Ex-FTC Officials Defend Simons, Say Trump Can’t Oust Him

The chairman publicly stated his intention to uphold the independence of the agency regarding Trump’s social media executive order (see 2008050056). The EO directs the FTC to police unfair and deceptive practices involving online platforms’ content moderation practices, with language targeting Section 230 of the Communications Decency Act (see 200901004).

The White House may no longer be considering NTIA senior adviser Carolyn Roddy as the administration’s nominee to replace FCC Commissioner Mike O’Rielly, communications sector officials said. Trump last month withdrew O'Rielly's renomination to another term (see 2008040061). The White House was believed in August to be on the cusp of announcing Roddy (see 2008130056) and it’s not clear why the administration since cooled to her. Roddy joined NTIA in June and was a part of this administration’s FCC transition team. She was a regional regulatory counsel for Sprint, counsel for Troutman Sanders (now Troutman Pepper) in Atlanta and Satellite Industry Association director-regulatory affairs. Roddy and the White House didn't comment Tuesday.

Mark Jamison, a University of Florida professor who worked with Roddy on the Trump FCC transition team, praises her. Roddy has a “long history of understanding how regulation works because of her extensive experience in the industry and” in government, Jamison said. She would “bring a very practical approach” to an FCC role and “does a really nice job of balancing interests and thinking things through carefully.” Roddy’s recent NTIA role gave her good experience in dealing with broadband, Jamison said. Her portfolio focuses on broadband, spectrum and international.

An FTC member can be removed only for cause, and “cause does not include policy disagreement,” said ex-FTC Chairman William Kovacic, now a George Washington University law professor. The president might regard the “failure to do exactly what he wants as serious conduct, but the law doesn’t,” he said. He noted it’s not clear Trump is retaliating, and it’s not unusual for a chairman to voluntarily leave in the middle of a seven-year term: “The median term is about three years in the modern era.” The FTC and Simons’ office didn’t comment.

If Simons is being “forced out,” it’s an “outrageous way to treat a class act of a government official,” said ex-FTC General Counsel Stephen Calkins, now a Wayne State University law professor: “This could be all about nothing except for interesting speculation about who might be the next chair, and it could be a matter of Simons is planning to step down, and it’s possible it could be much more.”

Calkins discussed a potential FTC candidate in Gail Slater, who was an attorney adviser for Democratic Commissioner Julie Brill and more recently special assistant to the president under Trump. It’s likely Slater has “support from multiple people at the White House,” including National Economic Council Director Larry Kudlow, said U.S. Ambassador Grace Koh, a former special assistant to the president on tech and telecom policy. Slater would be a serious candidate, who understands tech policy and could take a “credible” look at the Trump administration’s goal on Section 230, Koh said. Slater didn’t comment.

It’s possible Simons was planning to leave anyway, noted ex-Consumer Protection Bureau Chief Jessica Rich, a Georgetown Law fellow. One term is a natural breaking point for such a demanding job, she said: former Chairman Jon Leibowitz left after President Barack Obama’s first term. But it would be unusual for a president to oust his own chairman before that appointee was planning to leave, she added: The EO essentially asks the FTC to regulate political speech through the FTC Act, so pushback from Simons is warranted.

Simons did nothing but “serve admirably,” so word about vetting replacement candidates “seems to be intended to exert political pressure” on him, said Crowell & Moring's Chris Cole. Simons knows he can’t be fired, and even if he were, he would have the option to return to the private sector with his integrity, Cole added: It’s “highly implausible” a new chair could get confirmed before the election.

Calkins discussed ways Trump could effectively remove Simons. One possibility is for Trump to demote Simons to commissioner and replace him with Christine Wilson or Noah Phillips, he said: “That would presumably be enough of a slap in the face to Joe that he would resign and thereby create a vacancy.” If he's voluntarily leaving, it would be unusual because there’s a major, pending antitrust case against Facebook, he noted.

Kovacic didn't recall a president ever replacing the chairman with a member of the same party. Filling a vacancy would be a months-long process with an extensive FBI background check and Senate confirmation process, he added: The timeline could extend deep into the fall or new year and potentially a new administration.

“If the assumption is, ‘I’m going to pick someone because they will do as I wish on this executive order,’ that’s a poison chalice,” Kovacic said. “Who’s going to want to do it? That is work you do not want to do.”