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Wright nomination on track despite Democrats' reservations

by William McConnell In Washington  |  Published December 5, 2012 at 8:35 AM
Joshua Wright, nominee for the open Republican seat on the Federal Trade Commission is expected to be approved by the Senate Commerce Committee next week, despite being admonished by the panel's chairman and other committee Democrats for his ties to groups with a "clear anti-regulatory agenda."

The committee is tentatively scheduled to vote next week on a slate of federal nominees, including Wright, who were given a hearing by the Commerce Committee Tuesday.

Committee Chairman Jay Rockefeller, D-W.Va., who did not attend Tuesday's hearing, expressed his reservations about Wright in a statement before the hearing. Wright also is opposed by activist group Consumer Watchdog. The criticism of Wright is unlikely to derail his appointment, however, because Republicans would almost certainly retaliate by blocking the pending nomination of Arnold & Porter LLP partner William Baer, a Democrat, to be head of the Department of Justice's antitrust division.

President Obama nominated Wright, George Mason University law professor, on Sept. 10 to fill the seat of retiring Republican Tom Rosch. Wright has produced not only a body of writing on antitrust and consumer protection issues as well as the stream of academic papers expected of a university professor, but also numerous blogs and Twitter messages on competition matters and other areas of law and economics. Wright earned his law degree from UCLA in 2002 and his Ph.D. in economics there a year later. Wright is a conservative who has made numerous criticisms of previous FTC and Department of Justice actions against high-profile mergers and other types of competitive conduct and against activists' many calls for tougher action on the antitrust front.

In one blog post he labeled the DOJ's attempt earlier this year to impose licensing terms on Google Inc.'s purchase of Motorola Mobility Holdings Inc.'s patent portfolio a "problematic attack on property rights through merger review." Similarly, he said the DOJ's finding that AT&T Inc.'s attempt to acquire T-Mobile USA Inc. would harm competition was "embarrassingly confronted" by a rise in the stock price of Sprint Nextel Corp., an AT&T rival. If the deal truly harmed competition, Sprint as well as AT&T would have been able to raise prices after the merger. Therefore, Wright reasoned, if the deal had truly been anticompetitive, Sprint's stock should have fallen when the merger was stopped.

These kinds of comments were not received kindly by the Commerce Committee's Democrats. "In his academic writing -- some of which has been funded by groups with a clear anti-regulatory agenda -- Mr. Wright makes it very clear that he believes that market forces can solve almost any consumer protection problem," Rockefeller said in his statement. "While it is easy to espouse ideas like this from the academic ivory tower, serving as an FTC commissioner is a very different job. As a commissioner, his job will be to enforce the law as it is written, not as he theorizes it should be. In the real world, some business practices hurt consumers and his job is to protect the consumers, not make excuses for the businesses."

Sen. Barbara Boxer, D-Calif., said she was troubled by other comments of Wright's that she said indicate that "you doubt the FTC's mission." Wright responded that "I believe greatly in the FTC fundamental mission of protecting consumers." He said the comments she was referring to focused on a subset of FTC actions, basically the FTC's power to try competition lawsuits in agency administrative courts based on its power to combat "unfair" and "deceptive" tactics under Section 5 of the FTC Act. Wright said his research shows that decisions reached in FTC administrative proceedings do not withstand appeal better than decisions reached by federal district judges.

Boxer said she would pursue the issue further in written questions. She and other Democrats also urged Wright to explain more clearly in follow-up communications the extent to which he would recuse himself in FTC proceedings now in progress targeting Google and other companies that have funded think tanks and research in which Wright has been associated. Boxer also urged him to support aggressive investigation of collusion among gasoline producers in California.

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Tags: Arnold & Porter LLP | AT&T Inc. | Barbara Boxer | Consumer Watchdog | Department of Justice | DOJ | Federal Trade Commission | FTC | FTC Act | Google Inc. | Jay Rockefeller | Joshua Wright | Motorola Mobility Holdings Inc. | President Obama | Senate Commerce Committee | Sprint Nextel Corp. | T-Mobile USA Inc. | Tom Rosch | William Baer

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