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Op-Ed | The American Prospect | January 22, 2021

The Chopra Gambit

2020 Election/TransitionIndependent Agencies
The Chopra Gambit

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On Monday, President Biden announced his intention to name Federal Trade Commissioner Rohit Chopra as the Consumer Financial Protection Bureau’s next director, earning a rare, unqualified cheer from the party’s left flank. Despite serving in the minority on the FTC, Chopra has managed to have a ground-shaking impact, earning a reputation for skillful and creative maneuvering. It is encouraging to see his dogged work for the public interest rewarded and the CFPB land in such capable hands. Just elevating Chopra, however, is not enough. If Democrats are serious about good governance and building their party’s power, they must look to the institutional features that provided Chopra with a platform and honed his governing skills so that, moving forward, he is not such a lonely figure.

That Rohit Chopra has been serving in the federal government for the past several years, as a Trump appointee no less, is thanks to a peculiar, but important, feature of the Federal Trade Commission (one that is common to a handful of other independent agencies). By law, only three of the five panel slots on the FTC can be from the same party as the president at any given time. The remaining seats traditionally go to members of the major party that is not in the White House, with the Senate leader for that party making the selections. To smooth the confirmation process, Republican and Democratic nominees are generally (although not always) paired, so minority-party commissioners are not stranded.

While minority-party commissioners rarely dictate agency rulemaking or control enforcement, it would be a mistake to consider them unimportant or weak. The platform an agency commissioner’s position provides can be used to great effect, as Chopra so deftly demonstrated. While he and his fellow Democratic commissioner Rebecca Kelly Slaughter were routinely overruled in votes on merger cases and penalties, Chopra’s famous Twitter threads on FTC action made information about an often opaque agency far more accessible.

Just recently, for example, Chopra highlighted an FTC action against debt collectors who “park” fake debts on consumer credit reports, which are only discovered when those consumers apply for a loan. The FTC settled charges in this case without any assistance for victims or even a bar on the practice, as Chopra explained in detail.

These efforts put the stakes of FTC decisions into clear and relatable terms. That increased public engagement, and built pressure on Republican commissioners to make the right call. This was occasionally successful. Some recent Chopra victories include forcing executives to personally pay damages when their companies illegally tout “Made in the USA” on their products, and ordering health insurance companies to turn over data to see the impact on prices from consolidation among physician staffing groups and provider networks.

Even when Chopra’s persistence didn’t flip necessary votes, it wasn’t worthless. Increasing public engagement with the FTC will have long-tail benefits. Furthermore, Chopra’s official dissents created a legal record on which future Democratic majorities can build as they reorient the commission.

In other words, Chopra’s presence on the FTC has produced identifiable benefits for the anti-monopoly movement and the public as a whole. It also happens to have been an excellent proving ground for his next gig. While Chopra will soon have the power to set policy and direct agency actions as the CFPB’s director, he will continue to face daunting obstacles. The agency he is inheriting is much weaker than the one he left in 2015. He will face depleted staffing levels, low morale and, potentially, holdovers from the Trump administration ready to sabotage the agency’s more pro-consumer agenda. Seeking out and deploying creative actions, appealing to the public, and rendering opaque agency processes more accessible will all be critical tools, with which Chopra is quite familiar.

While the CFPB may be a particularly severe case of Trumpian destruction, the challenges awaiting incoming appointees at other agencies and the strategies that will be useful to clearing these hurdles out of the way are not so different from those described above. Unfortunately, there are not enough Rohit Chopras around to manage them all, nor as many similarly situated officials as there should be.

Without drawing much attention, President Donald Trump and former Senate Majority Leader Mitch McConnell quietly undermined Democratic nominations to independent regulatory commissions like the Federal Trade Commission. At times, that meant Trump bucking convention by simply refusing to nominate the people former Minority Leader Chuck Schumer recommended. At other times, McConnell refused to give the Democrats who were nominated a vote. The combined antics left supposedly bipartisan commissions out of balance for months and years at a time, sometimes without even a single Democrat. Groups like mine (the Revolving Door Project) and Demand Progress consistently raised the alarm about this quiet attack, insisting that Schumer fight for Democratic nominees. Schumer, however, did not publicly acknowledge the issue or seek grassroots reinforcements to wage a pressure campaign against McConnell and other members of his caucus.

Just as minority-party commissioners can be impactful, so too can their absence inflict real harm. Over the past few years, the lack of Democratic officials on many agency boards has made the road to Republican-led corporate giveaways at these agencies even easier than it needed to be. And Trump and McConnell’s attack will continue to be consequential moving forward. Fewer Democratic commissioners means fewer experienced Democrats with firsthand knowledge of the Trump administration to elevate. While not every hypothetical Democratic commissioner would have been as impactful as Rohit Chopra, it does not seem outlandish to suggest that many would be similarly well positioned to effectively steer damaged agencies.

New commissioners not already inside government will be less familiar with the exact nature of the damage inflicted under Trump and, therefore, less prepared to set to work reversing it. Without a library of dissenting opinions, investigations, and reports on which to draw, they will also be in a weaker position to launch new initiatives. That should not be read as an excuse for inaction, of course. But agencies like the Federal Deposit Insurance Corporation (FDIC), the Securities and Exchange Commission (SEC), the National Labor Relations Board (NLRB), and others have tremendous power to advance the public interest; any delay in that project will be costly.

We obviously can’t rewind the clock to get Democrats into seats on independent regulatory commissions. But lawmakers can take lessons from the mistakes and the successes of the past four years so as to avoid repeating them moving forward. For Senate Democrats, that means recognizing the importance of minority-party commissioners and resolving to fight to have them promptly nominated and confirmed in the future. For the Biden administration, it will mean making independent agency nominations a top priority, and putting real political energy behind their confirmations. And for public-interest-minded groups and activists, it must mean applying pressure to ensure that Biden appoints energetic, creative, and committed individuals to these consequential spots and that, once installed, those officials live up to ambitious expectations. It must also mean uplifting those officials who proved the importance of minority-party commissions, like Rohit Chopra.

Resolving to do these things now will have immediate payouts for the Biden administration. A Democratic majority on the FTC, for example, could begin breaking up Big Tech, a move that is sure to pay big political dividends. Similarly, a Democratically controlled Postal Service Board of Governors could fire Louis DeJoy and launch basic postal banking. These are worthy reasons, in and of themselves, to pay greater attention to independent agencies. But if Democrats are serious about building their party’s power and improving their presidents’ chances of delivering on campaign promises, they will not neglect these seats again.

2020 Election/TransitionIndependent Agencies

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