracycline prices quoted by petitioners were
artificially high and collusive and that the patent interference
settlement between Pfizer and Cyanamid involved improper aid by
Cyanamid to Pfizer in obtaining the tetracycline patent. Any opinions
so formed were conclusions as to facts, and not merely an `underlying
philosophy' or a `crystallized point of view on questions of law or
policy.' The facts to which questions were directed as set forth in
Appendix E are inseparably a part of the ultimate findings of fact of
the Commission in disagreeing with the decision of the trial examiner
in the present proceeding.'').
\139\ Id. (internal quotations omitted).
\140\ Id. at 767.
\141\ Id. at 768.
---------------------------------------------------------------------------
Due Process Requires Chair Khan's Recusal
Due process requires that the FTC's adjudicatory proceedings
maintain the ``very appearance of complete fairness.'' \142\ For the
reasons explained below, ``a disinterested observer may conclude that
[Chair Khan] has in some measure adjudged the facts as well as the
law'' \143\ regarding the Meta/Within Transaction, and the Chair must
therefore be recused from adjudicating the Meta/Within Transaction.
---------------------------------------------------------------------------
\142\ Texaco, 336 F.2d at 760.
\143\ Cinderella Career & Finishing Schools, 425 F.2d at 591.
---------------------------------------------------------------------------
Chair Khan Appears to Have Prejudged the Law and Facts
Prior to joining the FTC, Chair Khan wrote to then-FTC Chair
Ohlhausen asking the FTC ``to prohibit mergers between Facebook. .
.[and] other new and promising products and services.'' \144\ The
letter stated that Meta ``has become too big and complex for any
executive team to manage responsibly'' and that all transactions
involving Meta should be blocked until the government ``determine[s]
how to ensure that Facebook's power does not'' lead to a long list of
potential harms.\145\
---------------------------------------------------------------------------
\144\ Press Release, Open Markets Inst., Open Markets Institute
Calls on the FTC to Block All Facebook Acquisitions (Nov. 1, 2017),
https://www.openmarketsinstitute.org/publications/open-markets-
institute-calls-on-the-ftc-to-block-all-facebook-acquisitions.
\145\ Id.
---------------------------------------------------------------------------
Calling for the FTC, which Chair Khan now leads, to ban all future
Meta transactions is an express statement that Meta transactions are
illegal. Because Cinderella articulated that Commissioners cannot make
statements that ``give the appearance that the case has been
prejudged,'' \146\ Chair Khan's letter requires her to be recused from
the Meta/Within transaction. In Cinderella, Chair Dixon gave a speech
that mentioned one fact similar to a pending case and stated, ``the
Federal Trade Commission, even where it has jurisdiction, could not
protect the public as quickly.'' \147\ Chair Dixon was recused in
Cinderella despite not naming the parties, referencing only one fact
among many hypothetical examples included in the speech,\148\ and
concluding only that if the FTC has jurisdiction it would still protect
the public more quickly for newspapers to have higher advertising
standards.\149\ Chair Khan's letter goes far beyond Chair Dixon's
speech. Chair Khan names Meta and demands that all of its acquisitions
be blocked by the FTC.\150\ The Meta/Within transaction is now before
the FTC, and Chair Khan's letter ``give[s] the appearance that the case
has been prejudged.'' \151\
---------------------------------------------------------------------------
\146\ Cinderella Career & Finishing Schools, 425 F.2d at 590.
\147\ Id. at 589-90.
\148\ Id.
\149\ Id.
\150\ See Press Release, Open Markets Inst., Open Markets Institute
Calls on the FTC to Block All Facebook Acquisitions (Nov. 1, 2017),
https://www.openmarketsinstitute.org/publications/open-markets-
institute-calls-on-the-ftc-to-block-all-facebook-acquisitions.
\151\ See Cinderella Career & Finishing Schools., 425 F.2d at 590.
---------------------------------------------------------------------------
Chair Khan made another statement about blocking all Meta
acquisitions on May 15, 2018 when she stated that if Meta is
``acquiring another company, I would hope the FTC would look at that
very closely and block it.'' \152\ In Texaco, Chair Dixon's speech
listed many companies,\153\ he made clear that he was speaking about
potential cases and only suggested FTC action ``if funds and efficiency
permitted future efforts[.]'' \154\ The Texaco court did not recuse
Chair Dixon because his speech referenced the exact matter at issue,
but instead because ``a disinterested reader of Chairman Dixon's speech
could hardly fail to conclude that he had in some measure decided in
advance that Texaco had violated the Act.'' \155\ Similarly, a
disinterested observer ``could hardly fail to conclude'' that Chair
Khan has ``in some measure decided in advance'' that the Meta/Within
Transaction should be blocked by the FTC given her repeated calls for
the FTC to block all Meta transactions.
---------------------------------------------------------------------------
\152\ The Bernie Sanders Show, The Greatest Threat to Our
Democracy? (May 15, 2018) (starting at 20:29), https://www.youtube.com/
watch?v=wuCAy10hlHI.
\153\ Texaco, 336 F.2d at 759 (``You know the companies-Atlantic,
Texas, Pure, Shell, Sun, Standard of Indiana, American, Goodyear,
Goodrich, and Firestone.'').
\154\ Id. (``Some of these cases are still pending before the
Commission; some have been decided by the Commission and are in the
courts on appeal. You may be sure that the Commission will continue
and, to the extent that increased funds and efficiency permit, will
increase its efforts to promote fair competition in your industry.'
'').
\155\ Id. at 760.
---------------------------------------------------------------------------
Chair Khan connected Meta's earlier acquisition strategy, which she
deemed illegal based on her comments and writings, to virtual reality
by stating that Meta ``is now following this playbook in the virtual
reality space'' by ``using [the] same `copy-acquire-kill' strategy it
used to monopolize social networking. Key task for enforcers is to
prevent a repeat[.]'' \156\ Chair Khan's comments that Meta's past
acquisition strategy resulted in unlawful transactions, and her public
statement connecting the past strategy to virtual reality, demonstrates
that she has prejudged Meta's virtual reality acquisition strategy--and
consequently the Meta/Within Transaction--as illegal.
---------------------------------------------------------------------------
\156\ Petition for Recusal, supra note 2, at Ex. D.
---------------------------------------------------------------------------
Chair Khan's Congressional Work Requires Recusal
Chair Khan's work on the House Subcommittee's investigation into
Meta, Amazon, Apple, and Google requires that Chair Khan be
disqualified from adjudicating the Meta/Within Transaction for the same
reasons that Chair Dixon's work on the Senate Subcommittee's
investigation into the drug industry required his disqualification.
Soon-to-be-Chair Dixon ``played an active part in the investigation''
into the drug industry;\157\ soon-to-be-Chair Khan ``led the
congressional investigation into digital markets and the publication of
its final report'' \158\ and ``highly orchestrated'' the hearings with
a small group of staffers.\159\ Chair Dixon's Senate investigation was
``concerned specifically, among other things, with'' products,
companies, and practices at issue in American Cyanamid;\160\ Chair
Khan's House investigation examined Meta's acquisitions of virtual
reality game developers (including Beat Saber, one of the studios
primarily at issue in the Meta/Within transaction) \161\ and Meta's
alleged strategy of ``serial acquisitions [that] reflect the company's
interest in purchasing firms that had the potential to develop into
rivals before they could fully mature into strong competitive
threats.'' \162\ Notably, Chair Khan's work was published in a staff
report that she co-authored,\163\ whereas Chair Dixon's investigation
resulted in a Committee Report (Chair Dixon was only thanked in the
cover letter for his work).\164\ Consequently, the findings in Chair
Khan's report are even more attributable to Chair Khan than the
findings in the American Cyanamid report are attributable to Chair
Dixon.
---------------------------------------------------------------------------
\157\ American Cyanamid, 363 F.2d at 765.
\158\ Petition for Recusal, supra note 2, at Ex. C.
\159\ Birnbaum, supra note 41.
\160\ American Cyanamid, 363 F.2d at 765.
\161\ Majority Staff Report, supra note 39, at fn. 859 (citing
articles referencing Meta's acquisitions of Oculus game developers Beat
Games, Sanzaru Games, and Ready at Dawn); id. at 424 (listing
acquisition by Meta).
\162\ Id. at 150.
\163\ Petition for Recusal, supra note 2, at Ex. C.
\164\ American Cyanamid, 363 F.2d at 767.
---------------------------------------------------------------------------
The Majority Opinion argues that Chair Khan's House Subcommittee
work ``did not involve the `same facts and issues' as this case nor
fully the `same parties,' which distinguishes it from American
Cyanamid.'' \165\ But like Chair Dixon in American Cyanamid, due
process requires Chair Khan's disqualification because she
``investigated and developed many of these same facts'' at issue in the
present case.\166\ As summarized in the chart below, which compares
language in the Majority Staff Report to language in the Meta/Within
Transaction complaint by topic, the facts and issues in the Meta/Within
Transaction are the same as the facts and issues in the Majority Staff
Report:
---------------------------------------------------------------------------
\165\ Order Denying Petition for Recusal, FTC No. 221-0040 (Jan.
31, 2023) [hereinafter Majority Opinion].
\166\ American Cyanamid, 363 F.2d at 767.

The Same Facts, Issues, and Parties Appear in the Majority Staff Report and the Complaint
----------------------------------------------------------------------------------------------------------------
Topic Majority Staff Report Meta/Within Transaction Complaint
----------------------------------------------------------------------------------------------------------------
Virtual Reality Product ``[Meta] is the largest social ``Meta, one of the largest technology
Offering networking platform in the world. Its companies in the world and the leading
business operates around five primary provider of virtual reality (`VR')
product offerings, including: (5) devices and applications (`apps') in
Oculus, a virtual reality gaming the United States '' b
system.'' a
Family of Apps ``[Meta] reported that its family of ``A global technology behemoth, Meta
products--including Facebook, reaches into every corner of the world
Instagram, Messenger, and WhatsApp-- through its 'Family of Apps'--
includes 2.47 billion daily active Facebook, Instagram, Messenger, and
people (DAP), 3.14 billion monthly WhatsApp--with more than three billion
active people (MAP), '' c regular users.'' d
Oculus Acquisition ``[Meta] has also acquired several ``Meta's campaign to conquer VR began
virtual reality and hardware companies, in 2014 when it acquired Oculus VR,
such as Oculus.'' e Inc., a VR headset manufacturer.'' f
Beat Games The mergers and acquisitions appendix ``Meta controls the wildly popular app
cites to the Beat Games acquisition.g Beat Saber, which it acquired by
purchasing Beat Games in November
2019.'' h
Con``[Meta] has acquired Oculus game ``Since its acquisition of Beat Games,
Acquisitions developers'' (citing articles that note Meta has continued to acquire a series
the acquisitions of Ready at Dawn, of studios behind many popular VR apps
Sanzaru, and Beat Saber).'' i The :
mergers and acquisitions appendix cites a. In January 2020, Meta acquired
Ready at Dawn and Sanzaru Games.j Sanzaru games,
b. In May 2020, Meta acquired Ready at
Dawn Studios .'' k
Ongoing Acquisition Strategy ``As discussed earlier in this Report, ``As early as 2015, Mr. Zuckerberg
Facebook's senior executives described instructed key Facebook executives
the company's mergers and acquisitions that his vision for `the next wave of
strategy in 2014 as a `land grab' to computing' was control of apps and the
`shore up our position.' Facebook's platform on which those apps were
serial acquisitions reflect the distributed'' m
company's interest in purchasing firms
that had the potential to develop into
rivals before they could fully mature
into strong competitive threats.'' l
Roll-up Acquisitions ``Over the course of the investigation, ``In addition to Beat Games, Meta owns
the Subcommittee uncovered evidence a number of other VR apps, some of
that the antitrust agencies failed, at which it developed in-house but most
key occasions, to stop monopolists from of which it acquired by rolling up
rolling up their competitors and failed other app studios.'' o
to protect the American people from
abuses of monopoly power. Forceful
agency action is critical.'' n
Use of Data to Make Strategic ``[Meta] used its data advantage to ``Meta's control over the Quest
Decisions create superior market intelligence to platform also gives it unique access
identify nascent competitive threats to VR user data, which it uses to
and then acquire, copy, or kill these inform strategic decisions.'' q
firms.'' p
Network Effects ``Facebook's executives--including Mr. ``As Meta fully recognizes, network
Zuckerberg--have extensively discussed effects on a digital platform can
the role of network effects and tipping cause the platform to become more
points as part of the company's powerful--and its rivals weaker and
acquisition strategy and overall less able to seriously compete--as it
competitive outlook'' r gains more users, content, and
developers. The acquisition of new
users, content, and developers each
feed into one another, creating a self-
reinforcing cycle that entrenches the
company's early lead.'' s
``Meta has an explicit strategy of
harnessing strong network effects in
VR to ensure its leading status in
this growing industry.'' t
Big Tech Expansion into VR ``Meanwhile, all four of the firms ``Meta's internal codename for the
investigated by the Subcommittee have proposed acquisition of Within was
recently focused on acquiring startups 'Project Eden,' a reference to its
in the artificial intelligence and belief that Apple was also interested
virtual reality space. Ongoing in acquiring Within.'' v
acquisitions by the dominant platforms ``Seeking to expand its empire even
raise several concerns. Insofar as any further, Meta in recent years has set
transaction entrenches their existing its sights on building, and ultimately
position, or eliminates a nascent controlling, a VR `metaverse.' '' w
competitor, it strengthens their market
power and can close off market entry.''
u
----------------------------------------------------------------------------------------------------------------
Sources: (a) Majority Staff Report, supra note 39, at 132; (b) Amended Part 3 Complaint, supra note 6, at 1;
(c) Majority Staff Report, supra note 39, at 132; (d) Amended Part 3 Complaint, supra note 6, at 2; (e)
Majority Staff Report, supra note 39, at 149; (f) Amended Part 3 Complaint, supra note 6, at 3; (g) Majority
Staff Report, supra note 39, at 424; (h) Amended Part 3 Complaint, supra note 6, at 4; (i) Majority Staff
Report, supra note 39, at 149; (j) Majority Staff Report, supra note 39, at 424; (k) Amended Part 3 Complaint,
supra note 6, at 27; (l) Majority Staff Report, supra note 39, at 149-50; (m) Amended Part 3 Complaint,
supra note 6, at 7; (n) Majority Staff Report, supra note 39, at 7; (o) Amended Part 3 Complaint, supra note
6, at 4; (p) Majority Staff Report, supra note 39, at 14; (q) Amended Part 3 Complaint, supra note 6, at
62; (r) Majority Staff Report, supra note 39, at 143; (s) Amended Part 3 Complaint, supra note 6, at 6; (t)
Amended Part 3 Complaint, supra note 6, at 5; (u) Majority Staff Report, supra note 39, at 387; (v) Amended
Part 3 Complaint, supra note 6, at 79; (w) Amended Part 3 Complaint, supra note 6, at 2.

Chair Khan attempts to differentiate her situation from American
Cyanamid by stating that ``none of the examples of [her] prior
statements that Meta cites in support of its petition even involve any
of the relevant markets or products being reviewed here, let alone the
`same facts and issues.' '' \167\ The Majority Opinion similarly states
that Chair Khan's House Subcommittee work ``did not involve the `same
facts and issues' as this case nor fully the `same parties,' which
distinguishes it from American Cyanamid.'' \168\ In doing so, Chair
Khan and the Majority Opinion raise the test for recusal to a
requirement that Chair Khan had conducted the identical investigation
in her past work. But American Cyanamid requires recusal if the
investigation that Chair Khan led involved the same parties, facts, and
issues. In attempting to justify Chair Khan's role as an adjudicator in
the Part 3 process, Chair Khan and the Majority Opinion have adopted a
heightened standard for disqualification that exceeds the standard
articulated by the relevant case law.
---------------------------------------------------------------------------
\167\ September 26 Statement, supra note 24, at 4.
\168\ Majority Opinion, supra note 165, at 10.
---------------------------------------------------------------------------
Chair Khan Took an Active Part in the House Subcommittee Investigation
American Cyanamid is distinguished in Safeway Stores, Inc. v. FTC,
which again involved Chair Dixon's prior work as Chief Counsel and
Staff Director of the Antitrust and Monopoly Subcommittee of the United
States Senate.\169\ Chair Dixon was recused in American Cyanamid and
not recused in Safeway Stores, even though both situations involved
Chair Dixon's role in a Congressional investigation. In Safeway Stores,
the FTC found that baking companies engaged in a conspiracy to fix the
price of bread.\170\ On appeal, the Ninth Circuit considered
disqualifying Chair Dixon from sitting as an adjudicator because ``he
participated in a Subcommittee hearing on administered pricing in the
bread industry'' before joining the Commission.\171\ Specifically,
soon-to-be-Chair Dixon ``interrogated [the petitioner's] president, and
[the petitioner urged the Ninth Circuit to find] that his questions
suggest such a fixed view on one aspect of the present controversy that
[the Court] should overrule the Commission's determination that [Chair
Dixon] was not disqualified.'' \172\ The Ninth Circuit did ``not agree
that an attorney's personal opinion on a factual controversy may be
inferred from questions he puts in the performance of his professional
duty.'' \173\ The Ninth Circuit found that Chair Dixon ``took a much
more active part in the investigation'' at issue in American Cyanamid
than the one at issue in Safeway Stores.\174\
---------------------------------------------------------------------------
\169\ Safeway Stores, Inc. v. F.T.C., 366 F.2d 795 (9th Cir. 1966).
\170\ Id. at 796.
\171\ Id. at 801.
\172\ Id.
\173\ Id.
\174\ Id. at 802.
---------------------------------------------------------------------------
Chair Khan was praised for leading the investigation \175\ and co-
authored the Majority Staff Report that resulted from the
investigation.\176\ Further, as explained by Chair Khan's academic co-
author Zephyr Teachout, Chair Khan ``poured her `sweat and blood' into
the investigation'' and ``left her fingerprints all over the
investigation.'' \177\ According to Teachout, she ``could see [Chair
Khan's] work everywhere in the [CEO] hearing.'' \178\ Chair Khan's
involvement goes beyond Chair Dixon's involvement in American Cyanamid.
The only notable difference is that Chair Dixon questioned witnesses in
American Cyanamid. But Chair Dixon also questioned witnesses in Safeway
Stores, where he was not recused, so questioning witnesses cannot be
the operative fact in deciding whether disqualification is warranted.
---------------------------------------------------------------------------
\175\ Birnbaum, supra note 41.
\176\ Majority Staff Report, supra note 39.
\177\ Birnbaum, supra note 41.
\178\ Id.
---------------------------------------------------------------------------
Chair Khan's Academic Work Adopted Her Professional Positions
The Majority Opinion argues that ``the positions taken by Chair
Khan as an advocate on behalf of OMI should not necessarily be ascribed
to her personally[.]'' \179\ Even if one were to stipulate that there
should be an exception for advocates, a position with which I disagree,
there are reasons that Chair Khan's work as an advocate should be
considered in deciding the motion for disqualification.
---------------------------------------------------------------------------
\179\ Majority Opinion, supra note 165, at 9.
---------------------------------------------------------------------------
First, Chair Khan's academic work adopted positions advanced in her
professional role. For example, Chair Khan, in an academic article,
adopted the recommendation to create ``a presumption against future
acquisitions'' by citing the OMI op-ed that argued for prohibiting
``all future acquisitions by Facebook for at least five years.'' \180\
An OMI press release--issued while Chair Khan was legal director--
called for the FTC to ``prohibit all future acquisitions by Facebook
for at least five years.'' \181\ This demand was made by OMI on March
22, 2018.\182\ Five years will not run until March 22, 2023. A demand
made by Chair Khan's former organization while she was its Legal
Director ``may have the effect of entrenching'' the Chair ``in a
position which [she] has publicly stated, making it difficult, if not
impossible, for [her] to reach a different conclusion in the event
[she] deems it necessary to do so after consideration of the record.''
\183\ But even if it is argued that Chair Khan was an advocate and the
press release should not be attributed to her personal opinion, her
academic work adopting this position and citing the exact source
strongly implies that these views are held personally by Chair Khan.
---------------------------------------------------------------------------
\180\ Khan, Sources of Tech Platform Power, supra note 37, at 333.
\181\ Press Release, Open Markets Inst., Fines for Facebook Aren't
Enough: The Open Markets Institute Calls on FTC to Restructure Facebook
to Protect Our Democracy (Mar. 22, 2018), https://
www.openmarketsinstitute.org/publications/fines-for-facebook-arent-
enough-the-open-markets-institute-calls-on-ftc-to-restructure-facebook-
to-protect-our-democracy.
\182\ Id.
\183\ See Cinderella Career & Finishing Schools, 425 F.2d at 590.
---------------------------------------------------------------------------
Second, evidence also suggests that the Majority Staff Report co-
authored by Chair Khan can be attributed to Chair Khan's academic work.
For example, Zephyr Teachout ``point[ed] out that many of the questions
[in the CEO hearing] harkened directly back to [Chair Khan's] academic
work.'' \184\
---------------------------------------------------------------------------
\184\ Birnbaum, supra note 41.
---------------------------------------------------------------------------
Finally, as noted above, many of Chair Khan's relevant statements
are drawn directly from her academic work.\185\ These statements cannot
be attributed to OMI or the House Subcommittee. Chair Khan bears
ownership of her academic work.
---------------------------------------------------------------------------
\185\ See supra notes 52-70 and accompanying text.
---------------------------------------------------------------------------
The Timing of Chair Khan's Statements and Work Do Not Prevent Recusal
Chair Khan and the Majority Opinion both attempt to distinguish the
facts of Cinderella. Chair Khan claims that in Cinderella, Chair Dixon
``gave a speech . . . in which he used specific behavior by Cinderella
as an example of misconduct'' and that ``the court stated that it was
`the timing of the speech in relation to the proceedings' that gave a
`disinterested observer' a `reasonable inference' to view his remarks
as connected to the case.'' \186\ Chair Khan distinguishes the present
situation with Cinderella by stating that ``none of the statements that
Meta cites in support of its petition were made during the pendency of
this matter, let alone during [Chair Khan's] time serving on the
Commission.'' \187\ Similarly, the Majority Opinion states that the
``court made clear that its concern was with Chair Dixon's speaking on
`a case awaiting his official action.' '' \188\
---------------------------------------------------------------------------
\186\ September 26 Statement, supra note 24.
\187\ Id. at 4.
\188\ Majority Opinion, supra note 165, at 9. Notably, the full
quote from Cinderella is: ``To this tenet of self-appraisal we apply
Lord Macaulay's evaluation more than 100 years ago of our American
government: `It has one drawback--it is all sail and no anchor.' We
find it hard to believe that former Chairman Dixon is so indifferent to
the dictates of the Courts of Appeals that he has chosen once again to
put his personal determination of what the law requires ahead of what
the courts have time and again told him the law requires. If this is a
question of `discretion and judgment,' Commissioner Dixon has exercised
questionable discretion and very poor judgment indeed, in directing his
shafts and squibs at a case awaiting his official action. We can use
his own words in telling Commissioner Dixon that he has acted
`irrespective of the law's requirements'; we will spell out for him
once again, avoiding tired cliche and weary generalization, in no
uncertain terms, exactly what those requirements are, in the fervent
hope that this will be the last time we have to travel this wearisome
road.'' Cinderella Career & Finishing Schools, 425 F.2d at 591. This
full quote does not imply that it was ``clear that [the court's]
concern was with'' the timing of the speech as the Majority Opinion
suggests.
---------------------------------------------------------------------------
Chair Khan and the Majority Opinion mischaracterize the D.C.
Circuit's analysis regarding the importance of the timing of the
speech. Chair Dixon's speech mentioned one fact similar to a pending
case.\189\ Chair Dixon did not name the parties, referenced many
hypothetical examples, and concluded only that if the FTC had
jurisdiction it would still protect the public more quickly if
businesses had advertising standards instead of waiting for the FTC's
involvement.\190\ The D.C. Circuit used the timing of Chair Dixon's
speech (i.e., while the matter was pending at the Commission) to
conclude that the fact mentioned by Chair Dixon in the speech showed
prejudgment of the matter.\191\ In other words, the D.C. Circuit used
the timing of the speech to infer the relevance of the comment. In
Chair Khan's situation, it is unnecessary to speculate on Chair Khan's
thoughts about the Meta/Within Transaction. Chair Khan's work has
explicitly demanded that all transactions by Meta be blocked by the FTC
\192\ and concluded that Meta's acquisition strategy in the virtual
reality space is illegal.\193\
---------------------------------------------------------------------------
\189\ Cinderella Career & Finishing Schools, 425 F.2d at 589-90
(``What would be the attitude toward accepting good money for
advertising by a merchant who conducts a `going out of business' sale
every five months? What about carrying ads that offer college
educations in five weeks, fortunes by raising mushrooms in the
basement, getting rid of pimples with a magic lotion, or becoming an
airline's hostess by attending a charm school? Or, to raise the target
a bit, how many newspapers would hesitate to accept an ad promising an
unqualified guarantee for a product when the guarantee is subject to
many limitations?'' (emphasis added)).
\190\ Id. at 589-90.
\191\ Id. at fn. 10 (``In its brief the respondent has attempted to
demonstrate that Chairman Dixon's speech made reference not to the
currently pending case, but rather to two cases which had been decided
by the Commission in 1964. In light of the timing of the speech in
relation to the proceedings herein, we think the reasonable inference a
disinterested observer would give these remarks would connect them
inextricably with this case.'').
\192\ See, e.g., The Bernie Sanders Show, The Greatest Threat to
Our Democracy? (May 15, 2018) (starting at 20:29), https://
www.youtube.com/watch?v=wuCAy10hlHI.
\193\ Petition for Recusal, supra note 2, at ex. D.
---------------------------------------------------------------------------
Further, the Texaco concurrence was concerned that Chair Dixon's
statement could be seen as ``an implied promise to support the
petroleum retailers in their struggle against alleged abuses by their
suppliers.'' \194\ Similarly, Chair Khan's repeated calls for the FTC
to block all Meta transaction could be seen as an ``an implied promise
to'' take such action in the future if given the power.
---------------------------------------------------------------------------
\194\ Texaco, 336 F.2d at 764 (Washington, J., concurring in part
and dissenting in part).
---------------------------------------------------------------------------
The Majority Opinion implies that Chair Khan should not be
disqualified because the statements and work forming the basis of
recusal were made before the President nominated Chair Khan, and before
the Senate confirmed her.\195\ Chair Dixon's work at issue in American
Cyanamid, which took place prior to his becoming a Commissioner,
demonstrates that the nomination and confirmation processes do not
invalidate due process concerns.\196\ Many people with conflicts are
nominated. In their confirmation hearings, nominees routinely promise
to abide by conflicts rules and Federal ethics obligations. The
President and Senate did not, and could not, grant Chair Khan a waiver
to ignore due process and Federal ethics requirements.
---------------------------------------------------------------------------
\195\ Majority Opinion, supra note 167, at 12-13.
\196\ American Cyanamid, 363 F.2d at 765.
---------------------------------------------------------------------------
The Relevant Role is that of an Adjudicator, Not a Prosecutor
Chair Khan's September 26 Statement largely analyzes recusal in her
role as a prosecutor and relies on Judge Boasberg's decision in the
FTC's conduct case against Meta.\197\ As noted above, the Commission's
decision under Rule 4.17 is limited to Chair Khan's role as an
adjudicator.\198\ Meta was informed that the recusal petition would be
considered as a disqualification motion under Rule 4.17.\199\
Consequently, Chair Khan's involvement as a prosecutor is for Federal
courts to decide in light of the facts of the Meta/Within Transaction,
but are largely irrelevant under Rule 4.17.\200\ Judge Boasberg's
opinion did not analyze disqualification in terms of Chair Khan's role
as an adjudicator. Judge Boasberg described the role of an adjudicator
to differentiate the analysis he conducted with respect to his analysis
of prosecutorial bias.\201\ Judge Boasberg draws no conclusions about
the propriety of Chair Khan's serving in an adjudicatory function and
his analysis consequently cannot serve as a basis for Chair Khan and
the Majority Opinion's analysis.
---------------------------------------------------------------------------
\197\ September 26 Statement, supra note 24 at 1-2 (``Meta largely
recycles the same arguments rejected by the Federal district court in
Meta I. For both the reasons stated by Judge Boasberg in Meta I as well
as the additional reasons discussed below, I reject Meta's petition and
decline to recuse myself from this matter.'') (internal citation
omitted).
\198\ See supra notes 5 & 23.
\199\ Tabor, supra note 5.
\200\ It remains an outstanding question whether voting for a
complaint into administrative court is an adjudicatory or prosecutorial
function. Regardless of the answer to that question, Judge Boasberg's
opinion analyzed a complaint voted into Federal court, which is a
prosecutorial function.
\201\ Facebook, 581 F. Supp. 3d at 63 (``[Cinderella and American
Cyanamid] deal with an agency official adjudicating the merits of a
case, not authorizing the filing of one.'').
---------------------------------------------------------------------------
Meta's Other VR Transactions Do Not Show an Absence of Prejudgment
The Majority Opinion argues that Chair Khan has not prejudged
Meta's mergers in the virtual reality space because the FTC has not
challenged previous Meta mergers, including the virtual reality mergers
cited in the complaint that have been consummated while Chair Khan has
been in charge of the FTC.\202\ If Chair Khan had voted to close an
investigation or to not file a complaint in any transaction conducted
by Meta, that vote could be evidence of considering each case on its
merits. But the Majority Opinion points to nothing that indicates Chair
Khan has ever voted on a transaction involving Meta except for the
Meta/Within Transaction or any other evidence indicating that the Chair
made a considered choice not to challenge these transactions.
---------------------------------------------------------------------------
\202\ Majority Opinion, supra note 167, at 9.
---------------------------------------------------------------------------
The Majority Relies on Peripheral Case Law
The Majority Opinion relies on a selection of cases that walk on
the edge of relevance to the present analysis in an attempt to
establish that an ``irrevocably closed mind'' standard applies. The
Majority Opinion primarily relies on Southern Pacific Communications
Company v. American Telephone & Telephone Company, which states that
the test is whether the judge's mind is ``irrevocably closed'' on the
issues as they arise in the context of the specific case.\203\ But in
Southern Pacific, there was ``no claim that the District Judge was
biased in the sense of having adjudged the facts in advance of hearing
the case. . . . Rather, [the Petitioner] asserts that the District
Judge was biased only in the sense that he held firm views concerning
law and policy and decided the case on the basis of these views, thus
depriving [the Petitioner] of an impartial judgment.'' \204\ The
allegations in Southern Pacific were based on the District Judge's
personal policy views expressed in his written judgement deciding the
case.\205\ Here, the need for Chair Khan's recusal is not driven by
allegations that she has expressed policy views. The concern presently
at issue is that Chair Khan prejudged the Meta/Within Transaction. The
cases involving former Chair Dixon, which (as described above) are
analogous to Chair Khan's situation, explain that Chair Dixon's actions
are ``not merely an underlying philosophy or a crystallized point of
view on questions of law or policy.'' \206\ In other words, like Chair
Dixon, Chair Khan's work and statements are not mere views on law and
policy, as explained in detail in the sections above.
---------------------------------------------------------------------------
\203\ 740 F.2d 980, 991 (D.C. Cir. 1984).
\204\ Id.
\205\ Id. at 983 (``[I]n his Memorandum Opinion, the District Judge
strongly expressed his personal policy view that an AT & T monopoly,
and not competition, is in the public interest in the
telecommunications industry. Moreover, in drafting his extremely
lengthy Memorandum Opinion, the trial judge simply copied--word-for-
word (including even typographical errors)--most of AT & T's proposed
findings of fact and conclusions of law. Virtually every assessment of
the credibility of witnesses, finding of fact and conclusion of law is
in favor of AT & T.'').
\206\ American Cyanamid, 363 F.2d at 765 (internal quotations
omitted).
---------------------------------------------------------------------------
The Majority Opinion makes this error repeatedly, suggesting that
Chair Khan's statements are mere views regarding law and policy.\207\
To support this position, the Majority Opinion cites inapposite (and
distinguishable) case law while giving short shrift to the Chair Dixon
cases.\208\
---------------------------------------------------------------------------
\207\ Compare Majority Opinion, supra note 165, at 5-8 & 11
(discussing Chair Khan's past actions and statements as mere views
regarding law and policy) with Majority Opinion, supra note 165, at 10-
12 (attempting to distinguish the Chair Dixon cases).
\208\ See supra notes 203-207 and accompanying text discussing
Southern Pacific and infra notes 209-211 discussing Association of
National Advertisers and Cement Institute. See also Phillip v. ANR
Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir. 1991) (requesting
recusal of a trial judge during a jury trial for making a comment not
in the presence of the jury about Title VII cases).
---------------------------------------------------------------------------
The Majority Opinion also relies on Association of National
Advertisers, Inc. v. FTC for the position that adjudicators ``are free
to decide cases involving policy questions on which they previously
have expressed a view.'' \209\ But Association of National Advertisers
is specific to rulemaking because it involved an advertising
association's attempt to disqualify the FTC Chair from participating in
a rulemaking proceeding and the D.C. Circuit stated explicitly that it
``never intended the Cinderella rule to apply to a rulemaking procedure
such as the one under review.'' \210\ Finally, in FTC v. Cement
Institute, one of the issues on appeal was that the entire Commission
should disqualify itself based on Commission reports required under
Section 6 of the FTC Act and testimony in Congress.\211\ The Cement
Institute court expressed concern that ``[h]ad the entire membership of
the Commission disqualified in the proceedings against these
respondents, this complaint could not have been acted upon by the
Commission or by any other government agency.'' \212\ This concern does
not arise in Chair Khan's situation because neither a 6(b) report nor
Congressional testimony drives the need for Chair Khan's recusal and
disqualification of the entire Commission is not being considered.
---------------------------------------------------------------------------
\209\ 627 F.2d 1151, 1171 n.51 (D.C. Cir. 1979).
\210\ Id. at 1168.
\211\ 333 U.S. 683, 700 (1948).
\212\ Id. at 701.
---------------------------------------------------------------------------
Federal Ethics Requirements
Chair Khan's participation in an adjudicatory role with respect to
the Meta/Within Transaction raises Federal ethics concerns that are
separate from the due process issues explained in the Chair Paul Rand
Dixon line of cases. The Standards of Ethical Conduct for Employees of
the Executive Branch (``Standards of Conduct'') are regulations issued
by the U.S. Office of Government Ethics.\213\ The Standards of Conduct
are premised on a reasonable person standard, and explain that
``[w]hether particular circumstances create an appearance that the law
or these standards have been violated shall be determined from the
perspective of a reasonable person with knowledge of the relevant
facts.'' \214\
---------------------------------------------------------------------------
\213\ Codified in 5 C.F.R. Part 2635, as amended at 81 FR 81641
(effective January 1, 2017). In prior cases, the Commission used ``the
Federal judicial recusal standard, 18 U.S.C. Sec. 455, [as] the
relevant standard'' to consider Commissioner recusal on due process
grounds. The Commission noted that it is not necessary to ``separately
assess the impact of the Standards of Conduct'' and the judicial
recusal standard ``because the reasonable person impartiality
assessment therein mirrors what is contained in 28 U.S.C. 455(a).'' See
Intel Corp., Docket No. 9341, Opinion and Order of the Commission
Denying Motion for Disqualification (Public Version), at p. 5, n.10
(Dec. 18, 2009). Notably, the ``federal statute arguably raises the bar
higher [than the Standards of Conduct] by requiring recusal unless the
parties' consent is obtained and, unlike the Standards of Conduct,
there is no provision for authorizing one's participation in certain
circumstances.'' Id.
\214\ 5 C.F.R. Sec. Sec. 2635.101(b)(14).
---------------------------------------------------------------------------
The Standards of Conduct establish two broad areas of inquiry.
First, a government employee ``should not participate in a particular
matter involving specific parties which he knows is likely to affect
the financial interests of a member of his household, or in which he
knows a person with whom he has a covered relationship is or represents
a party, if he determines that a reasonable person with knowledge of
the relevant facts would question his impartiality in the matter.''
\215\ Second, a regulatory catch-all provision requires that ``[a]n
employee who is concerned that other circumstances would raise a
question regarding his impartiality should use the process described in
[the Standards of Conduct] to determine whether he should or should not
participate in a particular matter.'' \216\ In other words, even if not
per se prohibited by law, when an employee faces circumstances that
``would raise a question regarding his impartiality[, the employee]
should use the process described in [the Standards of Conduct] to
determine whether he should or should not participate in a particular
matter.'' \217\
---------------------------------------------------------------------------
\215\ Id. Sec. 2635.501(a).
\216\ Id.
\217\ Id. at Sec. Sec. 2635.502(a)(2).
---------------------------------------------------------------------------
The Standards of Conduct provide that ``[i]f the [FTC ethics staff]
determines that the employee's impartiality is likely to be questioned,
[the FTC ethics staff] shall then determine . . . whether the employee
should be authorized to participate in the matter.'' \218\ How this
provision is applied depends on which broad bucket of concern is in
play. First, if a financial interest or covered relationship exists,
then the FTC ethics staff determines whether ``the financial interest
of a member of the employee's household, or the role of a person with
whom he has a covered relationship, is likely to raise a question in
the mind of a reasonable person about his impartiality.'' \219\ If the
FTC ethics staff determines the situation will raise a question in the
mind of a reasonable person about his impartiality, the employee can
only participate if the employee receives authorization to participate
from the FTC ethics staff. Second, if the catch-all provision is at
issue, then the FTC ethics staff can recommend that the employee not
participate but cannot require the employee's disqualification.\220\ In
the same manner that an employee can receive authorization when there
is a financial interest or covered relationship, the FTC ethics staff
can authorize the employee to participate despite a regulato1y catch-
all concern.
---------------------------------------------------------------------------
\218\ Id. at Sec. 2635.502(c)(1).
\219\ Id. at. Sec. 2635.502(e).
\220\ +Compare id. atSec. Sec. 2635.502(e) and (c) to
Sec. Sec. 2635.50l(a) and 2635.502(a)(2).
---------------------------------------------------------------------------
The FTC ethics staff may authorize participation if the interest of
the Government in the employee's pa1ticipation outweighs the concern
that a reasonable person may question the integrity of the
proceedings.\221\ In making this determination, the FTC ethics staff
considers the following factors: ``(1) the nature of the relationship
involved; (2) the effect that resolution of the matter would have on
the financial interest of the person involved in the relationship; (3)
the nature and impo1tance of the employee's role in the matter; (4) the
sensitivity of the matter; (5) the difficulty of reassigning the matter
to another employee; and (6) adjustments that may be made in the
employee's duties that would reduce or eliminate the likelihood that a
reasonable person would question the employee's impartiality.'' \222\
---------------------------------------------------------------------------
\221\ Id. atSec. 2635.502(d).
\222\ Id.
---------------------------------------------------------------------------
Federal Ethics Concerns Require Chair Khan's Disqualification
Chair Khan promised--at her confirmation hearing and under oath--
that ``there are instances where defendants before the Commission
petition to have pa1ticular Commissioners recused, those cases are
resolved on a case-by-case basis. There's no categorical decision about
that. If it were to arise, I would seek the guidance of the relevant
ethics officials at the agency and proceed accordingly.'' \223\ Chair
Khan either: (1) did not ''seek the guidance of the relevant ethics
officials at the agency and proceed accordingly''; or (2) asked for
guidance and then ignored the recommendation. Avoiding or ignoring
unwanted guidance from the FTC ethics staff does not obviate the need
for Chair Khan's recusal as an adjudicator for the Meta/Within
Transaction. Notably the decision b Chair Khan to decline to recuse
herself is unprecedented because

---------------------------------------------------------------------------
\223\ Senator Mike Lee, Senator Lee Questions FTC Nominee Lina Khan
on Rulemaking, Antitrust Views, YouTube (April 21, 2021), https://
www.youtube.com/watch?v=PQSeqlW_3r8.
---------------------------------------------------------------------------
Meta has not alleged that the Chair has a ``covered relationship''
or that this proceeding would affect the financial interests of a
member of Chair Khan's household. Absent those express ethics concerns,
only the Standards of Conduct regulato1y catch-all provision is
relevant in the resent situation.\228\ Because this anal sis falls into
the catch-all provision
Instead it is up to Chair Khan in the first instance to determine \230\
whether there is an appearance that the law or standards will be
violated ``from the perspective of a reasonable person with knowledge
of the relevant facts.'' \231\ The standard under the Federal ethics
perspective is whether it is reasonable to conclude the employee
appears biased--the standard does not require evidence of actual
bias.\232\
---------------------------------------------------------------------------
\228\ 5 C.F.R. Sec. Sec. 2635.S0l(a) & 2635.502(a)(2). Chair Khan
also fails to analyze the Federal ethics catch-all provision and only
analyzes the financial interest and covered relationship requirement.
September 26 Statement, supra note 24, at 4-5.
\230\ 5 C.F.R. Sec. Sec. 2635.502(a)-(b).
\231\ Id. at Sec. Sec. 2635.101(b)(14).
\232\ See id. at Sec. 2635.101(b)(14); id. Sec. Sec. 2635.501 &
2635.502.
---------------------------------------------------------------------------
The facts described above with respect to Chair Khan's prior
statements and written work are also relevant here. Specifically, Chair
Khan's prior statements and written work include claims about Meta's
acquisition strategy and violation of antitrust laws, including in the
virtual reality space. Chair Khan has called for the FTC--at whose helm
she now sits--to ``prohibit mergers between [Meta] . . . [and] other
new and promising products and services.'' \233\ Chair Khan stated that
``if Facebook tomorrow announces that it's acquiring another company, I
would hope the FTC would look at that very closely and block it.''
\234\ Chair Khan's academic writings claim that Meta ``systematically
copied'' apps that ``it deemed competitive threats'' and Meta
``thwart[s] rivals and strengthen[s] its own position, either through
introducing replica products or buying out nascent competitors.'' \235\
Chair Khan accused Meta of ``following this playbook in the virtual
reality space'' by ``using [the] same `copy-acquire-kill' strategy it
used to monopolize social networking.'' \236\ Chair Khan noted that the
``[k]ey task for enforcers is to prevent a repeat[.]'' \237\ In other
words, Chair Khan called on enforcers to prevent a repeat of an
acquisition strategy she already deemed illegal and publicly
characterized as the same strategy Meta is repeating in virtual
reality.
---------------------------------------------------------------------------
\233\ Press Release, Open Markets Inst., Open Markets Institute
Calls on the FTC to Block All Facebook Acquisitions (Nov. 1, 2017),
https://www.openmarketsinstitute.org/publications/open-markets-
institute-calls-on-the-ftc-to-block-all-facebook-acquisitions. See also
Press Release, Open Markets Inst., Fines for Facebook Aren't Enough:
The Open Markets Institute Calls on FTC to Restructure Facebook to
Protect Our Democracy (Mar. 22, 2018), https://www.openmarkets
institute.org/publications/fines-for-facebook-arent-enough-the-open-
markets-institute-calls-on-ftc-to-restructure-facebook-to-protect-our-
democracy (``Open Markets [Institute] call[ed] on the FTC to . . .
prohibit all future acquisitions by Facebook for at least five
years.'').
\234\ The Bernie Sanders Show, The Greatest Threat to Our
Democracy? (May 15, 2018) (starting at 20:29), https://www.youtube.com/
watch?v=wuCAy10hlHI.
\235\ Khan, The Separation of Platforms and Commerce, supra note
54, at 1002-3.
\236\ Petition for Recusal, supra note 2, at ex. D.
\237\ Id. at ex. D.
---------------------------------------------------------------------------
Chair Khan now leads the enforcement agency that can declare this
strategy in virtual reality by Meta illegal and block Meta's future
acquisitions. If not recused, Chair Khan will sit as a judge if the
Meta/Within Transaction is appealed to the Commission. Even before
that, if not recused, Chair Khan will participate in ruling on
substantive and procedural adjudicatory issues even as the Part 3
proceeding progresses before the administrative law judge.\238\ These
circumstances would make a reasonable person with knowledge of Chair
Khan's written work and statements question her impartiality to
adjudicate the Meta/Within Transaction.
---------------------------------------------------------------------------
\238\ For example, motions to stay and motions for summary judgment
can be decided by the Commission before an initial decision by the ALJ
is ever appealed.
---------------------------------------------------------------------------
Chair Khan also led \239\ the House Subcommittee's investigation
that focused on Meta and three other companies,\240\ collected 1.3
million documents,\241\ and held seven hearings--including one with
Meta's CEO.\242\ The investigation analyzed Meta's acquisitions and
strategies across its product lines, including in the virtual reality
space.\243\ The investigation's report, co-authored by Chair Khan,
found that ``Facebook's serial acquisitions reflect the company's
interest in purchasing firms that had the potential to develop into
rivals before they could fully mature into strong competitive
threats.'' \244\ Chair Khan's leading role in the investigation that
included Meta's acquisition strategy (including in the virtual reality
space) and the investigation's conclusions (through a staff report co-
authored by Chair Khan) that Meta's strategy is illegal, would make a
reasonable person with knowledge of Chair Khan's role in the House
Subcommittee's investigation question her impartiality to sit as judge
in a Part 3 proceeding for the Meta/Within Transaction.
---------------------------------------------------------------------------
\239\ Id. at ex. C.
\240\ Majority Staff Report, supra note 39, at 6.
\241\ Id.
\242\ Id.
\243\ See supra notes 47-50 and accompanying text.
\244\ Majority Staff Report, supra note 39, at 150.
---------------------------------------------------------------------------
Chair Khan could still participate, despite ethics concerns in this
matter or any future matter, if the FTC ethics staff were to authorize
her participation \255\ using the six-factor analysis outlined
above.\256\
---------------------------------------------------------------------------
\255\ 5 C.F.R. Sec. 2635.502(d).
\256\ Id.
---------------------------------------------------------------------------
Both the Majority Opinion and the Chair rely heavily on Judge
Boasberg's opinion in the FTC's conduct case against Meta.\260\ As
discussed in the preceding section, that reliance is misplaced because
that opinion analyzed Chair Khan's role as a prosecutor, not as an
adjudicator.\261\ As noted above, the analysis under Federal ethics may
produce different determinations based on whether the role under
consideration is one of prosecutor or adjudicator. For this reason
Judge Boasberg's analysis is unavailing here.
---------------------------------------------------------------------------
\260\ September 26 Statement, supra note 24; Majority Opinion,
supra note 167, at 2, 6, 12 & 14.
\261\ Facebook, 581 F. Supp. 3d at 63.
---------------------------------------------------------------------------
Federal Ethics Related Redactions
The redactions imposed on this dissent are inconsistent with
precedent. A 1984 policy prevents individual Commissioners from
revealing predecisional advice without the consent of a majority of
participating Commissioners.\264\ Nothing in the policy prevents the
Commission from waiving any alleged deliberative process privilege for
the sake of transparency at a government agency. In at least five
instances, the Commission disclosed staff materials allegedly protected
by deliberative process privilege.\265\ In addition, the Commission has
released or quoted DAEO recusal opinions.\266\ Similarly, the FTC's
Administrative Law Judge has disclosed DAEO recusal opinions.\267\
Other agencies have also disclosed or quoted DAEO recommendations,\268\
including at least four disclosures that discussed a DAEO
recommendation under the catch-all provision.\269\
---------------------------------------------------------------------------
\264\ 140 Commission Minutes 674-675 (July 25, 1984).
\265\ See Kellogg Co., 92 F.T.C. 938, 1978 WL 206543 (Dec. 8,
1978); Ame1ican Brands, Inc., 77 F.T.C. 1623, 1970 WL 117288 (May 1,
1970); Shell Oil Co., 62 F.T.C. 1488, 1963 WL 66699 (Feb. 1, 1963); In
the Matter of Gen. Motors Co1p., 103 F.T.C. 58, 1984 WL 565314 (1984);
Press Release, Fed. Trade Comm'n, Following Federal Trade Commission
Staff Recommendation to Challenge Transaction, Two Health Care Systems
in Central Georgia Abandon Proposed Merger (March 3, 2021), https://
www.ftc.gov/news-events/news/press-releases/2021/03/following-federal-
trade-commission-staff-recommendation-challenge-transaction-two-health-
care.
\266\ Press Release, Fed. Trade Comm'n, FTC Issues Statements
Regarding Recusal Petition for Review of Proposed Acquisition of
Hellman & Friedman Capital Partners V, LP (DoubleClick, Inc.) By
Google, Inc (Dec. 14, 2007), https://www.ftc.gov/news-events/news/
press-releases/2007/12/ftc-issues-statements-regarding-recusal-
petition-review-proposed-acquisition-hellman-friedman#pjj.
\267\ Order Denying Motion to Disqualify Richard G. Parker, Esq.,
In the Matter of Intel Corp., No. 9288 (Feb. 9, 1999), https://
www.ftc.gov/sites/default/files/documents/cases/1999/02/
990209orddml.pdf.
\268\ Notice to Show Cause, District Hospital Partners, L.P., Case
05-CA-216482 (July 14, 2022); Notice to Show Cause, CVS/Pharmacy, Case
13-UC-266228 (Jan. 7, 2022); Notice to Show Cause, Marathon Petroleum
Co., Case 09-CA-162710 (Jan. 7, 2022); Notice to Show Cause, Exxon
Mobil Research & Engineering, Case 22-CA-218903 (Jan. 7, 2022);
Statement of FCC Commissioner Robe1t M. McDowell, WC Docket No. 06-74
(De. 18, 2006), https://transition.fee.gov/commissioners/mcdowell/
mcdowell_att_bellsouth_statement.pdf.
\269\ National Labor Relations Board's Ethics Recusal Repo1t at 40-
48 (Nov. 19, 2019), https://www.nlrb.gov/sites/default/files/
attachments/pages/node-6353/ethics-recusal-review-incorporating-jan-9-
2020-revisions.pdf (discussing the DAEO's reasoning in Hy-Brand);
Notice to Show Cause at 4-7, National Labor Relations Board, In the
Matter of Universal Health Services, Inc., 05-CA-230128 (July 14,
2022), https://apps.nlrb.gov/link/document.aspx/0903ld
45837flbel; Letter from Lauren McFerran to Congress (Nov. 5, 2021),
https://www.nlrb.gov/sites/default/files/attachments/pages/node-166/
mcferran-ltr-re-oversight-on-members-participation-in-seiu-lawsuit-
final-for-nov-5-002.pdf; Statement of FCC Chairman William E. Kennard
Concerning His Participating in the Personal Attack and Political
Editorial Rule Proceeding, Fed. Communications Comm'n (Sept. 18, 2000),
https://www.fcc.gov/document/statement-fcc-chairman-william-e-kennard-
concerning-his-participation.
---------------------------------------------------------------------------
* * *
``A fair trial in a fair tribunal is a basic requirement of due
process.'' \270\ ``[E]very procedure which would offer a possible
temptation to the average man as a judge . . . not to hold the balance
nice, clear, and true between the State and the accused denies the
latter due process of law.'' \271\ ``Such a stringent rule may
sometimes bar trial by judges who have no actual bias and who would do
their very best to weigh the scales of justice equally between
contending parties. But to perform its high function in the best way,
`justice must satisfy the appearance of justice.' ''\272\ Here, justice
demands that Chair Khan be recused from serving in an adjudicative role
with respect to the Meta/Within Transaction.
---------------------------------------------------------------------------
\270\ American Cyanamid, 363 F.2d 763 (quoting In re Murchison, 349
U.S. 133, 136 (1955)).
\271\ Id. (quoting Tumey v. State of Ohio, 273 U.S. 510, 532
(1927)).
\272\ Id. (quoting Offutt v. United States, 348 U.S. 11, 14
(1954)).
---------------------------------------------------------------------------
______

Response to Written Question Submitted by Hon. Tammy Duckworth to
Rebecca K. Slaughter
Topic: Infant Formula Shortage
Since the February 2022 recall of Abbott formula, many families
around the country are still feeling the impact of the infant formula
shortage. While some progress has been made, it is difficult to say
whether we have taken the necessary steps to ensure a similar crisis
does not happen again in the future. I appreciate FTC moving forward
with its investigation and issuing three Civil Investigative Demand
(CID) requests to three infant formula manufacturers.

Question. Commissioner Slaughter, can you please provide an update
on the FTC's efforts to root out potential anticompetitive behavior in
this highly concentrated marketplace so families across the country
have access to and can afford the formula they need to feed their
babies?
Answer. While I cannot comment on any nonpublic investigation, the
Commission did issue a public ruling on April 25, 2023, enforcing a
civil investigative demand against an infant formula manufacturer.
In addition, in May 2022, the Commission issued a Request for
Information to the public on the infant formula market. I am hopeful
that the Commission will be able to publish the results of this RFI in
the near future to bring additional transparency to this critically
important market.
______

Response to Written Questions Submitted by Hon. Kyrsten Sinema to
Rebecca K. Slaughter
Agency Authority/Artificial Intelligence. Both the threats and
potential benefits of artificial intelligence are far-reaching, a
phenomenon reflected in various government agencies and Congressional
committees learning and addressing these issues from their particular
vantage points. Some members have already raised concerns with the
steps taken thus far by the Federal Trade Commission (FTC) and there is
no doubt that the agency will play a significant role going forward.

Question 1. Under its current authorities--including but not
limited to enforcement actions--what role do you believe the FTC is to
play in the regulation of artificial intelligence? What roles do you
believe different parts of the FTC should play for the agency to best
address these evolving issues?
Answer. The statutes that the FTC enforces--primarily, the FTC
Act's prohibitions on unfair and deceptive acts or practices and unfair
methods of competition--were drafted broadly to apply to markets and
technologies across the economy. There is no statutory exemption in the
FTC Act or any other statute we enforce for artificial intelligence.
Accordingly, we should address artificial intelligence as we would any
new technology: by seeking to understand its use in the markets,
identifying and investigating any possible law violations as they
occur, and pursuing appropriate remedies consistent with our statutory
mandate.
Investigating and addressing these challenges will necessarily
require a collaborative effort across the agency, leveraging the
expertise of our technologists, our economists, our investigators, and
our competition and consumer protection attorneys. We also must work
closely with those outside the agency, including academics, industry,
advocates, and peer regulators domestically and internationally.

Question 2. In your view, where should Congress best concentrate
its attention to ensure that the FTC has the proper resources and
authorities to fulfill its statutory mandates for the American people
in the AI space?
Answer. Our obligation is to enforce the statutes as they exist
today; artificial intelligence is likely to impose a substantial demand
on the agency in terms of the staff hours and technological resources
necessary to properly investigate the law violations it may generate.
We are grateful for any and all resources Congress provides us to
undertake this work; it is critically important that our funding levels
keep pace with the demands on the agency.
It may be the case that addressing the challenges of AI requires
additional tools beyond what our existing statutes provide; it is for
Congress to decide whether and how to provide new authorities to the
Commission. I should note that Congress is uniquely well positioned to
act because, among other reasons, it can do so proactively. The
Commission's strongest tools, by contrast, are mostly reactive, such as
enforcement actions as well as rulemaking under section 18, which
requires that the act or practice being regulated already be prevalent
in the economy before the Commission can propose a rule.

Question 3. As Acting Chair you established a rulemaking group in
the general counsel's office intended to allow the FTC to take a
strategic and harmonized approach to rulemaking across its different
authorities and mission areas. How do you believe this and other kinds
of similar initiatives could help the FTC as AI issues evolve?
Answer. The statutory tools Congress provided to the FTC allow us
to pursue law violations through individual enforcement actions and
through rulemaking; however, we can only address in a rule conduct that
is already prohibited under the FTC Act. In the case of unfair or
deceptive acts or practices, the conduct must also be prevalent in the
market to be the topic of a proposed rule.
Rulemaking can be helpful to establish clear guidance for the
markets and facilitate compliance, especially as compared to case-by-
case enforcement. All of our rules have to be the product of an open
and participatory public record, and are subject to judicial review
once finalized. Rules can and should be amended as market conditions
evolve. These facets of rulemaking are true generally, and may be
particularly useful for technologies such as AI that are being deployed
rapidly in the markets.

Section 13(b) Authority and Congressional Action. The FTC's loss of
its 13(b) authority has certainly altered how the agency operates.

Question 4. Now that the agency has operated without the 13(b)
authority it employed for four decades prior to the Supreme Court
ruling in April 2022 could you please explain the immediate and the
downstream impacts this had on the agency and provide
Answer. The Supreme Court's ruling has been highly detrimental to
the Commission's ability to return money to consumers who were harmed
by law violations. That ability still exists in certain contexts, such
as when we can plead a consumer-protection rule violation (or a
violation of a statute such as the Restore Online Shoppers' Confidence
Act that operates as a rule). But our ability to return money to
consumers harmed by competition-law violations has vanished; for
example, the Commission had prevailed in court and secured $448 million
in monetary relief for consumers who were overcharged for the drug
Androgel as a result of AbbVie's conduct, but that judgment was wiped
out to $0 as a result of the Supreme Court's ruling. In certain cases,
the Commission can partner with a state enforcer whose office has
substantial state-law redress authority. Finally, there is a narrow
ability to seek redress under section 19 of the FTC Act for consumer-
protection violations that are fraudulent or dishonest through a second
lawsuit once a cease-and-desist order has been achieved in a first
lawsuit. This process has substantial drawbacks, including that it caps
redress at three years no matter how long the scam lasted, and it
requires the expenditure of substantially more agency resources than a
section 13(b) case would have.
In summary, the Supreme Court's ruling immediately made it much
less likely that consumers get their money back and much more likely
that scammers get to keep their ill-gotten gains. Downstream, the
agency cannot bring as many cases because each case now requires more
resources, and the cases we can bring are not as successful.

Question 5. In your view, based on the results since the ruling,
what should Congress do to address this problem and protect consumers?
Answer. I strongly encourage Congress to pass a section 13(b) fix
that empowers the Commission to seek redress for Americans who have
been harmed by violations of the laws we enforce.
______

Response to Written Questions Submitted by Hon. Raphael Warnock to
Rebecca K. Slaughter
Antitrust Enforcement. The Federal Trade Commission (FTC) plays a
critical role in antitrust enforcement across many sectors, including
in the defense industry. Unlike in other sectors, however, defense
industry contractors are often Federal government entities that derive
their revenue from taxpayer dollars. This creates a special
responsibility for the government to ensure competition in these
markets, especially considering the essential role of the defense
industrial base in our national security.

Question. How do you view the significance of enforcing antitrust
laws in ensuring fair competition, innovation, and cost-effectiveness
in defense procurement?
Answer. Ensuring that the defense industry is competitively healthy
helps protect not only taxpayer dollars but also national security. We
are vulnerable when there is monopoly in our defense supply chains:
vulnerable to bloated costs, limited innovation, and security risks
when there is a disruption to a monopoly supplier.

Question. How would you prioritize and approach this issue?
Answer. Because of the risk that defense industry consolidation
poses to national security, the Commission must be vigilant in
identifying and investigating potentially illegal mergers and
anticompetitive conduct. It is also critically important that we work
constructively with our partners at DOD to carry out our shared goal of
promoting competition.
I was especially proud of the FTC's unanimous, bipartisan vote to
challenge Lockheed's acquisition of Aerojet in 2022. This challenge was
the culmination of a thorough investigation by FTC staff in
collaboration with the Office of the Undersecretary of Defense for
Acquisition and Sustainment. The agency's complaint alleged that, if
the deal were allowed to proceed, Lockheed would use its control of
Aerojet to harm rival defense contractors and further consolidate
multiple markets critical to national security and defense. The case
would have been the agency's first litigated defense merger challenge
in decades, but the parties abandoned the transaction before it went to
trial.

Frauds and Scams. According to the FTC's Consumer Sentinel report
for 2022, Georgia had the highest per-capita rate of fraud reports in
the Nation.\1\
---------------------------------------------------------------------------
\1\ https://www.ftc.gov/system/files/ftc_gov/pdf/CSN-Data-Book-
2022.pdf at 20.

Question. How would you prioritize and approach the issue of
combatting frauds and scams?
Answer. Addressing frauds and scams is the bread and butter of the
FTC's enforcement work, as my former colleague Commissioner Phillips
has said. This is a critical part of our enforcement agenda.
However, it is not lost on me that many fraudsters are, in fact,
criminals, and they are unlikely to be effectively deterred by civil
enforcement actions. That is why I have worked to ensure that our
criminal referral program is as effective as possible and that we are
working closely with Federal and local authorities so that, when
scammers belong in jail, they are sent there. In addition, I believe we
need to continuously review and evaluate our fraud program to ensure
that we are adapting our enforcement to scams as they evolve in the
market and working hard to prevent them from succeeding in the first
place. This includes both effective deterrence and community education
efforts. Finally, I strongly support Congress's passing a fix to the
Supreme Court decision in AMG Capital, a decision that made it
substantially harder for us to return money to those who have had it
wrongfully taken in frauds and scams.

Question. What steps you believe the FTC should take to combat
frauds and scams as new technologies, including generative artificial
intelligence, may enable bad actors to create more sophisticated scams
while using fewer resources?
Answer. I was proud to support the creation of the FTC's new Office
of Technology, a central hub of technological prowess to bolster the
ability of our case teams to tackle increasingly sophisticated bad
actors. Generative AI poses serious risks in its potential ability to
supercharge scams, and our first task is to understand those risks. One
step we have taken that may prove useful in this effort is a proposed
rule that would ban the impersonation of government, businesses, or
their officers. Such impersonation scams are already a scourge on
Americans, and I worry that generative AI could make them orders of
magnitude worse. If the record supports its finalization, a rule
against impersonation that allows us to seek both civil penalties
against bad actors and redress for the consumers who are harmed could
prove a potent if partial solution.

Consumer Data Sales. Last year, the FTC brought a lawsuit against a
data broker alleging that the company acquired consumers' precise
geolocation data and then marketed it in a form that allowed both
current and prospective clients to track consumers' movements to and
from sensitive locations like places of worship and health clinics.\2\
The complaint charged that this conduct represents an unfair trade
practice, in violation of the FTC Act. Part of the FTC's consumer
protection authority is educating consumers and businesses about their
rights and responsibilities, especially in relation to the security of
their data.
---------------------------------------------------------------------------
\2\ https://www.ftc.gov/legal-library/browse/cases-proceedings/ftc-
v-kochava-inc.

Question. What steps can the FTC take within its statutory
authority to protect and educate consumers about the sale of precise
geolocation data?
Answer. Through its 6(b) authority, the FTC can conduct industry
studies and publish results to educate the public about the practices
of data brokers, as it did with an important report in 2014. But nearly
a decade later, the data broker business has only grown, as has the
threat to the privacy and security of every American.
Consumer education is a critically important part of the FTC's
work, and I share the view that most Americans would be horrified to
know just how much personal data about them is collected and sold by
data brokers.
Education is not likely to solve this problem, however, because the
reality is that, in today's economy, Americans are forced to give up
troves of data to participate in society, and they have little control
about what happens to that data once they have relinquished it.
That is why we must bring appropriate enforcement action and
consider rulemaking proceedings to address unfair or deceptive uses of
data.

Question. What can Congress do to better inform consumers about the
business-to-business sale of their data?
Answer. I support efforts to bring not only transparency but also
substantive guardrails to this industry. A national privacy law is a
great place to start.

Question. What can the FTC do to minimize the consumer geolocation
data that is available to businesses to be shared and sold?
Answer. In addition to consumer education, the FTC must bring
appropriate enforcement action and consider rulemaking proceedings to
address unfair or deceptive uses of data.

Civil Rights and Privacy. In August 2021, a coalition of civil
rights organizations sent a letter to the FTC urging the Commission to
establish an Office of Civil Rights in light of the need for the FTC to
protect ``protect civil rights and privacy in data-driven commerce.''
\3\
---------------------------------------------------------------------------
\3\ https://www.lawyerscommittee.org/wp-content/uploads/2021/08/
FTC-civil-rights-and-privacy-letter-Final-1.pdf.

Question. Do you believe the FTC should establish an Office of
Civil Rights?
Answer. I believe that the FTC has an obligation to ensure that all
Americans get the equal protection of the laws we enforce. That
necessarily involves transparency into which communities are affected
by the illegal practices we investigate. I am less focused on the
structure of that work, but I believe the substance is very important.

Question. Do you believe existing authorities are sufficient for
the FTC to address automated decision-making and their potential to
reproduce patterns of discrimination?\4\ What additional authorities
could assist the FTC in conducting or expanding its work in this space?
---------------------------------------------------------------------------
\4\ See, e.g., https://www.ftc.gov/business-guidance/blog/2020/04/
using-artificial-intelligence-and-algorithms.
---------------------------------------------------------------------------
Answer. I am committed to using the tools we have to address
problems in the markets, including with new technologies, and also to
respecting the limits of those tools. The application of automated
decision-making and artificial intelligence tools has the potential to
cause substantial injury to Americans in ways that reproduce patterns
of discrimination. The FTC can address these practices only if they
violate the FTC Act or other statutes we enforce, such as the Equal
Credit Opportunity Act. Congress may determine that some of these
market practices require specific prohibitions because they do not
constitute violations of the FTC Act as it exists today. I welcome the
opportunity to continue to discuss with members of the Committee
whether particular patterns of behavior in the market are outside the
scope of the laws we enforce and would require additional action from
Congress.

Question. Do you believe that commercial adoption of robust data
minimization standards can help protect consumers' civil rights and
privacy? If so, what steps should Congress or the FTC take to encourage
such adoption?
Answer. Yes. I believe that data minimization is an important,
longstanding principle that protects both security and privacy and that
is more effective than the outdated notice-and-choice model. The FTC
has been implementing data minimization provisions in its data security
and privacy orders, consistent with our statutory mandate, and will
continue to do so. I welcome any attention from Congress on this
important and fundamental data security principle.
______

Response to Written Questions Submitted by Hon. Ted Cruz to
Rebecca K. Slaughter
Bipartisanship at the FTC
For many years, the FTC was known for its bipartisan collegiality
and collaboration on key issues. I am disappointed that is no longer
the case. When we met in my office, we discussed this matter at length
and my concerns with the recent direction of the agency.
You spoke quite fondly of working with former Commissioners
Phillips and Wilson as well former Chairman Simons--all of whom were
Republican commissioners. You even noted that being challenged by
differing viewpoints benefitted your work as a commissioner.

Question 1. Do you agree that the FTC is at its best when it
operates at full capacity and that, as a commissioner, you benefit from
the perspective of minority commissioners even when you disagree?
Answer. Yes, absolutely.
Redaction of FTC Staff Advice
During the hearing we discussed my serious concerns that you and
Commissioner Bedoya voted to redact Commissioner Christine Wilson's
dissent in order to hide the fact that Chairwoman Khan did not follow
the advice of the Designated Agency Ethics Official (DAEO) to recuse
herself from a matter before the Commission.

Question 2. You cited a 1984 Commission precedent put in place by
former Chairman Jim Miller. Please provide the Committee with a copy of
the 1984 Commission meeting minutes from when that precedent was put in
place.
Answer. See attached.
Federal Employee Viewpoint Survey
Until recently, the FTC had a reputation as one of the best Federal
agencies to work for. But that reputation has taken a major hit under
Chairwoman Khan.
The annual Federal Employee Viewpoint Surveys tell us that there is
something seriously wrong. In 2020, 87 percent of surveyed employees
said they believed that the agency's leaders had ``high standards of
honesty and integrity.'' In the 2022 survey, less than half of
employees shared that belief. The FTC has slipped from its place as the
second-best midsize agency to work for in 2019 to the bottom of the
list.
I wrote Chairwoman Khan a letter about this earlier this year. In
response to my concerns about whether any action has been taken to
improve staff morale, she said that since the 2022 survey was
administered, her office has been ``creating opportunities for
continued dialogue about priorities, action steps and progress.'' I was
disappointed that Chairwoman Khan did not identify any concrete actions
taken by her office to address the recent survey results.

Question 3. As someone who served on the commission when the FTC
was one of the top-rated Federal agencies, why do you think the morale
of FTC staff sunk so low so quickly? Please be specific.
Answer. As discussed below, I have solicited input from staff
throughout the agency to better understand changes in the FEVS results.
Although our staff's views are not monolithic, I heard several
consistent themes. These have included: communication of priorities and
expectations; the events policy that limited the ability of staff to
participate in public events (now rescinded); the intensity of the
workload given limited resources; and frustration about being stuck in
the middle of public disputes between Commissioners.

Question 4. What specific actions have you taken to increase the
staff's view of FTC leadership and overall satisfaction with the
agency?
Answer. The first step I took was to meet directly with staff,
division by division, throughout the agency, to ask them what factors
they believe were behind the survey results. This is a continuation of
a practice I began when I got to the agency of setting up regular
check-ins with all our staff to ensure that they have an opportunity to
share their views with me and have their questions answered by me,
outside of the context of any specific matter. I routinely share the
feedback I receive, as well as concrete suggestions, with the Chair's
office and the Office of the Executive Director. I have also endeavored
to communicate directly with case teams as early as possible to learn
about their investigations, share my perspectives, and highlight
questions or priorities I am likely to have as the case develops. In
addition, I have worked hard to resolve disagreements with fellow
Commissioners, articulate our differences respectfully when they cannot
be resolved, and in all cases to keep staff out of disagreements
between Commissioners.
It is important to note that diagnosing a problem correctly is only
a first step; we must then apply solutions and continue to evaluate
whether those solutions are working effectively or need to be modified.
Remote Work by FTC Employees
In the hearing we discussed my concerns about the number of FTC
employees working remotely.

Question 5. For each workday since September 25, 2021, how many FTC
employees have entered FTC headquarters? As an alternative to listing
out each day, you may provide a spreadsheet with badge entry logs for
each workday with unique but anonymized identifiers, such as employee
or badge ID numbers.
Answer. Matters of Commission administration, including ID badge
information, are within the purview of the Chair's office; I have
passed this question along to them.
I would, however, like to emphasize that, for more than five years
now, I have observed first-hand the FTC's hard-working staff showing up
to work on behalf of the American public each and every day, from
Seattle to Atlanta and here in D.C., with enthusiasm and dedication. I
care very much that they show up; where they do so is not particularly
important to me as long as the work is getting done well. And that is
undoubtedly happening. Some of the Commission's work is inherently
location-inflexible, such as for trial teams in a courtroom or
investigators who need to use special technology, but I know that many
staff greatly appreciate being able to do location-flexible work from
locations other than the office, consistent with OPM guidance and the
Telework Promotion Act.

Question 6. Since September 25, 2021, how many days have you been
physically in the office at FTC headquarters (by number of times you
badged in for the period)?
Answer. Since the FTC's Evacuation Order was lifted in February
2022, I have worked from the headquarters office approximately two days
per week on average, not including when I have been traveling or when
my work requires my presence at non-FTC locations. All of my schedules
are available to the public, and I have attached them here for your
convenience.
______

Response to Written Questions Submitted by Hon. Jerry Moran to
Rebecca K. Slaughter
1. Data Privacy: FTC Acting Without Congress
Last year, the U.S. Supreme Court in West Virginia v. EPA
reaffirmed the principle that Federal agencies must operate within
their statutory boundaries, emphasizing the need for a clear grant of
authority under the ``major questions doctrine'' for rulemaking. Since
that decision was issued, the FTC has pursued rulemaking on a number of
issues, including data privacy.

How should the FTC apply the West Virginia v. EPA decision when
considering rulemaking projects? Can significant rulemaking projects be
undertaken, even if the FTC has no clear grant of authority from
Congress to pursue the rulemaking?
Answer. The FTC must apply all relevant precedent, including West
Virginia v. EPA, when considering or pursuing rulemakings (or, for that
matter, other agency actions). The West Virginia decision says, in
plain English, that agencies cannot creatively infer grants of
authority over major political or economic questions--such grants of
authority must be clear.
Congress, in passing section 5 of the FTC Act, 15 U.S.C. 45,
explicitly gave the FTC a broad mandate to stamp out ``unfair methods
of competition'' and (later, in 1938) also ``unfair or deceptive acts
or practices.'' To carry out that mandate, Congress gave the Commission
powerful tools, including a variety of investigation and enforcement
mechanisms, the potent study power of section 6(b), 15 U.S.C. 46(b),
and the power ``to make rules and regulations'' to further the Act's
purposes in section 6(g), 15 U.S.C. 46(g). I find the authority ``to
make rules and regulations'' in section 6(g) quite clear. In addition
to this original general grant of rulemaking authority, a specific
rulemaking directive to address unfair and deceptive acts and practices
was added by Congress when it enacted section 18 of the FTC Act in
1975. This provision empowers the FTC to promulgate trade regulation
rules to prescribe ``rules which define with specificity acts or
practices which are unfair or deceptive acts or practices in or
affecting commerce,'' 15 U.S.C. 57a(a)(1)(b), provided that those acts
or practices are ``prevalent'' in the market, 15 U.S.C. 57a(b)(3).
Congress has also, in section 22 of the FTC Act, required all FTC
rulemaking, whether under section 6(g) or section 18, to adhere to
requirements beyond those of the Administrative Procedure Act, such as
conducting preliminary and final regulatory analyses that describe
reasonable alternatives considered and estimate the costs and benefits
of the agency's proposal as well as the costs and benefits of the
alternatives. 15 U.S.C. 57b-3.
The rulemaking authority set forth in section 18 is the basis of
many long-standing and valuable Commission consumer protection rules
that are not explicitly directed by statute, including the Funeral
Rule, 16 C.F.R. pt. 432, the Eyeglass Rule, 16 C.F.R. pt. 456, the
Negative Option Rule, 16 C.F.R. pt. 425, and the Business Opportunity
Rule, 16 C.F.R. pt. 437, to name just a few.
Of course, any rule the Commission promulgates is subject to
judicial review.
Data Privacy: Preemption of State Laws
Do you believe a Federal comprehensive data privacy law should
preempt state laws? Why or why not?
Answer. I strongly support a Federal data privacy law. I understand
that any law that Congress enacts is likely to be the result of a
carefully crafted compromise, and I believe it is the prerogative of
Congress to determine the elements of that compromise. As a general
matter, I am sympathetic to the notion that it is at best challenging
and at worst impossible for businesses to comply in good faith with a
patchwork of different and potentially contradictory state laws.
Statutory preemption provisions can be crafted narrowly to invalidate
only state laws that present an actual conflict with Federal law or
they can be crafted more broadly. I would be very concerned about a
weak Federal law that broadly preempts state laws.
2. FTC ``Zombie'' Votes
Last November, Politico reported that Commissioner Chopra submitted
as many as 20 votes on his last day at the FTC that, thanks to the FTC
voting rules, would allow those votes to be used for Commission
business for up to 60 days.
Allowing Commissioners' votes to count after they depart their post
seems counter to common sense and good governance principles. This is
why I introduced the FTC Integrity Act, which would ensure this
practice would not continue. An amendment version of this bill received
unanimous support in this Committee last Congress.

Regardless of whether Commissioner Chopra's votes comported with
the Commission's rules at the time, do you believe that Commissioners
should be able to vote after leaving the FTC?
Answer. No Commissioner can or should be able to cast a vote after
leaving the Commission.
3. Staff Morale at the FTC
An April 2023 study found that staff morale at the FTC has
decreased dramatically since 2020, when the Commission was the highest-
ranking Federal agency in terms of employee satisfaction. Particularly
concerning are scores pertaining to FTC employee satisfaction with
Commission leadership, which fell from 84.3 in 2020 to 46.6 in 2022.

In general, what factors contribute to high employee satisfaction?
How can organization leaders impact the morale of staff?

In your experience, why has employee satisfaction with FTC
leadership fallen at such an alarming rate since 2020? What have you
done to rectify this situation?
Answer. The career staff of the FTC are our agency's greatest
asset. They are brilliant, dedicated, hardworking, professional civil
servants. They do extraordinary work, often under challenging
circumstances, and they are entitled to respect and appreciation for
that work.
I was very disturbed by the results of the FEVS survey, and I met
directly with staff, division by division, throughout the agency to ask
them what factors they believed contributed to the survey results. This
is a continuation of a practice I began when I got to the agency of
setting up regular check-ins with the staff to ensure that they have an
opportunity to share their views with me and have their questions
answered by me, outside of the context of any specific matter. I
routinely share the feedback I receive, as well as concrete
suggestions, with the Chair's office and the Office of the Executive
Director.
Although our staff's views are not monolithic, I heard several
consistent themes. These have included: communication of priorities and
expectations on particular cases; the events policy that limited the
ability of staff to participate in public events (since rescinded); the
intensity of the workload given limited resources; and frustration
about being stuck in the middle of public disputes between
Commissioners.
It is important to note that diagnosing a problem correctly is only
a first step; we must then apply solutions and continue to evaluate
whether those solutions are working effectively or need to be modified.
4. Motor Vehicle Dealers Trade Regulation Rule
Last summer, the FTC noticed the Motor Vehicle Dealers Trade
Regulation Rule, which would add requirements for dealerships to follow
and change the way Americans purchase vehicles. I understand the FTC
did not pursue an Advanced Notice of Proposed Rulemaking in this case,
which would have given stakeholders an additional opportunity to
provide the FTC information on the car buying process.

Generally speaking, do you believe the FTC should pursue all
available information-gathering avenues and conduct thorough cost-
benefit analyses before acting to implement a significant rule, like
the Motor Vehicle Dealers Rule?
Answer. One of my favorite parts about rulemaking is the robust
public records that our proceedings can develop. I regularly encourage
members of the public, businesses and business associations, consumer
groups, Members of Congress, state attorneys general, academics, and
others to participate in our rulemakings. I agree with you that the
Motor Vehicle Dealers Rule is a significant rule, and I am grateful
that an extremely robust comment record was generated in response to
the Commission's notice of proposed rulemaking, including from ordinary
car consumers, dealers' associations, individual dealers, advocates,
and others.
(More than eleven thousand of these comments are posted on the
rulemaking docket here: https://www.regulations.gov/docket/FTC-2022-
0046.)
It is true that the Commission proposed this rule without first
conducting an advance notice of proposed rulemaking. As you know, for
some rules, including rules we issue under section 18 of the FTC Act
such as the Funeral Rule, Eyeglass Rule, and Business Opportunity Rule,
an advance notice of proposed rulemaking is required by statute. For
other rules, such as the Children's Online Privacy Protection Act Rule,
the Telemarketing Sales Rule, and the Made in USA Rule, no ANPR is
required, and the Commission may proceed with an NPRM (the process most
agencies use under the Administrative Procedure Act) to issue or amend
the rule. In the case of the Motor Vehicle Dealers Rule, Congress
authorized the FTC to issue such a rule using the ordinary process of
the Administrative Procedure Act.
Your question also asked whether I believe that the Commission
should conduct thorough cost-benefit analysis before acting to
implement (or propose, in this case) a significant rule. The answer is
yes, I do believe that the Commission should conduct thorough cost-
benefit analysis. Such an analysis is also required, for most new or
major rules, by section 22 of the FTC Act. I am grateful to the
tremendous staff of the FTC's Bureau of Economics for their nuanced and
thorough exploration of the costs and benefits of the proposed rule and
its reasonable alternatives, which features prominently in the notice
of proposed rulemaking. See 87 Fed. Reg. 42012, 42031-44 (July 13,
2022). The notice also specifically asked about this analysis and
requested additional data, views, or arguments about costs and
benefits. I am committed to carefully considering the record on the
NPRM. Of course, any rule the Commission finalizes will be subject to
judicial review.
______

Response to Written Questions Submitted by Hon. Dan Sullivan to
Rebecca K. Slaughter
Question 1. During the hearing, when asked where the Federal Trade
Commission (FTC) derives its power, you answered, ``From the statutes
that Congress has passed.''
Since being sworn in as a Federal Trade Commissioner in 2018,
you've been very vocal in arguing that antitrust enforcement should not
be ``race-blind'' and ``value-neutral.'' For example, at a 2021 panel
for the Economic Security Project, titled ``Centering Anti-racism in
the Antimonopoly Fight, you stated, ``I think it's time to start
talking about utilizing antitrust as an anti-racist tool.'' \1\ Later
that year, during an interview with CPI, you declared that ``antitrust
can and should be deployed in the fight against racism,'' and went on
to say that the FTC needs to ``think strategically about using
antitrust as a tool for combatting structural racism.'' \2\
---------------------------------------------------------------------------
\1\ https://economicsecurityproject.org/resource/centering-anti-
racism-in-the-anti-monopoly-fight/
\2\ https://www.competitionpolicyinternational.com/cpi-talks-with-
rebecca-kelly-slaughter/
---------------------------------------------------------------------------
More recently, you've argued that the FTC should prioritize cases
that ``disproportionately affect already marginalized communities and
populations'' \3\ in an effort to ``equalize our society more
effectively.'' \4\
---------------------------------------------------------------------------
\3\ https://www.youtube.com/watch?v=l2LY0XBQPLk
\4\ https://www.protocol.com/the-first-100-days-tech-in-the-biden-
administration

Can you cite to the statutory authority that authorizes the FTC to
use antitrust laws as ``anti-racist tools'' in order to ``equalize our
society more effectively?''
Answer. The FTC enforces the laws that Congress passes; primarily
this involves bans on unfair or deceptive acts or practices as well as
unfair methods of competition. It also includes additional statutes
such as the Equal Credit Opportunity Act.
There are many more violations of the laws that we enforce than we
have time or resources to pursue, so one of the hardest parts of our
job is making difficult decisions about what cases to pursue and how to
prioritize them.
I believe our priority should be ensuring that all Americans have
the equal protection of the laws we enforce. Unfortunately, experience
has taught us that if we are not deliberate about ensuring that our
cases protect all Americans, some communities may be unintentionally
excluded from our enforcement efforts. One reason for this is that some
communities are more aware of the laws the FTC enforces and more likely
to file complaints with us (or hire lawyers to do so). That is why, on
the consumer protection side of our agency, we have for decades counted
on our Every Community Initiative, which recognizes that we need to be
proactive in ensuring everyone--not only people of color but also
seniors, veterans, kids, non-English speakers, rural Americans--gets
our attention.
We have not brought this same attention to our competition work,
which I think is problematic. Without transparency into which
communities are affected by the cases we pursue, we could inadvertently
end up excluding significant portions of the American public from our
enforcement efforts.
For example, imagine we had to decide which of two hospital mergers
our limited resources would allow us to investigate at one time; we
could make that decision based purely on the dollar value of the
transaction or initial estimates of harm, but that would likely mean we
prioritize enforcement in wealthy urban or suburban areas at the
expense of rural areas where communities can least afford a marginal
dollar increase in healthcare cost or least tolerate the closure of a
facility.
You ask about specific statutory authority to prioritize matters
that are not spelled out explicitly in our antitrust laws. One of the
features of the FTC Act is that it is a broad statute that allows us to
address market problems as they evolve and throughout the economy. That
requires us to apply broad and general statutory language to a range of
specific issues and priorities. A small sampling of language that does
not appear in the statutes we enforce but has been key to the
Commission's efforts over the last century include: healthcare,
occupational licensing, pharmaceuticals, consumer welfare, data
security, hypothetical monopolist. As market practices and conditions
evolve, we should continue to adapt our priorities with the goal of
ensuring all Americans are protected by the laws we enforce.
______

ATTACHMENTS

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______

Response to Written Questions Submitted by Hon. Maria Cantwell to
Andrew N. Ferguson
The State of Virginia joined an amicus brief in Illumina, Inc. and
Grail, Inc., No. 23-60167 (5th Cir.), in which the amici states argued,
among other points, that (1) Congress's delegation of authority to the
Federal Trade Commission (``FTC'') to ``pick its forum as between its
own administrative law judge and an Article III court[]'' is
unconstitutional, and (2) the FTC's structure is unconstitutional
because FTC commissioners cannot be removed by the President except for
cause.

Question 1. Setting aside your participation in the amicus brief,
do you believe the FTC's structure is unconstitutional? If yes, why?
Answer. If confirmed as an FTC Commissioner, I will abide by
binding Supreme Court precedent. The Supreme Court has held that the
FTC's removal provisions are consistent with Article II of the
Constitution. See Humphrey's Executor v. United States, 295 U.S. 602
(1935). Although subsequent decisions have drawn Humphrey's Executor
into question, see, e.g., Collins v. Yellen, 141 S. Ct. 1761 (2021);
Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183
(2020), the Supreme Court has instructed time and again that `` `it is
[the Supreme] Court's prerogative alone to overrule one of its
precedents,' '' Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (quoting United
States v. Hatter, 532 U.S. 557, 567 (2001)). The Supreme Court's
``decisions remain binding precedent until [it] see[s] fit to
reconsider them, regardless of whether subsequent cases have raised
doubts about their continuing validity.'' Hohn v. United States, 524
U.S. 236, 252-53 (1998).
I note that although the Commonwealth of Virginia joined the amicus
brief in Illumina, Inc. & Grail, Inc. v. FTC, No. 23-60167 (5th Cir.),
I was recused from participating in the Attorney General's decision in
that case.

Question 2. Setting aside your participation in the amicus brief,
do you believe the FTC's authority to choose to bring an action before
its own administrative law judge or an Article III court is an
unconstitutional delegation of authority? If yes, why?
Answer. If confirmed as an FTC Commissioner, I will abide by
binding Supreme Court precedent. The Supreme Court is currently
considering whether a similar grant of authority to the SEC violates
the nondelegation doctrine. See Securities Exchange Commission v.
Jarkesy, No. 22-859 (U.S.). The Court's decision in that case could
affect the scope of the FTC's Part 3 authority. In any event, the
Supreme Court has ``stated that `adjudication of the constitutionality
of congressional enactments has generally been thought beyond the
jurisdiction of administrative agencies.' '' Elgin v. Department of
Treasury, 567 U.S. 1, 16 (2012) (quoting Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 215 (1994)); see also Axon Enterprise, Inc. v.
Federal Trade Commission, 598 U.S. 175, 190 n.2 (2023) (holding Federal
courts have jurisdiction to consider constitutional challenges to the
structure of the FTC even prior to the conclusion of agency
proceedings).

Question 3. Please list each and every action taken by the FTC
within the past 5 years that you believe was unconstitutional, in whole
or in part.
Answer. If confirmed as an FTC Commissioner, I will abide by
binding Supreme Court precedent. I am not aware of any Supreme Court
opinions, or indeed any judicial opinions, in the last five years
declaring an FTC action unconstitutional.
As Americans become more and more reliant on technology, privacy
and data security couldn't be more important. In 2020, the FTC entered
into a record $5 billion settlement with Facebook for its privacy
violations. This past May, the FTC alleged that Meta violated the 2020
settlement, a big sign that the FTC's $5 billion fine was just a slap
on the wrist. Companies often treat FTC fines as a cost of doing
business. Plainly, government enforcement alone is not enough to
protect consumer privacy.

Question 4. Do you agree that Congress should pass a privacy law
that gives individuals a private right of action they can enforce in
court when they have been seriously harmed by privacy violations? If
no, why not?
Answer. I support Congress enacting comprehensive data-privacy
legislation. In the absence of Congressional legislation, the states,
including Virginia, have passed data privacy legislation. That is
consistent with our federalist structure. But the nature of data
privacy on the Internet is inherently a question of interstate commerce
that the Constitution gives Congress the power to regulate.
The question whether to include a private right of action in a
Federal privacy law involves balancing a wide range of important policy
considerations and is difficult to answer in the abstract. The answer
would turn on considerations like the persons to whom the right would
be extended; the courts to which jurisdiction to hear such claims would
be granted; the definition of the elements of the cause of action; the
scope and type of available remedies; the defenses available to
defendants; and the extent of the resources that Congress would make
available to the States and the Federal government to enforce the law
apart from a private cause of action. Weighing these considerations is
a task that the Constitution commits uniquely to Congress. If I were
confirmed, and if Congress sought the views of the FTC on this
question, I would solicit the input of the Commission's career experts
and my fellow Commissioners to advise Congress appropriately.
Consumers are paying prices for gasoline and diesel that are way
too high. West Coast Consumers are paying well over a dollar per
gallon, sometimes two dollars per gallon, more than consumers in other
parts of the country. Congress gave the FTC anti-manipulation authority
in 2007, but we have yet to see the agency use it to protect consumers
from manipulative market practices.

Question 5. Will you support the FTC's use of its current authority
to investigate and bring enforcement actions relating to manipulation
in the transportation fuel market? If no, why?
Answer. Yes, where such an investigation and enforcement action is
consistent with the FTC's statutory authority.

Question 6. Do you support giving the FTC more resources and
authority to fight market manipulation that is causing Americans to pay
more at the pump?
Answer. If I were confirmed, I would consult the FTC's career
experts and my fellow Commissioners to determine whether additional
resources or authority are needed to fulfill the FTC's mandate to
protect against manipulation in the petroleum markets.
Since 2014, prescription drug prices have increased 35 percent,
outpacing increases in wages, gas, Internet service, and food. Evidence
suggests that pharmacy benefit manager (``PBM'') practices are part of
the high drug costs.

Question 7. Would you support the FTC using its Section 5 authority
over unfair or deceptive practices to investigate or bring enforcement
action against PBMs? Why or why not?
Answer. Yes. If consistent with the authority conferred by Congress
on the FTC, I would support using the FTC's Section 5 authority to
bring enforcement actions against pharmacy benefit managers that are
engaging in unfair methods of competition, or in unfair or deceptive
acts or practices.

Question 8. Do you believe the FTC's authority to use its Section 5
authority to investigate or bring enforcement actions against PBMs is
tied to the outcome of its current Section 6(b) study of PBMs? Why or
why not?
Answer. The FTC's authority to enforce Section 5 does not turn on
the results of studies commissioned pursuant to Section 6(b). Although
I believe the FTC's ongoing 6(b) study is important and could be a very
helpful aid to future agency action, nothing in Section 5 requires a
Section 6(b) study before initiating enforcement proceedings.
You are a member of the Teneo Network, a network with plans to
``crush liberal dominance'' and a website ``crafted so as not to pique
the interest of Senate staffers who might look up the group if one of
its members mentions Teneo during a
confirmation process for a judgeship or a cabinet position'' according
to ProPublica reporting (see https://www.propublica.org/article/
leonard-leo-teneo-videos-documents).

Question 9. How will your affiliation with this organization impact
your ability to make independent decisions as a FTC Commissioner?
Answer. It will not.

Question 10. Will you defer to the principles, beliefs, or agenda
of the Teneo Network, or any other organization to which you belong,
when making decisions as a FTC Commissioner?
Answer. I will not.

Question 11. What would the founders, leadership, or members of the
Teneo Network want to keep from the Senate or Senate staffers during a
confirmation process?
Answer. The language quoted above appears to be a reporter's
paraphrasing of someone else's statement. I have no idea what it means.
I can speak only for myself. I have provided and will continue to
provide to the Senate the information it requires to consider my
nomination.
You were an adjunct law professor at the Antonin Scalia School of
Law at George Mason University in 2019 and 2021, which is the same law
school where former FTC Commissioner Joshua Wright, who was recently
accused by multiple women of sexual misconduct, worked until Summer of
2023 when he resigned. His alleged behavior was purportedly an ``open
secret'' at the law school.

Question 12. Did you have any conversations with Mr. Wright about
becoming an FTC Commissioner prior to your nomination? After?
Answer. Before my nomination, I occasionally discussed antitrust
issues with Mr. Wright but do not recall any conversations about my
becoming a Commissioner. After my nomination, we had limited
communications about the nomination. I spoke with other former
Commissioners about my nomination as well.

Question 13. If confirmed, will you commit to ensuring that the FTC
is a workplace free of sexual misconduct.
Answer. I commit without reservation to doing everything I can to
keep the FTC free of sexual misconduct, if confirmed.
______

Response to Written Questions Submitted by Hon. Tammy Duckworth to
Andrew N. Ferguson
Topic: Infant Formula Shortage
Since the February 2022 recall of Abbott formula, many families
around the country are still feeling the impact of the infant formula
shortage. While some progress has been made, it is difficult to say
whether we have taken the necessary steps to ensure a similar crisis
does not happen again in the future. I appreciate FTC moving forward
with its investigation and issuing three Civil Investigative Demand
(CID) requests to three infant formula manufacturers.

Question 1. Mr. Ferguson, do you support the Federal Trade
Commission's work in this area? If not how would you recommend we
ensure the infant formula industry promotes effective competition and
more resilient supply chains remains is a critical national priority?
Answer. Promoting competition in the market for infant formula--and
for all other markets in which mothers participate to care for their
children--is a critically important function of the FTC's competition
mandate. Although I lack access to the information underlying the FTC's
decision to issue the CIDs you describe, I support the FTC taking
action consistent with its Section 5 authority to promote competition
for infant formula. If confirmed, I would work quickly with FTC staff
to get up to speed on these important issues.

Question 2. Mr. Ferguson, if confirmed, will you commit to
continuing to work your fellow commissioners and my office on
addressing this issue?
Answer. Yes.
Topic: Biometric Information Privacy Act
As you may know, Illinois has one of the strongest biometric
privacy laws in the country, the Biometric Information Privacy Act,
also known as BIPA. In fact, Commissioner Bedoya recently stated BIPA
was far ahead of its time in recognizing the sensitivity of biometric
data and establishing protections to guard it. I was pleased to see in
May, the FTC take heed of the important of protecting biometric data
and following Illinois's leadership when it issued a policy statement
addressing concerns relating to the collection and use of biometric
information and outlines the FTC power to act under Section 5 of the
FTC Act.

Question 3. Mr. Ferguson, do you agree with the FTC's biometric
policy statement? How would you work with states, like Illinois, to
protect biometric data?
Answer. In the absence of Federal legislative action, States like
Illinois have taken the lead in protecting consumer data. That is
exactly what our Constitution contemplates. Illinois--and the vast
majority of other States to have taken up privacy legislation,
including Virginia--appropriately treat biometric data as sensitive
data. This apparent consensus on the treatment of biometric data as
sensitive data subject to the highest level of protection demonstrates
why Congress should take action to address this important issue of
interstate commerce.
In the absence of Congressional action, the FTC should take
enforcement actions regarding the use of biometric data where the facts
make clear that the collection, use, or transfer of those data violates
Section 5's prohibition on unfair methods of competition, or where
collection, use, or transfer constitutes an unfair or deceptive act or
practice.
As a state law enforcer, I am particularly sensitive to the FTC's
relationship with the States. The FTC frequently collaborates with
state law enforcers to great effect. If confirmed, I would work to
promote further collaboration.
Topic: Artificial Intelligence and Algorithmic Decision Making
Every day, we see more and more businesses integrate AI algorithms
across their systems, including inside automated systems that process
personal information. In almost all of those systems, it's unclear to
the end user how their data is being used.

Question 4. How do you see the FTC's role in ensuring AI algorithms
are not used in ways that could introduce inaccuracy, bias, and even
discrimination into commercial decisions that affect people's lives?
Answer. The FTC should enforce its statutory mandates regarding AI
practices as vigorously as it does for every other industry. If the use
of AI constitutes an unfair method of competition or an unfair or
deceptive act or practice, or violates some other statute the FTC
enforces--for example, the Equal Credit Opportunity Act's prohibition
on discrimination in the extension of credit--the FTC should take
enforcement action consistent with the law.
______

Response to Written Questions Submitted by Hon. Kyrsten Sinema to
Andrew N. Ferguson
Agency Authority/Artificial Intelligence. Both the threats and
potential benefits of artificial intelligence (AI) are far-reaching, a
phenomenon reflected in various government agencies and Congressional
committees learning and addressing these issues from their particular
vantage points. Some members have already raised concerns with the
steps taken thus far by the Federal Trade Commission (FTC) and there is
no doubt that the agency will play a significant role going forward.

Question 1. Under its current authorities--including but not
limited to enforcement actions--what role do you believe the FTC is to
play in the regulation of artificial intelligence? What roles do you
believe different parts of the FTC should play for the agency to best
address these evolving issues?
Answer. I believe the FTC should vigorously enforce the statutes
Congress has charged it with enforcing, and that it should go no
further than Congress has expressly authorized it to go. Congress has
charged the FTC with enforcing the laws prohibiting unfair methods of
competition and unfair or deceptive acts or practices. The FTC should
initiate enforcement actions regarding artificial intelligence only
insofar as the use of artificial intelligence constitutes an unfair
method of competition or an unfair or deceptive act or practice, or
violates some other law that the FTC enforces. For example, it has
become clear that AI can be used to create deepfakes, voice clones, and
enhance the sophistication of e-mail phishing schemes that primarily
target elderly Americans. This is a critical area on which the FTC
should focus its enforcement resources, consistent with its Section 5
authority.

Question 2. Do you believe that the FTC is at risk of going beyond
its statutory authority in the approach it has taken to AI to date?
Answer. Both in its enforcement and rulemaking proceedings, the FTC
should always remain well within the bounds of the authority granted to
it by Congress. If confirmed, I would work hard to ensure that the FTC
would act only where Congress has clearly authorized it to act, and
only in the manner Congress has authorized it to act.

Question 3. In your view, where should Congress best concentrate
its attention to ensure that the FTC has the proper resources and
authorities to fulfill its statutory mandates for the American people
in the AI space?
Answer. If confirmed, I would consult with the career staff and
with other Commissioners to determine whether the FTC has the resources
it needs to carry out its congressional mandate successfully. If more
resources are required to enforce existing authorities, or if
additional authority is needed to protect consumers, I would work with
Congress to obtain those resources and that additional authority.

Section 13(b) Authority and Congressional Action. The FTC's loss of
its 13(b) authority has certainly altered how the agency operates.

Question 4. In your view, based on how the agency has operated
since the ruling, what should Congress do to address this problem and
protect consumers?
Answer. The authority the FTC believed it had under Section 13(b)
of the Federal Trade Commission Act was a critical part of the FTC's
enforcement toolkit. The FTC invoked that authority to recover billions
of dollars in restitution and disgorgement for consumers. I believe
Congress should pass legislation authorizing the FTC to obtain court-
ordered monetary relief for consumers injured by unfair or deceptive
acts or practices.
______

Response to Written Question Submitted by Hon. Ben Ray Lujan to
Andrew N. Ferguson
Question. The FTC is an independent agency with a statutory mandate
to both protect consumers and promote competition. As an independent
agency, the FTC is able to act without pressure from elected officials,
political appointees, or special interests. In your view, why is it
important to maintain the independence of the FTC?
Answer. Congress has tasked the FTC with protecting consumers from
unfair methods of competition and from unfair or deceptive acts and
practices. The FTC cannot perform that duty unless it acts in the best
interest of American consumers, rather than at the behest of special
interest groups or other self-interested actors.
______

Response to Written Questions Submitted by Hon. John Hickenlooper to
Andrew N. Ferguson
Section 5 of the FTC Act. Section 5 of the Federal Trade Commission
Act (FTC Act) grants the Commission authority to protect consumers from
``unfair or deceptive acts or practices in or affecting commerce''. The
FTC has used its authorities under Section 5 (15 U.S.C. 45) to issue
rules prohibiting certain practices that harm consumers and collect
civil penalties from companies who violate established rules.

Question. Do you believe the FTC has used its authorities under 15
U.S.C. 45 appropriately? If not, in what instances do you believe the
FTC has used its authorities beyond the scope of Section 5 of the FTC
Act? If confirmed, how would you apply the FTC's authorities under
Section 5 when considering proposed rulemakings?
Answer. Congress in Section 18 of the Federal Trade Commission Act
has carefully delineated the FTC's authority to promulgate rules
regarding unfair or deceptive acts or practices in or affecting
commerce. See Magnusson-Moss Warranty--Federal Trade Commission
Improvement Act, Pub. L. 93-637, Sec. 202, 88 Stat. 2183, 2193-98
(1975) (codified at 15 U.S.C. Sec. 57a). The FTC may issue rules to
address unfair or deceptive acts or practices that are ``prevalent'' in
the markets. 15 U.S.C. Sec. 57a(b)(3). The Act also requires the FTC to
follow special procedures for any Section 18 rulemaking. If confirmed,
I would work hard to ensure that the FTC does not exceed Congress's
grant of rulemaking authority, and that it complies with all the
procedural safeguards imposed by Congress.

FTC & Consumer Welfare Standard. The ``consumer welfare
standard''--where individuals benefit from consuming goods and
services--has been used by courts when evaluating the potential impacts
and antitrust implications that a proposed corporate merger may have on
consumers. In today's modern economy, consumers can benefit from goods
and services in the physical and digital domains, which has raised
questions about whether U.S. antitrust laws have kept pace.

Question. If confirmed, how would you apply the consumer welfare
standard in future proposed transactions brought before the FTC? Would
you consider other impacts of proposed transactions on consumers?
Answer. The FTC enforces the Clayton Act, which prohibits mergers
the effect of which ``may be substantially to lessen competition, or to
tend to create a monopoly.'' 15 U.S.C. Sec. 18. In determining whether
a merger may substantially lessen competition or tend to create a
monopoly, courts and the Commission consider a wide variety of
factors--including market share; probable effects on price and output;
the effect on input markets, including the risk of monopsony; potential
effects on product quality and innovation; and the effect of the merger
on potential entrants. If confirmed, I would vigorously enforce the
Clayton Act's prohibition on anti-competitive mergers.
______

Response to Written Questions Submitted by Hon. Raphael Warnock to
Andrew N. Ferguson
Antitrust Enforcement. The Federal Trade Commission (FTC) plays a
critical role in antitrust enforcement across many sectors, including
in the defense industry. Unlike in other sectors, however, defense
industry contractors are often Federal government entities that derive
their revenue from taxpayer dollars. This creates a special
responsibility for the government to ensure competition in these
markets, especially considering the essential role of the defense
industrial base in our national security.

Question. How do you view the significance of enforcing antitrust
laws in ensuring fair competition, innovation, and cost-effectiveness
in defense procurement?
Answer. Promoting competition and innovation in our defense markets
is critically important not only to protect taxpayer resources, but
also to ensure a ready supply of materiel and the industrial
infrastructure to produce it in the event of armed conflict. Our
antitrust laws are the principle means Congress has chosen to promote
competition and protect innovation in our markets, including our
defense markets. Vigorous enforcement of the antitrust laws in the
defense markets is therefore a critical part of the FTC's statutory
mandate.

Question. How would you prioritize and approach this issue if
confirmed as an FTC nominee?
Answer. If I were confirmed, I would work with the FTC's staff and
my fellow Commissioners to ensure the FTC was doing everything its
resources allow to promote competition in these important markets.

Question. If confirmed, how would you prioritize and approach the
issue of combatting frauds and scams?
Answer. Preventing and combatting frauds and scams is one of the
FTC's most critical missions. As a state law enforcer, I am keenly
aware of the important role that state attorneys general play in
protecting consumers from fraud and scams. The FTC has a long history
of collaborating with state attorneys general to protect consumers. If
confirmed, I would work to promote further collaboration with state
law-enforcement officials to protect consumers from frauds and scams.

Question. What steps you believe the FTC should take to combat
frauds and scams as new technologies, including generative artificial
intelligence, may enable bad actors to create more sophisticated scams
while using fewer resources?
Answer. As scammers and fraudsters become more sophisticated, the
FTC must do its level best to keep pace. The FTC recently established
the Office of Technology in part to ensure that the FTC could stay up
to speed on technological developments, including artificial
intelligence. I believe this is a step in the right direction. If
confirmed, I would work with my fellow Commissioners to ensure the FTC
continues adapting its enforcement tools to new technology and
practices.

Question. What steps can the FTC take within its statutory
authority to protect and educate consumers about the sale of precise
geolocation data?
Answer. The collection of consumer data, including precise
geolocation data, generally happens in the background of consumer
transactions without the consumer's awareness. Consumers have even less
insight into the aggregation and sale of those data. The FTC has taken
steps to educate consumers, and I support taking further efforts to
educate consumers. Insofar as the collection, aggregation, or sale of
precise geolocation data constitutes an unfair method of competition or
an unfair or deceptive practice or act, the FTC has statutory authority
to bring enforcement actions.

Question. What can Congress do to better inform consumers about the
business-to-business sale of their data?
Answer. The regulation of the collection, aggregation, and sale of
consumer data is a critical question of interstate commerce that is
appropriately the subject of Federal legislation. I support
congressional action to educate consumers on the collection,
aggregation, and sale of consumer data, and to protect the privacy of
those data.
______

Response to Written Questions Submitted by Hon. Peter Welch to
Andrew N. Ferguson
Question 1. What are your thoughts on the impact AI will have on
competition in the technology sector, and what do you believe is the
appropriate role of the FTC in reducing the anticompetitive effects of
AI in the technology sector?
Answer. Like many new technologies, AI presents opportunities both
to foster innovation and efficiency, and to assist bad actors carrying
out monopolistic schemes, frauds, and scams. The FTC has a long history
of adapting its enforcement tools to confront changing technologies and
new markets. I believe that AI is one example in a long line of
technological advancements to which the FTC must adapt its enforcement
tools.

Question 2. If confirmed, how would you approach mitigating the
potential harms of artificial intelligence?
Answer. The FTC's mission is to police unfair methods of
competition and unfair or deceptive acts or practices. Congress first
mandated that mission more than a century ago. The FTC has consistently
adapted to execute that mission in the face of substantial and constant
changes in technology. If confirmed, I would work closely with the
FTC's expert staff and my fellow Commissioners to ensure that the FTC
enforcement tools keep pace with changes in technology, and to
vigorously enforce Section 5 when artificial intelligence is used in
furtherance of unfair methods of competition or unfair or deceptive
acts or practices.

Question 3. Do you believe AI will increase competition or will it
lead to further consolidation?
Answer. It is difficult to predict the competitive effects of AI
given the almost infinite number of uses to which AI may eventually be
put. Like many new technologies, AI may promote competition in some
instances and degrade it in others.
______

Response to Written Question Submitted by Hon. Ted Cruz to
Andrew N. Ferguson
In questions at the hearing regarding FTC's advanced notice of
proposed rulemaking on commercial surveillance and data security, you
said you would be willing to table the rule.

Question. What did you mean by that?
Our system of government depends on each branch of the Federal
government exercising only the powers the Constitution assigns to them.
Congress makes the laws, and the executive branch--including the FTC--
executes those laws. The Executive Branch cannot make law, and it is
critically important that agencies of the Executive Branch exercise
only those powers Congress has given them. The FTC should bring
enforcement actions where consumer data is used to facilitate unfair
methods of competition or unfair or deceptive acts or practices. But I
have reservations about the rule contemplated by the advanced notice of
proposed rulemaking; it may exceed the authority conferred on the FTC
by Congress. Moreover, I am firmly of the view that congressional
action is the only way to address data privacy and security
comprehensively. Prudence suggests that the FTC should be slow to enact
regulations which risk disrupting Congress's ongoing consideration of
comprehensive privacy legislation.
My reservations notwithstanding, if I were confirmed I would
consider the comments submitted in response to the advanced notice of
proposed rulemaking and the text of any draft rule with an open mind. I
would base any decision regarding that rule exclusively on the law as
Congress has written it.
______

Response to Written Questions Submitted by Hon. John Thune to
Andrew N. Ferguson
Question 1. Mr. Ferguson and Ms. Holyoak, earlier this year, the
FTC issued a ``Request for Information'' on franchising which included
many questions about private franchise contracts and franchisors'
association with franchisee employees. If confirmed, would you agree
that the FTC should proceed with caution and not create any rules or
obligations that would unravel or threaten the franchise model in the
United States and the survival of the 800,000 franchise businesses and
their workers across America?
Answer. The franchise model has been a boon to the American
economy. Because I have not yet been confirmed, I am unfamiliar with
the record underlying the FTC's request for information. If confirmed,
I would work with FTC staff to get up to speed on the request for
information. The FTC should not take any action in any industry,
including franchises, that is inconsistent with its statutory mandate.

Question 2. As you know, I am one of the authors of the TRACED Act
that was passed into law in 2019, creating, among other things the
registered traceback consortium. We've seen some progress since then,
including a decline in illegal and fraudulent robocalls. If confirmed,
will you commit to continue to prioritize FTC efforts to stop illegal
robocalls?
Answer. Yes. Robocalls are a plague from which no consumer is
immune, and if confirmed I would work with my colleagues to make this a
top priority for the FTC.
______

Response to Written Questions Submitted by Hon. Jerry Moran to
Andrew N. Ferguson
1. Data Privacy: FTC Acting Without Congress
I was disappointed the FTC chose to pursue a Section 18 rulemaking
on data privacy and security. No directive was given to the FTC or
Congress to pursue such a rulemaking, as the issue is a matter of
ongoing and active debate in Congress, and this Committee in
particular.
Last year, the U.S. Supreme Court in West Virginia v. EPA
reaffirmed the principle that Federal agencies must operate within
their statutory boundaries, emphasizing the need for a clear grant of
authority under the ``major questions doctrine'' for rulemaking. Since
that decision was issued, the FTC has pursued rulemaking on a number of
issues, including data privacy.

Regardless of whether Commissioner Chopra's votes comported with
the Commission's rules at the time, do you believe that Commissioners
should be able to vote after leaving the FTC?
Answer. Permitting a Commissioner to vote on matters that are not
decided by the FTC until after that Commissioner has departed is
inconsistent with principles of sound deliberation and collective
decision making. It denies sitting Commissioners the opportunity to
debate the departing Commissioner's views and undermines transparency.
4. Staff Morale at the FTC
An April 2023 study found that staff morale at the FTC has
decreased dramatically since 2020, when the Commission was the highest-
ranking Federal agency in terms of employee satisfaction. Particularly
concerning are scores pertaining to FTC employee satisfaction with
Commission leadership, which fell from 84.3 in 2020 to 46.6 in 2022.

In general, what factors contribute to high employee satisfaction?
How can organization leaders impact the morale of staff?
Answer. It is my experience that employees are satisfied with their
work if they have a clear sense of their mission, and have leaders who
insist on excellence in the execution of that mission, and who work to
promote a culture of excellence.

If confirmed by the Senate, how would you work to increase employee
satisfaction at the Commission?
Answer. I would meet with the FTC staff to understand what concerns
they have, how they understand their mission, what I can to do support
them in its execution, and to solicit input on how to promote a culture
of excellence within the agency.
5. Motor Vehicle Dealers Trade Regulation Rule
Last summer, the FTC noticed the Motor Vehicle Dealers Trade
Regulation Rule, which would add requirements for dealerships to follow
and change the way Americans purchase vehicles. I understand the FTC
did not pursue an Advanced Notice of Proposed Rulemaking in this case,
which would have given stakeholders an additional opportunity to
provide the FTC information on the car buying process.

Generally speaking, do you believe the FTC should pursue all
available information-gathering avenues and conduct thorough cost-
benefit analyses before acting to implement a significant rule, like
the Motor Vehicle Dealers Rule?
Answer. I generally believe that more information is better than
less, and that regulations premised on a comprehensive understanding of
markets, consumer behavior, and potential costs and benefits are better
than those that are not premised on a comprehensive understanding.
______

Response to Written Questions Submitted by Hon. Cynthia Lummis to
Andrew N. Ferguson
1) Last year, the FTC issued an Advanced Notice of Proposed
Rulemaking (ANPR) for the Trade Regulation Rule on Commercial
Surveillance and Data Security. I expressed my concerns in a letter
that this rulemaking would only add to the regulatory uncertainty that
businesses face when complying with data privacy regulation and
potentially increase costs. I additionally voiced my concerns that the
FTC was exceeding its authority by proposing a broad rulemaking action
that would have large-scale impacts on the U.S. economy.

a) Do you believe that the FTC overstepped its authority in issuing
the ANPR for the Trade Regulation Rule on Commercial Surveillance and
Data Security?
Answer. Our system of government depends on each branch of the
Federal government exercising only the powers the Constitution assigns
to them. Congress makes the laws, and the executive branch--including
the FTC--executes those laws. The Executive Branch cannot make law, and
it is critically important that agencies of the Executive Branch
exercise only those powers Congress has given them. The FTC should
bring enforcement actions where consumer data is used to facilitate
unfair methods of competition or unfair or deceptive acts or practices.
But I have reservations about the rule contemplated by the advanced
notice of proposed rulemaking; it may exceed the authority conferred on
the FTC by Congress. Moreover, I am firmly of the view that
congressional action is the only way to address data privacy and
security comprehensively. Prudence suggests that the FTC should be slow
to enact regulations which risk disrupting Congress's ongoing
consideration of comprehensive privacy legislation.
My reservations notwithstanding, if I were confirmed I would
consider the comments submitted in response to the advanced notice of
proposed rulemaking and the text of any draft rule with an open mind. I
would base any decision regarding that rule exclusively on the law as
Congress has written it.

b) Do you believe that the FTC should wait for Congress to enact
comprehensive data privacy regulation before issuing rules on data
privacy?
Answer. I believe that Congress alone possesses the authority to
address data privacy comprehensively, and that the FTC should not
exercise its authority in a way that would exceed its statutory
authority or which might interfere with the development of
comprehensive privacy legislation by Congress.
______

Response to Written Questions Submitted by Hon. Maria Cantwell to
Melissa Holyoak
The State of Utah joined an amicus brief in Illumina, Inc. and
Grail, Inc., No. 23-60167 (5th Cir.), in which the amici states argued,
among other points, that (1) Congress's delegation of authority to the
Federal Trade Commission (``FTC'') to ``pick its forum as between its
own administrative law judge and an Article III court[]'' is
unconstitutional, and (2) the FTC's structure is unconstitutional
because FTC commissioners cannot be removed by the President except for
cause.

Question 1. Setting aside your participation in the amicus brief,
do you believe the FTC's structure is unconstitutional? If yes, why?
Answer. If confirmed, I will comply with Supreme Court precedent.
In Humphrey's Executor v. United States, the Supreme Court held that
the FTC's structure is constitutional. 295 U.S. 602, 629-30 (1935).

Question 3. Please list each and every action taken by the FTC
within the past 5 years that you believe was unconstitutional, in whole
or in part.
Answer. With respect to completed matters, I am unaware of any FTC
action in the past five years that is unconstitutional although I have
not done an exhaustive review of every FTC action during that time
period. As a nominee, I am not in a position to comment on the
constitutionality of any pending or active matters.
As Americans become more and more reliant on technology, privacy
and data security couldn't be more important. In 2020, the FTC entered
into a record $5 billion settlement with Facebook for its privacy
violations. This past May, the FTC alleged that Meta violated the 2020
settlement, a big sign that the FTC's $5 billion fine was just a slap
on the wrist. Companies often treat FTC fines as a cost of doing
business. Plainly, government enforcement alone is not enough to
protect consumer privacy.

Question 4. Do you agree that Congress should pass a privacy law
that gives individuals a private right of action they can enforce in
court when they have been seriously harmed by privacy violations? If
no, why not?
Answer. I agree that Congress should enact comprehensive privacy
legislation that includes appropriate remedies. Whether or not those
remedies should include a private right of action is a question I would
like to research further. If confirmed, I will confer with the FTC
staff and my fellow Commissioners to better understand their views and
experiences regarding privacy enforcement proceedings including how a
private right of action could impact the FTC's enforcement of a data
privacy law. I would also seek to understand what additional resources
may be necessary for enforcement of a data privacy law and how the FTC
could partner with state attorneys general on enforcement. I look
forward to working with your office on this, if confirmed.
Consumers are paying prices for gasoline and diesel that are way
too high. West Coast Consumers are paying well over a dollar per
gallon, sometimes two dollars per gallon, more than consumers in other
parts of the country. Thanks to Enron, we know energy markets can be
manipulated. Congress gave the FTC anti-manipulation authority in 2007,
but we have yet to see the agency use it to protect consumers from
manipulative market practices.

Question 6. Do you support giving the FTC more resources and
authority to fight market manipulation that is causing Americans to pay
more at the pump?
Answer. I am not privy to any current FTC investigations or actions
relating to transportation fuel market manipulation. If confirmed, I
will confer with the FTC staff and my fellow Commissioners and
familiarize myself with FTC's ongoing investigations, if any, to
determine whether there is a need for additional resources or
authority.
You are a member of the Teneo Network, a network with plans to
``crush liberal dominance'' and a website ``crafted so as not to pique
the interest of Senate staffers who might look up the group if one of
its members mentions Teneo during a
confirmation process for a judgeship or a cabinet position'' according
to ProPublica reporting (see https://www.propublica.org/article/
leonard-leo-teneo-videos-docu
ments).

Question 7. How will your affiliation with this organization impact
your ability to make independent decisions as a FTC Commissioner?
Answer. My affiliation with this organization does not and will not
impact my ability to make independent decisions.

Question 8. Will you defer to the principles, beliefs, or agenda of
the Teneo Network, or any other organization to which you belong, when
making decisions as a FTC Commissioner?
Answer. If confirmed, I will not defer to the views of any outside
organization in making decisions, but instead, I will carefully and
neutrally consider the facts and legal authorities.

Question 9. What would the founders, leadership, or members of the
Teneo Network want to keep from the Senate or Senate staffers during a
confirmation process?
Answer. I have submitted all information requested by the Senate in
my confirmation process and I will continue to do so. But I am not in a
position to respond on anyone else's behalf.
Former FTC Commissioner Joshua Wright, who was recently accused by
multiple women of sexual misconduct, is a well-known figure in the
antitrust community.

Question 10. Did you have any conversations with Mr. Wright about
becoming an FTC Commissioner prior to your nomination? After?
Answer. As I did with other former FTC Commissioners, I spoke with
him about his experience in becoming and serving as an FTC Commissioner
after Leader McConnell recommended me to the President for this
position, both before and after President Biden nominated me. I have
not spoken with him since I learned of those allegations in the media.

Question 11. If confirmed, will you commit to ensuring that the FTC
is a workplace free of sexual misconduct?
Answer. If confirmed, I will do everything in my power to ensure
that the FTC is a workplace free of sexual misconduct.
______

Response to Written Questions Submitted by Hon. Tammy Duckworth to
Melissa Holyoak
Topic: Infant Formula Shortage
Since the February 2022 recall of Abbott formula, many families
around the country are still feeling the impact of the infant formula
shortage. While some progress has been made, it is difficult to say
whether we have taken the necessary steps to ensure a similar crisis
does not happen again in the future. I appreciate FTC moving forward
with its investigation and issuing three Civil Investigative Demand
(CID) requests to three infant formula manufacturers.

Question 1. Ms. Holyoak, do you support the Federal Trade
Commission's work in this area? If not how would you recommend we
ensure the infant formula industry promotes effective competition and
more resilient supply chains remains is a critical national priority?
Answer. Ensuring that the country does not face another infant
formula shortage is critically important. I am familiar with the FTC's
work on the issue but I am not privy to the details of the
investigations. If confirmed, I will confer with FTC staff and support
all actions where the law and the facts warrant enforcement.

Question 2. Ms. Holyoak, if confirmed, will you commit to
continuing to work with your fellow commissioners and my office on
addressing this issue?
Answer. Yes.
Topic: Biometric Information Privacy Act
As some of you may know, Illinois has one of the strongest
biometric privacy laws in the country, the Biometric Information
Privacy Act, also known as BIPA. In fact, Commissioner Bedoya recently
stated BIPA was far ahead of its time in recognizing the sensitivity of
biometric data and establishing protections to guard it. I was pleased
to see in May, the FTC take heed of the important of protecting
biometric data and following Illinois's leadership and issuing a policy
statement addressing concerns relating to the collection and use of
biometric information and outlines the FTC power to act under Section 5
of the FTC Act.

Question 3. Ms. Holyoak, do you agree with the FTC's biometric
policy statement? How would you work with states, like Illinois, to
protect biometric data?
Answer. I agree that the FTC should combat unfair or deceptive acts
or practices relating to biometric information. The increased
collection and use of biometric information raises consumer privacy and
data security concerns. This is a critical area for the FTC to exercise
its authority because biometric data is being used to create voice
clones, deepfakes, and other fraudulent practices that significantly
harm Americans, particularly the elderly. Further, the FTC has a long
history of coordinating with state attorneys general. If confirmed, I
will work with FTC staff to understand the FTC's pending investigations
and collaborative efforts with states like Illinois. I commit to using
the statutory authorities vested in the FTC by Congress to protect the
privacy and security of Americans' biometric data.
Topic: Artificial Intelligence and Algorithmic Decision Making
Every day, we see more and more businesses integrate AI algorithms
across their systems, including inside automated systems that process
personal information. In almost all of those systems, it's unclear to
the end user how their data is being used.

Question 4. How do you see the FTC's role in ensuring AI algorithms
are not used in ways that could introduce inaccuracy, bias, and even
discrimination into commercial decisions that affect people's lives?
Answer. While the technological advances in AI and machine learning
may be new, the FTC has experience in considering automated decision-
making and its effects on Americans. In addition to its authority to
enforce against unfair or deceptive acts or practices, the FTC is
charged with enforcing the Equal Credit Opportunity Act, which
prohibits discrimination in credit decisions, as well as the Fair
Credit Reporting Act, which protects the accuracy of consumers' credit
reporting information. This work can help guide the FTC as it considers
application of its statutory authorities to new technologies. If
confirmed, I will enforce FTC's statutory authorities relating to AI
algorithms where the law and the facts support such enforcement.
______

Response to Written Questions Submitted by Hon. Kyrsten Sinema to
Melissa Holyoak
Agency Authority/Artificial Intelligence. Both the threats and
potential benefits of artificial intelligence (AI) are far-reaching, a
phenomenon reflected in various government agencies and Congressional
committees learning and addressing these issues from their particular
vantage points. Some members have already raised concerns with the
steps taken thus far by the Federal Trade Commission (FTC) and there is
no doubt that the agency will play a significant role going forward.

Question 2. Do you believe that the FTC is at risk of going beyond
its statutory authority in the approach it has taken to AI to date?
Answer. The FTC is currently engaged in investigations and
enforcement actions relating to AI to which I am not privy. I look
forward to being briefed on these matters by FTC staff and my fellow
Commissioners, if confirmed, and to understanding better the various
bases for these actions.

Question 3. In your view, where should Congress best concentrate
its attention to ensure that the FTC has the proper resources and
authorities to fulfill its statutory mandates for the American people
in the AI space?
Answer. While the technological advances in AI and machine learning
may be new, the FTC has experience in considering analogous
technologies like automated decision-making and its effects on
Americans through the Equal Credit Opportunity Act and the Fair Credit
Reporting Act. This work can help guide the FTC as it considers
application of its statutory authorities to new technologies. If
confirmed, I will enforce FTC's statutory authorities relating to AI
algorithms where the law and the facts support such enforcement. To
better understand what resources or additional tools are needed, I
would want to discuss these issues with FTC experts and my fellow
Commissioners, if I am confirmed. I would also seek to maintain a
continued dialogue with Congress on these matters.

Section 13(b) Authority and Congressional Action. The FTC's loss of
its 13(b) authority has certainly altered how the agency operates.

Question 4. In your view, based on how the agency has operated
since the ruling, what should Congress do to address this problem and
protect consumers?
Answer. The ability to recover equitable monetary relief in court
to make consumers whole is an important and effective tool for
enforcers. I generally support Congress's efforts to restore this tool.
______

Response to Written Question Submitted by Hon. Ben Ray Lujan to
Melissa Holyoak
Question. The FTC is an independent agency with a statutory mandate
to both protect consumers and promote competition. As an independent
agency, the FTC is able to act without pressure from elected officials,
political appointees, or special interests. In your view, why is it
important to maintain the independence of the FTC?
Answer. The FTC is charged with protecting Americans from deceptive
or unfair business practices and from unfair methods of competition. In
fulfilling its mandate, the FTC should focus on protecting Americans
and faithfully and neutrally applying the law across all industries. If
confirmed, I will not defer to the views of any outside organization in
making decisions, but instead, I will carefully and neutrally consider
the facts and legal authorities.
______

Response to Written Questions Submitted by Hon. John Hickenlooper to
Melissa Holyoak
Section 5 of the FTC Act. Section 5 of the Federal Trade Commission
Act (FTC Act) grants the Commission authority to protect consumers from
``unfair or deceptive acts or practices in or affecting commerce''. The
FTC has used its authorities under Section 5 (15 U.S.C. 45) to issue
rules prohibiting certain practices that harm consumers and collect
civil penalties from companies who violate established rules.

Question. If confirmed, how would you apply the consumer welfare
standard in future proposed transactions brought before the FTC? Would
you consider other impacts of proposed transactions on consumers?
Answer. The FTC reviews proposed transactions and takes action to
prevent anticompetitive mergers or acquisitions where the transaction
would substantially lessen competition. In analyzing a proposed
transaction, courts assess a range of factors including reduced output,
decreased product quality, stifled innovation, higher prices, and other
effects. To that end, the current antitrust laws are sufficiently broad
and flexible to address emerging technologies including digital
markets. If confirmed, I would enforce competition laws under
applicable statutory authorities and legal precedent.
______

Response to Written Questions Submitted by Hon. Raphael Warnock to
Melissa Holyoak
Antitrust Enforcement. The Federal Trade Commission (FTC) plays a
critical role in antitrust enforcement across many sectors, including
in the defense industry. Unlike in other sectors, however, defense
industry contractors are often Federal government entities that derive
their revenue from taxpayer dollars. This creates a special
responsibility for the government to ensure competition in these
markets, especially considering the essential role of the defense
industrial base in our national security.

Question. How do you view the significance of enforcing antitrust
laws in ensuring fair competition, innovation, and cost-effectiveness
in defense procurement?
Answer. The antitrust laws protect competition across all
industries including the defense industry. Robust competition in the
defense industry serves both the Defense Department and the American
taxpayer by leading to lower prices, higher quality goods and services,
and more innovation.

Question. How would you prioritize and approach this issue if
confirmed as an FTC nominee?
Answer. If confirmed, I would seek to understand from FTC experts
what the FTC is currently doing with respect to these issues and how
best to proceed. I am committed to vigorously enforcing the antitrust
laws where the facts and the law warrant such enforcement.

Question. If confirmed, how would you prioritize and approach the
issue of combatting frauds and scams?
Answer. If confirmed, I would combat frauds and scams through
investigation, enforcement, consumer education, and collaboration with
law enforcement partners. The FTC recently published a Request for
Information seeking comments on how the FTC can more effectively
collaborate with state attorneys general to educate consumers regarding
fraud. I look forward to reviewing the comments submitted in response
to the Request and implementing effective strategies to improve
collaboration and outreach, if confirmed.

Question. What steps you believe the FTC should take to combat
frauds and scams as new technologies, including generative artificial
intelligence, may enable bad actors to create more sophisticated scams
while using fewer resources?
Answer. Fraudsters and scammers are taking advantage of new
technologies like artificial intelligence to personalize scam texts and
e-mails, or clone voices of family or friends, often targeting the most
vulnerable Americans, such as the elderly. The FTC must stay abreast of
these technologies and effectively adapt enforcement and outreach.

Question. What steps can the FTC take within its statutory
authority to protect and educate consumers about the sale of precise
geolocation data?
Answer. Most consumers are unaware of the collection and sale of
their precise geolocation data. The FTC's website educates consumers on
how and why websites and apps track consumers and what consumers can do
to eliminate tracking. If confirmed, I would want to understand from
FTC staff how to improve these education efforts.

Question. What can Congress do to better inform consumers about the
business-to-business sale of their data?
Answer. This is an issue on which, if confirmed, I would seek
insight from FTC staff and my fellow Commissioners. If confirmed, I
would welcome a dialogue with Congress regarding consumer education on
data privacy.
______

Response to Written Questions Submitted by Hon. Peter Welch to
Melissa Holyoak
Question 1. Earlier this year, I along with my colleague Senator
Bennet, reintroduced the Digital Platform Commission Act to help
centralize how our government oversees and regulates social media
platforms. This bill would create a new independent agency of subject
matter experts to provide comprehensive regulation of digital platforms
to protect consumers, promote competition, and defend the public
interest. The bill was updated this Congress to incorporate regulations
related to artificial intelligence (AI).

a. What do you believe is the appropriate role, if any, of the FTC
in addressing the potential harms of social media platforms--including
addressing practices like algorithmic boosting, extensive data
collection, and concentration among platforms?
Answer. The FTC has brought enforcement actions relating to
unauthorized data collection, as well as antitrust claims, against
social media platforms. In addition, the FTC is currently engaged in a
6(b) study regarding how social media and video streaming services
collect and use data. I look forward to understanding the results of
this study and would support continued investigation and enforcement of
social media platforms where the facts and the law warrant such
enforcement.

b. If confirmed, what steps would you take to bolster
accountability at, and more effectively regulate, Big Tech companies?
Answer. To effectively protect consumers from unfair or deceptive
acts or practices and anticompetitive conduct in the digital markets,
the FTC must stay abreast of technological advancements and adapt
enforcement and outreach accordingly.
______

Response to Written Question Submitted by Hon. Ted Cruz to
Melissa Holyoak
In questions at the hearing regarding FTC's advanced notice of
proposed rulemaking on commercial surveillance and data security, you
said you would be willing to table the rule.

Question. What did you mean by that?
Answer. The FTC's advanced notice of proposed rulemaking on
commercial surveillance and data security involved a myriad of topics
on which the FTC received over 11,000 comments. I believe the best
approach to addressing data privacy is comprehensive legislation. Such
legislation would necessarily direct any rulemaking in this space. I
generally support delaying formulation and publication of proposed data
privacy rules given that Congress may take up comprehensive privacy
legislation and such legislation would likely require revisions to any
proposed rules. However, before making a decision on a draft rule, I
would review the text of the draft rule, consider the administrative
record including the public comments, and speak with the FTC career
staff and my colleagues on the Commission.
Response to Written Questions Submitted by Hon. John Thune to
Melissa Holyoak
Question 1. Mr. Ferguson and Ms. Holyoak, earlier this year, the
FTC issued a ``Request for Information'' on franchising which included
many questions about private franchise contracts and franchisors'
association with franchisee employees. If confirmed, would you agree
that the FTC should proceed with caution and not create any rules or
obligations that would unravel or threaten the franchise model in the
United States and the survival of the 800,000 franchise businesses and
their workers across America?
Answer. The franchise business model provides Americans important
economic opportunities, particularly for small businesses which make up
the backbone of our economy. Any regulation should carefully consider
burdens that could decrease such opportunities. If confirmed, I will
review the record relating to the Request for Information, consider the
public comments, and solicit the views of the FTC staff and my fellow
Commissioners on these issues before making a decision.

Response to Written Questions Submitted by Hon. Jerry Moran to
Melissa Holyoak
1. Data Privacy: FTC Acting Without Congress
Last year, the U.S. Supreme Court in West Virginia v. EPA
reaffirmed the principle that Federal agencies must operate within
their statutory boundaries, emphasizing the need for a clear grant of
authority under the ``major questions doctrine'' for rulemaking. Since
that decision was issued, the FTC has pursued rulemaking on a number of
issues, including data privacy.

How should the FTC apply the West Virginia v. EPA decision when
considering rulemaking projects? Can significant rulemaking projects be
undertaken, even if the FTC has no clear grant of authority from
Congress to pursue the rulemaking?
Answer. In West Virginia v. EPA, the Supreme Court held that an
agency must point to ``clear congressional authorization'' when it
claims the authority to make decisions of vast ``economic and political
significance.'' 142 S. Ct. 2587, 2608-09 (2022). If confirmed, I will
faithfully follow Supreme Court precedent and respect the limits of the
statutory authority vested by Congress.
2. Data Privacy: Preemption of State Laws
What are the potential consequences to small businesses if a
Federal comprehensive data privacy law does not preempt the patchwork
of state data privacy laws? Do you believe a Federal comprehensive data
privacy law should preempt state laws? Why or why not?
Answer. In determining the preemptive reach of comprehensive
privacy legislation, Congress must balance the interests of businesses
seeking to comply with multiple statutory frameworks with the interests
of the states in providing additional protections or continued
experimentation in addressing these issues. If confirmed, I would
discuss these important questions with my fellow Commissioners, FTC
staff, and Members of Congress.
3. FTC ``Zombie'' Votes
Last November, Politico reported that Commissioner Chopra submitted
as many as 20 votes on his last day at the FTC that, thanks to the FTC
voting rules, would allow those votes to be used for Commission
business for up to 60 days.
Allowing Commissioners' votes to count after they depart their post
seems counter to common sense and good governance principles. This is
why I introduced the FTC Integrity Act, which would ensure this
practice would not continue. An amendment version of this bill received
unanimous support in this Committee last Congress.

Regardless of whether Commissioner Chopra's votes comported with
the Commission's rules at the time, do you believe that Commissioners
should be able to vote after leaving the FTC?
Answer. As the FTC grapples with some of the most complex and
challenging issues facing the country, there is tremendous value in
having the different perspectives of the sitting Commissioners. A
Commissioner may change her vote on a motion at any time before all
votes have been registered. If the votes of a departing Commissioner
are counted, those votes cannot be changed after her departure,
undermining the Commission's important deliberative process.
4. Staff Morale at the FTC
An April 2023 study found that staff morale at the FTC has
decreased dramatically since 2020, when the Commission was the highest-
ranking Federal agency in terms of employee satisfaction. Particularly
concerning are scores pertaining to FTC employee satisfaction with
Commission leadership, which fell from 84.3 in 2020 to 46.6 in 2022.

In general, what factors contribute to high employee satisfaction?
How can organization leaders impact the morale of staff?
Answer. Employees are more satisfied when they feel that the work
they are doing is valued. Leaders can significantly impact employee
satisfaction by clearly conveying Commission priorities and
communicating to employees why their work is important to achieving
those priorities.

If confirmed by the Senate, how would you work to increase employee
satisfaction at the Commission?
Answer. I look forward to getting to know the FTC staff right away,
if confirmed. I would seek to meet with the various Bureaus and
Offices, listen to staff concerns and needs, and understand how I can
best support them.
5. Motor Vehicle Dealers Trade Regulation Rule
Last summer, the FTC noticed the Motor Vehicle Dealers Trade
Regulation Rule, which would add requirements for dealerships to follow
and change the way Americans purchase vehicles. I understand the FTC
did not pursue an Advanced Notice of Proposed Rulemaking in this case,
which would have given stakeholders an additional opportunity to
provide the FTC information on the car buying process.

Response to Written Questions Submitted by Hon. Cynthia Lummis to
Melissa Holyoak
1) Last year, the FTC issued an Advanced Notice of Proposed
Rulemaking (ANPR) for the Trade Regulation Rule on Commercial
Surveillance and Data Security. I expressed my concerns in a letter
that this rulemaking would only add to the regulatory uncertainty that
businesses face when complying with data privacy regulation and
potentially increase costs. I additionally voiced my concerns that the
FTC was exceeding its authority by proposing a broad rulemaking action
that would have large-scale impacts on the U.S. economy.

a) Do you believe that the FTC overstepped its authority in issuing
the ANPR for the Trade Regulation Rule on Commercial Surveillance and
Data Security?
Answer. This ANPR is still active at the Commission and if
confirmed, I would seek to understand the views of the FTC staff and my
fellow Commissioners regarding the ANPR, including the authority for
its issuance.

b) Do you believe that the FTC should wait for Congress to enact
comprehensive data privacy regulation before issuing rules on data
privacy?
Answer. I generally support delaying formulation and publication of
proposed data privacy rules given that Congress may take up
comprehensive privacy legislation and such legislation would likely
require revisions to any proposed rules. However, before making a
decision on a draft rule, I would review the text of the draft rule,
consider the administrative record including the public comments, and
speak with the FTC career staff and my colleagues on the Commission.
______

Response to Written Questions Submitted by Hon. Maria Cantwell to
Douglas Dziak
If confirmed as a Commissioner on the Consumer Products Safety
Commission (``CPSC''), you will have to exercise judgment that will
save people's lives by regulating or banning hazardous products.

Question 1. What do you believe is the right balance between the
interests of consumers and those of businesses?
Answer. The consumer's safety is primary to the CPSC's mission. In
exercising CPSC's regulatory authority, which includes issuing
mandatory rules and banning products in certain circumstances, I will
follow the Consumer Product Safety Act as the first principle in my
decision-making.
Businesses, like all CPSC stakeholders, provide valuable input to
the Commission, be it in the development of voluntary or mandatory
standards or other regulatory activities. I am committed to reviewing
the CPSC staff findings, and the comments of all stakeholders, and then
applying the law to the facts and circumstances.
If confirmed, I intend to have an open-door policy with
stakeholders, including safety advocacy groups, affected families, and
businesses.
Section 6(b) of the Consumer Products Safety Act prevents the
disclosure of certain information to consumers without express
permission from the company about which the information pertains, which
can delay providing potentially life-saving information to consumers.

Question 2. Do you support reforming Section 6(b)? If yes, what
reforms would you support. If no, how can the CPSC ensure that
consumers have critical safety information in a timely manner?
Answer. On February 17, 2023, CPSC published a Supplemental Notice
of Proposed Rulemaking on information disclosure under Section 6(b) of
the Consumer Product Safety Act (CPSA). This rulemaking, which
contemplates updates to the agency's regulation interpreting Section
6(b), is currently pending before the Commission. I cannot prejudge a
matter on which I may participate, should I be confirmed.
In general, Section 6(b) sets forth the congressionally-mandated
process to share critical safety information with consumers. With a
health and safety finding, Section 6(b) allows the Commission to issue
a safety notice, known as a unilateral, on an expedited basis. CPSA
also places an affirmative obligation on a company, via Section 15(b),
to report possible safety issues immediately. If a company fails to
provide such reports, the Commission may pursue civil and criminal
penalties. Section 6(b) also functions as a safeguard to ensure the
information obtained under CPSA that the Commission may share is
accurate and fair in the circumstances.
As CPSC Chair Hoehn-Saric has stated, unilateral safety notices are
now a regular part of the Commission's toolkit to keep consumers
informed. The Commission, since the beginning of the Chair's tenure,
has issued over 30 such notices. This significant increase in
unilaterals demonstrates that the Commission may act under 6(b) to warn
the public about product hazards.
Whether or not to amend the statutory provisions of Section 6(b) is
a question for Congress and the President. If confirmed, I will work
with you and your staff and to provide technical drafting assistance on
legislation where appropriate.
______

Response to Written Question Submitted by Hon. Tammy Duckworth to
Douglas Dziak
Topic: Youth Poisoning Protection Act:
Mr. Dziak, I have been increasingly concerned about the ability of
young children and teenagers to access harmful substances through e-
commerce sites and occasionally, even in retail stores. If they buy
them over the internet, children and teenagers can often get harmful
substances delivered directly to their doorstep with very little
oversight. In September, Senator Vance and I introduced the bipartisan
Youth Poisoning Protection Act, which would ensure dangerous substances
like high concentration sodium nitrite are not available for consumers
to purchase.

Question. Mr. Dziak, are you concerned about hazardous substances,
like high concentration sodium nitrate, falling into the hands of
children and teenagers and will you commit to working with me on the
Youth Poisoning Protection Act?
Answer. Yes. I share your concern about children and teenagers
easily obtaining high-concentration sodium nitrate. I commit to working
with you and your office on the Youth Poisoning Protection Act and to
providing technical drafting assistance on your legislation where
appropriate.
______

Response to Written Question Submitted by Hon. Ben Ray Lujan to
Douglas Dziak
Question. The current consumer recall response rate is 16 percent.
What does the CPSC need to do to increase consumer responsiveness to
recalls, particularly within tribal communities and non-English
language communities?
Answer. I share your concern regarding the CPSC's recall response
rate. If confirmed, I am committed to work with my colleagues to
improve recall effectiveness. Direct notice to consumers is the most
efficient way to maximize recall effectiveness. The Commission and
recalling firms should work to improve the quality of the outreach to
reflect cultural competency and bridge language barriers.
For example, in June, the Commission began posting all recalls in
Spanish. In addition, the Commission is in the process of implementing
the GAO's November 2020 recommendations regarding recall effectiveness,
with four of five recommendations fully implemented. If confirmed, I am
committed to working with my colleagues to fully implement the GAO's
recommendations and continuing to work to improve recall effectiveness,
if confirmed.
With respect to tribal outreach, CPSC initiated targeted safety
messaging to tribal communities in ten states, including New Mexico.
This campaign includes billboards and radio ads, which reflects the
challenges tribal communities face, including limited Internet
connectivity. If confirmed, I commit to working with you and your
staff, as well as tribal communities, to continue these efforts and to
provide timely recall information in an accessible format.
______

Response to Written Question Submitted by Hon. John Hickenlooper to
Douglas Dziak
Product Safety Standards Development. Voluntary standard
organizations establish product safety standards to protect consumers
who use or purchase a wide variety of products. In some cases, the CPSC
issues mandatory standards through the rulemaking process that either
fill a gap or expand on an existing voluntary standard.

Question. In your view, how should the CPSC decide when to issue
mandatory standards for products where voluntary standards already
exist or are in the process of being developed?
Answer. The Consumer Product Safety Act (CPSA) establishes CPSC's
authority to promulgate mandatory safety standards for consumer
products.
CPSC works with organizations that promulgate voluntary safety
standards. Under the CPSA, the Commission must conduct an analysis to
determine if an existing voluntary standard is likely to eliminate or
adequately reduce the risk of injury. If so, CPSC must also determine
the likelihood of industry's substantial compliance with the voluntary
standard.
If the voluntary standard does not adequately reduce the risk of
injury or substantial compliance is unlikely, the CPSC may proceed to
promulgate a mandatory safety standard.
______

Response to Written Question Submitted by Hon. Ted Cruz to
Douglas Dziak
The Consumer Product Safety Act (CPSA) sets a statutory civil
penalty amount for the CPSC to pursue against violators. Some have
argued that the penalty level is too low and that Congress should raise
it.

Question. What are your thoughts on the current statutory civil
penalty level and what factors should Congress consider when setting a
statutory civil penalty amount?
Answer. CPSC's maximum civil penalty amount is established in
statute. The current maximum penalty is $17,150,000. The statute sets
forth the factors the Commission must consider when assessing civil
penalties.
One purpose of civil penalties is to deter bad conduct. The
Commission has assessed civil penalties on multi-billion-dollar firms.
In such instances, the deterrent effect of the current maximum civil
penalty is likely limited.
Should Congress seek to raise the current statutory civil penalty,
if confirmed, I commit to working with your office and to provide
technical assistance where appropriate.
______

Response to Written Question Submitted by Hon. John Thune to
Douglas Dziak
Question. In 2014, the CPSC proposed a rulemaking implementing
safety standards for Recreational Off-Highway Vehicles (ROVs). Since
that time, that particular rulemaking has been the subject of much
debate and no further action has been taken by the CPSC to finalize the
rules. If confirmed, do you believe the CPSC should terminate that
particular rulemaking?
Answer. CPSC published its ROV rulemaking almost 9 years ago. Such
a lengthy pendency for any rulemaking prolongs uncertainty for all
stakeholders.
For a number of years since its publication, the ROV rulemaking has
been subject to an appropriations requirement that CPSC await a
National Academy of Sciences report regarding these products before
proceeding. I am committed to following the law.
While Commissioners have moved on multiple occasions to terminate
the rulemaking, to date, the Commission has not adopted such a
termination. Should I be confirmed, I am committed to working with my
colleagues on this issue.
______

Response to Written Questions Submitted by Hon. Jerry Moran to
Douglas Dziak
1. CPSC Authority
There has been significant furor over the CPSC's review of gas
stoves this year, which many in Congress view as an agency working
beyond the scope of authority granted to it by Congress. Can you
explain your philosophy when it comes to scoping the authority of
agencies, and what that means for your work at the CPSC, if confirmed?
Answer. The Consumer Product Safety Act defines the scope of the
Commission's authority. Under the Act, two central purposes of the
Commission include protecting the public against unreasonable risks of
injury associated with consumer products and developing uniform safety
standards.
If confirmed, I will follow the law. I believe in CPSC's safety
mission, and these tenets would guide my approach each day as I work
with my colleagues.
2. CPSC Act Section 6(b)
Do you believe Section 6(b) helps or hinders the execution of the
CPSC's mission to protect consumers? Please explain.
Answer. On February 17, 2023, CPSC published a Supplemental Notice
of Proposed Rulemaking on information disclosure under Section 6(b) of
the Consumer Product Safety Act (CPSA). This rulemaking, which
contemplates updates to the agency's regulation interpreting Section
6(b), is currently pending before the Commission. I cannot prejudge a
matter on which I may participate, should I be confirmed.
In general, Section 6(b) sets forth the congressionally-mandated
process to share critical safety information with consumers. With a
health and safety finding, Section 6(b) allows the Commission to issue
a safety notice, known as a unilateral, on an expedited basis. CPSA
also places an affirmative obligation on a company, via Section 15(b),
to report possible safety issues immediately. If a company fails to
provide such reports, the Commission may pursue civil and criminal
penalties. Section 6(b) also functions as a safeguard to ensure the
information obtained under CPSA that the Commission may share is
accurate and fair in the circumstances.
As CPSC Chair Hoehn-Saric has stated, unilateral safety notices are
now a regular part of the Commission's toolkit to keep consumers
informed. The Commission, since the beginning of the Chair's tenure,
has issued over 30 such notices. This significant increase in
unilaterals demonstrates that the Commission may act under 6(b) to warn
the public about product hazards.

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