The FTC’s Big Tech Revolving Door Problem
By Rick Claypool
Revolving door conflicts are rampant at the U.S. Federal Trade Commission, where most top officials become lobbyists and lawyers representing major technology companies when they leave – or bring Big Tech conflicts with them when they arrive to work at the agency.
Public Citizen found that just over 75 percent of top FTC officials (31 out of 41) over the past two decades have either left the agency to serve corporate interests confronting FTC issues, joined the agency after serving corporate interests on these issues, or both. More than 60 percent of the officials studied (26 out of 41) have revolving door conflicts of interest involving work on behalf of the technology sector.
This report examines revolving door conflicts among current and former FTC commissioners and directors of its Bureau of Consumer Protection and its Bureau of Competition for the past two decades. The regulatory revolving door conflicts described here are defined broadly as instances when individuals employed defending corporate interests from regulatory enforcement become regulatory enforcement officials, or when regulatory enforcement officials leave public service and become employed as defenders of corporate interests.
These endemic conflicts may help explain the FTC’s chronic reluctance to strictly enforce consumer protection and antitrust laws, and should serve as a call to arms for supporters of strong, independent consumer protections and enforcement against corporate monopolists and wrongdoers.
The revolving door conflicts are not evenly distributed across the agency’s leadership. Of the 25 FTC commissioners, including chairs, who have served over the past two decades, two-thirds (17) have corporate revolving door conflicts. More than half (13) have tech sector revolving door conflicts, while others have represented or were hired by companies facing FTC investigations, including Amway, Herbalife, Proctor & Gamble and Teva Pharmaceutical Industries. (See Tables 1 and 2.)
Six of the ten Democratic commissioners who served during the past two decades have revolving door conflicts involving the technology sector, as do seven of the 14 Republican commissioners. Three additional Republican and one independent commissioner all have non-tech corporate revolving door conflicts.
Remarkably, all nine officials who have served as a director of the Bureau of Competition since the late 1990s have revolving door conflicts with the technology sector. (See Table 3.) At the Bureau of Consumer Protection, six of the seven officials who served over the same time period have corporate revolving door conflicts, four of which include technology sector clients. (See Table 4.)
The revolving door is one of the most pernicious influence-peddling tools abused by corporations and wealthy special interests. It undermines the integrity of the governmental process in three ways:
- Business and special interest groups may “capture” a federal regulatory agency by getting their own personnel appointed to key government posts.
- Public officials may be influenced in official actions by the implicit or explicit promise of a lucrative job in the private sector with an entity seeking to shape public policy, or, more subtly by the prospect of future employment.
- Public officials-turned-lobbyists will have access to lawmakers and regulatory officials that is not available to others, access that can be sold to the highest bidder among industries seeking to lobby.
Conflicts involving the FTC and the technology sector are particularly concerning given the FTC’s jurisdiction over the industry and light approach to regulation on privacy, consumer protection issues and antitrust issues involving tech firms.
Since 2010, several major technology sector firms have recently been subject to FTC investigations over antitrust, consumer protection and especially data privacy concerns, including Facebook, Google, Apple and Uber. In February, the FTC’s Bureau of Competition announced the creation of a new task force to monitor competition in technology markets. In March, the FTC’s Bureau of Consumer Protection launched an investigation into the privacy practices of major Internet broadband service providers, including AT&T, Comcast, Google, T-Mobile and Verizon.
The FTC’s failure to effectively police the technology sector is clear. The transfer of 87 million Facebook user records to Cambridge Analytica while Facebook was operating under a consent order with the FTC evidences the failure of the agency to prevent abuses. The FTC failed to enforce its consent order against Google even after then-FTC chair Jon Leibowitz warned that Google’s consolidation of Internet services would be bad for consumers. Uber was found twice in violation of a consent order and the FTC imposed no fines. On the antitrust front, the FTC failed to block mergers that stifled competition and innovation, including Google’s acquisition of DoubleClick and Nest Labs and Facebook’s acquisition of WhatsApp and Instagram.
The revolving door conflicts and the FTC’s history of deference to industry are an important backdrop as Congress considers new proposals to regulate the tech sector and protect consumer privacy. Enhanced FTC rulemaking and enforcement powers will not be enough to curb technology company abuses if pervasive revolving door conflicts create an agency culture that is solicitous of the tech sector.
In light of these problems and to ensure that the public is protected from technology sector corporations that violate privacy protections and abuse access to consumer data, Public Citizen supports the creation of a new data protection agency with a mission to enforce privacy protections and secure digital rights. If new authority is to be lodged at the FTC, then, at minimum, tighter restrictions should be placed on the FTC-tech sector revolving door.
Table 1: Corporate revolving door conflicts of six FTC chairs. Technology sector conflicts are in *bold.*
|Name||FTC Titles||Revolving Door Conflicts|
|Joseph J. Simons||Chair (R), Competition Bureau Director||After Simons’ service as the FTC’s Competition Bureau director from 2001 to 2003, he joined the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he co-chaired the firm’s Antitrust Group. His clients included Microsoft, Sony, Sharp and Mastercard. In 2018, he returned to the FTC as Trump’s nominee for commission chair, a position he currently holds.|
|Maureen K. Ohlhausen||Chair (Acting) (R), Commissioner||Ohlhausen was sworn in as FTC commissioner in 2012 and served as acting chair under Trump from 2017 to 2018. Before joining the FTC, she was a partner with Wilkinson Barker Knauer, a firm specializing in communications and technology law. Afterward, she joined the Baker Botts as a partner and co-chair of the law firm’s antitrust practice. Her biography on the firm’s web site emphasizes her privacy and technology expertise.|
|Edith Ramirez||Chair (D), Commissioner||Ramirez became an FTC commissioner under Obama in 2010 and served as chair from 2013 to 2017. That same year she joined the law firm Hogan Lovells, where she became a partner and co-chair of the firm’s Antitrust, Competition and Economic Regulation practice. In 2019 she reportedly helped represent Google and its YouTube subsidiary in a successful effort to block a class action lawsuit alleging the corporation had violated children’s privacy protections (which are under the FTC’s jurisdiction).|
|Jon Leibowitz||Chair (D), Commissioner||In 2004, Leibowitz was sworn in as an FTC commissioner under Bush. Obama named him chair of the commission in 2009, and he served until 2013. Afterward he represented Herbalife and subsequently joined law firm Davis Polk & Wardwell, where his clients include Comcast and Syngenta, a pesticide corporation. Leibowitz co-chairs the 21st Century Privacy Coalition, a telecom industry-backed lobbying effort focused on exempting the industry from data privacy requirements.|
|Deborah Platt Majoras||Chair (R)||Majoras joined the Antitrust Division of the DOJ in 2001 from multinational corporate law firm Jones Day, where she was a partner in the firm’s antitrust practice. A Bush nominee, she was sworn in as FTC chair in 2004. She left the FTC in 2008 and that year became Proctor & Gamble’s general counsel. Three years prior, the FTC under Majoras had approved P&G’s $57 billion acquisition of Gillette.|
|Timothy J. Muris||Chair (R), Competition Bureau Director, Consumer Protection Bureau Director||Muris served in multiple leading roles at the FTC, including years two years directing the Competition Bureau and two years directing the Consumer Protection Bureau under Reagan. He served as commission chair from 2001 to 2004. He has worked for several law firms and currently has an antitrust, privacy and security practice with Sidley Austin. In 2010 Muris reportedly worked representing Facebook in Washington, D.C., on privacy-related matters.|
Table 2: Corporate revolving door conflicts of 11 FTC commissioners. Technology sector conflicts are in *bold.*
|Name||FTC Titles||Revolving Door Conflicts|
|Christine Wilson||Commissioner (R), Chief of Staff (Muris)||Wilson has been an FTC commissioner since 2018. Immediately prior to joining the FTC, she was an executive vice president at Delta Air Lines with an emphasis on legal and regulatory affairs. From 2001 to 2002 she served in the FTC as Muris’ chief of staff. She then worked as a partner with law firms O’Melveny & Myers (2004-2011) and Kirkland & Ellis (2011-2016). Other clients from her time in private practice include pharmaceutical companies Boehringer Ingelheim, Bristol-Myers Squibb and Teva and finance corporations New Mountain Capital and the Blackstone Group.|
|Terrell McSweeny||Commissioner (D)||McSweeny served as an FTC commissioner from 2014 to 2018. Prior to joining the FTC, she was a high-ranking member of then-Senator Joe Biden’s staff and subsequently served in the Obama White House. She served in the DOJ’s antitrust division before her nomination to the FTC. In 2018 she joined the law firm Covington & Burling, whose clients include Facebook, Uber and Qualcomm, as a partner in its Data Privacy and Cybersecurity Group and its antitrust practice. Her biography on the firm’s web site notes that technology, cybersecurity and privacy issues are a significant portion of her practice.|
|Julie Brill||Commissioner (D)||Brill was an FTC commissioner from 2010 to 2016. She left the FTC to become a co-director of Hogan Lovells’ privacy and cybersecurity practice, a position she held for about a year before she was hired in 2017 to be Microsoft’s deputy general counsel for privacy and regulatory affairs.|
|Joshua D. Wright||Commissioner (R), Bureau of Competition Scholar in Residence||From 2013 to 2015, Wright served as an FTC commissioner. Previously he was a scholar in residence at the agency’s Bureau of Competition from 2007 to 2008. Before, between and after joining the FTC, Wright was a law professor at George Mason University, where he currently is employed at the Scalia Law School. The Intercept reported that before joining the FTC in 2013, Wright received Google funding for at least four academic papers that supported Google’s claims the company did not violate antitrust laws. As a commissioner, Wright recused himself from Google-related cases for two years. Since 2016, he also has been of counsel to the antitrust practice of law firm Wilson Sonsini Goodrich and Rosati, which represented Google against the FTC’s 2011-2013 investigation into whether the company violated antitrust law. The practice’s other clients include Twitter, Live Nation, Netflix, Coca-Cola, Glencore and Pixar.|
|J. Thomas Rosch||Commissioner (R), Bureau of Competition Director||Rosch, now deceased, directed the FTC’s Bureau of Competition from 1973 to 1975 and returned to the FTC in 2006 as a commissioner, a position he held until 2013. Before rejoining the FTC, Rosch was a founding partner in law firm Latham & Watkins’ antitrust practice. In that capacity he represented Intel and in 2004 he successfully defended Oracle‘s bid to take over PeopleSoft, which the DOJ’s antitrust division sought to block.|
|Pamela Jones Harbour||Commissioner (I)||Harbour served as an FTC commissioner from 2003 to 2010. Afterward, she worked as a partner in the antitrust and privacy/data security practices of law firms Fulbright & Jaworski and Baker & Hostetler. In 2014, she became the senior vice president and legal officer for Herbalife, which the FTC started investigating that same year. In 2016 the FTC required Herbalife to pay $200 million to harmed consumers.|
|Orson Swindle||Commissioner (R)||Swindle was an FTC commissioner from 1997 to 2005. Afterward, he joined the law firm Hunton & Williams, where he was senior policy advisor for the firm’s Centre for Information Policy Leadership. The Centre’s corporate members include Amazon, Dropbox, Facebook, Google, IBM, Oracle, PayPal, Qualcomm, Twitter and Uber.|
|Thomas B. Leary||Commissioner (R)||Leary served as an FTC commissioner from 1999 to 2005. In the 1970s, he was an attorney representing General Motors. Through the 1980s and 90s Leary was a partner with the antitrust practice of law firm Hogan and Hartson, which he rejoined after leaving the FTC. In 2013 he authored a USA Today op-ed praising the FTC’s decision not to bring an enforcement action against Google, a client of his firm.|
|Mozelle W. Thompson||Commissioner (D)||From 1997 to 2004, Thompson served as an FTC commissioner under Clinton and Bush. Afterward, he started Thompson Strategic Consulting, a capacity in which he advises companies including Facebook, the Walt Disney Company, and Playdom. Thompson also served as a member of Facebook‘s advisory board for ten years and on Samsung‘s advisory board for three years.|
|Mary L. Azcuenaga||Commissioner (R), Assistant General Counsel, Assistant Director of the San Francisco Regional Office, Assistant to the Executive Director, Litigation Attorney||Azcuenaga served in multiple leadership positions within the FTC before Reagan nominated her to become a commissioner in 1984. Bush reappointed her in 1991, and she served through 1998. After the FTC she became a partner in law firm Baker & McKenzie and later an independent consultant with an emphasis on “competition and regulatory reform,” according to her LinkedIn profile. Her private practice clients include pharmaceutical companies Roche and Applera.|
|Christine A. Varney||Commissioner (D)||Varney served as an FTC commissioner under Clinton from 1994 to 1997 and under Obama led the DOJ’s antitrust division (2009-2012). She was a partner at Hogan & Hartson before and after her time at the FTC, when she led the firm’s Internet practice. Varney’s clients included eBay, DoubleClick, AOL, Synopsys, Compaq Computer, Gateway, and Netscape (in the Microsoft-AOL antitrust case). She later joined Cravath, Swaine & Moore where she represented AT&T in its merger with Time Warner, which the DOJ’s antitrust division in Feb. 2019 failed to block.|
Table 3: Corporate revolving door conflicts of 9 directors of the FTC’s Bureau of Competition. Technology sector conflicts are in *bold.*
|Name||FTC Titles||Revolving Door Conflicts|
|D. Bruce Hoffman||Competition Bureau Director, Associate/Deputy Competition Bureau Director||Since 2017, Hoffman has served as the director of the FTC’s Bureau of Competition, where he recently launched a task force to monitor technology markets. He previously served in the bureau as associate director and then deputy director between 2001 and 2003. After the FTC he spent 12 years at law firm Hunton & Williams and one year at Shearman & Sterling, in both instances leading the firms’ competition practices. Financial disclosures show Hoffman served 62 corporate clients while in private practice, including Google and Yahoo.|
|Deborah “Debbie” L. Feinstein||Competition Bureau Director, Assistant Bureau Director, Attorney Advisor||Debbie Feinstein directed the FTC’s Bureau of Competition from 2013 to 2017. She also worked in the bureau between 1989 and 1991. She worked for the law firm Arnold & Porter before she joined the FTC, and she returned to the firm after leaving the agency in 1991 and again after leaving the agency in 2017. She now is a partner leading the firm’s antitrust practice. Her clients include Cisco Systems, Sony, General Electric, NBC Universal and Boston Scientific.|
|Richard A. Feinstein||Competition Bureau Director, Assistant Bureau Director||Richard Feinstein directed the FTC’s Bureau of Competition from 2009 to 2013. He previously worked as the bureau’s assistant director from 1998 to 2001. Between his time at the FTC, he was a partner with the law firm Boies, Schiller & Flexner, which he rejoined after 2013. His private practice clients have included Cisco Systems and Dollar General.|
|David Wales||Competition Bureau Director (Acting)||Wales served as acting director of the FTC’s Bureau of Competition from 2006 to 2009. Earlier he served in the antitrust division of the Bush administration’s DOJ for one year. Before, between and after his government service, Wales worked for several law firms, most notably Shearman & Sterling, where he spent about seven years, and Jones Day, where he spent more than eight years. He currently is a partner with Skadden, Arps, Slate, Meagher & Flom. His private practice clients include CommScope, SiriusXM, General Electric, Boeing, Proctor & Gamble, Scotts Miracle-Gro, Newell Brands and Parker Hannifin.|
|Jeffrey Schmidt||Competition Bureau Director, Attorney Advisor||Schmidt directed the FTC’s Bureau of Competition from 2005 to 2008 and previously worked at the FTC from 1985 to 1987. Schmidt currently is a partner with the law firm Linklaters and previously was a partner with firms Pillsbury Winthrop Shaw Pittman and Pillsbury Madison & Sutro. From 2001 to 2002, Schmidt was the chief legal officer for Transora, a business-to-business electronic marketplace formed by consumer product manufacturers including Proctor & Gamble, Coca-Cola, General Mills, and Nestle.|
|Susan Creighton||Competition Bureau Director, Competition Bureau Deputy Director||Creighton led the FTC’s Bureau of Competition as its deputy director from 2001 to 2003 and then as its director from 2003 to 2005. Before the FTC she spent 14 years as a partner with the law firm Wilson Sonsini Goodrich & Rosati, which she rejoined as co-chair of the firm’s antitrust practice after departing the FTC. Creighton’s clients from before she joined the FTC include Netscape and software companies such as Autodesk and Borland. After she left the FTC, she was Google‘s lead outside counsel for the FTC’s 2011-2013 investigation into the company. She also represented Netflix regarding the thwarted merger of Comcast and Time Warner Cable.|
|Molly S. Boast||Competition Bureau Director||Boast directed the Bureau of Competition between 1999 and 2001 and served as deputy assistant attorney general of the DOJ’s antitrust division between 2009 and 2011. After exiting government service, Boast joined law firm Debevoise & Plimpton and represented the companies behind the video game Grand Theft Auto (Take Two Interactive Software and Rockstar Games) against a civil suit the FTC brought for the companies’ failure to warn consumers about graphic nudity in the game. In 2014, Boast joined WilmerHale as a partner in its antitrust practice and represented Baker Hughes, an oilfield services corporation, in its thwarted merger with Halliburton, which the DOJ sued to block. Boast also represented Monsanto in its successful merger with Bayer in 2018.|
|Richard G. Parker||Competition Bureau Director, Senior Deputy Director||Parker served as senior deputy director and then director of the FTC’s Bureau of Competition from 1998 until 2001. Afterward he became an antitrust partner with law firm O’Melveny & Myers, where he represented clients facing antitrust enforcement from the FTC and the DOJ, and in other litigation matters, including eBay, Honeywell, Hertz, ExxonMobil, Capital One, United Airlines, US Airways and Sysco. He became a partner in the law firm Gibson Dunn in 2018.|
|William “Bill” Baer||Competition Bureau Director||Baer directed the FTC’s Bureau of Competition under Clinton, from 1995 until 1999. Afterward he joined the law firm Arnold & Porter, where he was a partner for 13 years until returning to government to serve in the antitrust division of the Obama administration’s DOJ from 2013 until 2017. He then returned to Arnold & Porter. Among his private practice clients were Intel, Micron Technology, Cisco Systems, General Electric and Monsanto.|
Table 4: Corporate revolving door conflicts of 6 directors of the FTC’s Bureau of Consumer Protection. Technology sector conflicts are in *bold.*
|Name||FTC Title||Revolving Door Conflicts|
|Andrew Smith||Consumer Protection Bureau Director, Bureau Assistant Director||Smith has been the director of the FTC’s Consumer Protection Bureau since 2018. Under Bush, he served assistant director of the bureau, between 2001 and 2005. Smith was an associate at the law firm Hogan Lovells prior to joining the FTC for the first time, and have his departure became a partner with Morrison & Foerster. In 2014 he became a partner with Covington & Burling, where he worked until returning to FTC. In private practice, Smith amassed an extraordinary list of more than 120 corporate clients, including Uber, Equifax and payday lender executive Scott Tucker, all of whom recently were subjects to FTC investigations. Additional notable technology sector clients include Facebook, Twitter, LinkedIn, Microsoft, Oculus VR, PayPal, Riot Games and the Consumer Data Industry Association and data brokers such as Experian, Epsilon and CoreLogic.|
|Thomas B. Pahl||Consumer Protection Bureau Director (Acting), Assistant Director to Financial Practices and Advertising Practices, Attorney Advisor, Staff Attorney||Pahl served as the FTC’s acting director of the Bureau of Consumer Protection from 2017 to 2018, during the Trump transition. He currently is a policy associate director in the Consumer Financial Protection Bureau. Between 1990 and 2013, he served in a number of roles at the FTC and from 2013 to 2016 was a managing counsel in the CFPB. From 2016 to 2017, he was a partner with law firm Arnall Golden Gregory, where his clients included technology companies (Intuit and T-Mobile), data brokers (Equifax and Intersections Inc.), a for-profit education corporation (Education Management Corporation) and debt collectors (ARS National Services and American Credit Resolution).|
|Lydia B. Parnes||Consumer Protection Bureau Director, Bureau Deputy Director||Parnes served as deputy director of the FTC’s Consumer Protection Bureau from 1993 to 2004, when she became the bureau’s director, a position she held until 2009. Afterward she joined the law firm Wilson Sonsini Goodrich and Rosati, where she is a partner and co-chair of the firm’s privacy and cybersecurity practice. The firm represented Google against the FTC’s 2011-2013 investigation into whether the company violated antitrust law. Clients of the practice she co-chairs include Google, Netflix, Twitter, Tesla, Lyft, Yahoo!, Cisco, LifeLock, SurveyMonkey, Square, Dropbox, SalesForce, Microchip Technology, GoDaddy, NetApp and Dell.|
|J. Howard Beales, III||Consumer Protection Bureau Director, Bureau Associate Director for Policy and Evaluation||A conservative economist, Beales directed the FTC’s Consumer Protection Bureau between 2001 and 2004 and worked in the bureau for four years in the Reagan administration. Beales consulted for tobacco company R.J. Reynolds and authored a study concluding that ads featuring the Joe Camel character did not encourage children to smoke. Since leaving the FTC, he has primarily worked as a professor at George Washington University. Other corporate clients Beales served in private practice include, according to his curriculum vitae, America Online, Walt Disney Company, Pepsico, American Express, Visa, Exxon Mobil and Primerica. More recently, Beales has acknowledged the financial support of his work from the Association of National Advertisers and the Digital Advertising Alliance, a self-regulatory consortium of businesses engaged in online advertising including Amazon, Facebook, IBM, Google, LinkedIn, Microsoft, Netflix, Comcast and Yahoo.|
|Joan “Jodie” Z. Bernstein||Consumer Protection Bureau Director||From 1995 to 2001, Bernstein directed the FTC’s Consumer Protection Bureau. In subsequent private practice, she worked for law firms Bryan Cave and Kelley Drye. Before and after serving in the FTC, Bernstein was a senior attorney for Chemical Waste Management and its parent company, Waste Management. When the FTC sought to regulate multi-level marketing firms, she reportedly lobbied to influence these efforts on Amway’s behalf.|
Rick Claypool is a research director for Public Citizen’s President’s Office.