The last Obama-era holdover on the Federal Trade Commission is declining to step down — even after the Senate confirmed President Donald Trump's pick to replace her.
Maureen Ohlhausen, a Republican, says she'll keep her seat on the five-person commission until either she gets the federal judgeship Trump promised her or serves out her term, which expires in September. That leaves her successor, Delta Air Lines executive Christine Wilson, waiting in the wings, potentially for months.
Wilson, who already quit her corporate job in February in anticipation of serving in the government, was unanimously confirmed by the Senate last week as part of a full complement of five new FTC commissioners, meant to give the agency a clean slate under Trump.
The confusion comes just as the FTC faces major decisions on everything from Facebook’s handling of user data to how to respond to Europe’s aggressive new privacy laws. The fact that the agency now has six people confirmed for seats on the commission when it’s restricted by law to five is another sign of the turbulence that often accompanies high-level staffing moves by the White House.
The seat is Ohlhausen’s to give up, and any White House would be expected to confirm first that she planned to vacate it, said Cal Mackenzie, an expert on presidential appointments who once served as senior adviser to the National Commission on the Public Service chaired by former Federal Reserve Chairman Paul Volcker.
“In the past, you would have had an agreement, especially if someone was nominated for another position, that the person would agree to step down once there was a confirmation of a successor,” said Mackenzie, now a professor of American government at Colby College. “I’m guessing that conversation never took place."
The White House did not return a request for comment. An FTC spokesperson said that Ohlhausen has made plain all along that her plan is to stick it out in the job until her term expires on Sept. 25, unless her court seat comes through first.
The FTC situation is part of a broader trend of staffing drama in the Trump administration — marked by, to pick just a few examples, having two directors for a time at the Consumer Financial Protection Bureau, firing then-Secretary of State Rex Tillerson via presidential tweet, and being forced to abandon the unvetted nomination of presidential physician Ronny Jackson to be the next secretary of Veterans Affairs.
Ohlhausen, a Republican nominee of President Barack Obama, was named acting chairman when Trump took office. For months, she appeared eager to get the job on a permanent basis — even citing Trump’s 1987 memoir “The Art of the Deal” as inspiration. (She made particular note of his advice to “maximize your options and use your leverage.”) But the possibility of serving as full chairman disappeared when, in October, Trump picked Joe Simons, a Washington antitrust attorney, to serve in that role.
In late January, Trump instead nominated Ohlhausen to be a judge on the Federal Claims Court. But that judgeship is still pending, leaving Wilson, the replacement, cooling her jets, as her future FTC colleagues were sworn into office this week.
“When you’ve got a commissioner saying they’re not moving on until they get a new spot, it throws the rest of a [nominee’s] life into turmoil, and presents a massive challenge for people nominated for these jobs,” said Max Stier, president of the Partnership for Public Service, a nonprofit group that advocates for more effective government. “The long delay and uncertainty means its very difficult for people to plan for a transition, and it means a lot of talented people bow out of the process.”
In the Trump White House, jobs come and go quickly: Already filled slots are dangled in front of would-be occupants and then yanked away quickly, and officials swap roles at whiplash speed, making and breaking careers extraordinarily quickly.
Ohlhausen, though, is playing the long game.
She laid out her strategy in the congratulatory statement she issued to four of the nominees confirmed by the Senate for FTC commissioner spots, saying that she looked forward to welcoming them as soon as their new jobs were official. She added about Wilson, her designated replacement: “I also congratulate Christine, who will take my seat if I am so fortunate as to be confirmed by the Senate as a Judge on the U.S. Court of Federal Claims.”
If Ohlhausen does step down before she is confirmed for the judgeship, she is at the mercy of a Senate that has for years refused to approve new members of the Federal Claims Court. During the Obama administration, the main holdup was Sen. Tom Cotton (R-Ark.), who said that because of the court’s workload, "It doesn't need new judges.” Cotton’s office didn't return a request for comment on Ohlhausen's fate.
In the short-term, Ohlhausen's continued tenure at the FTC likely won't have much effect on the agency's decision-making. Since both she and her successor, Wilson, are Republicans, the political balance of the commission won’t meaningfully tip no matter who fills the seat.
Still, that's likely no consolation to Wilson, who resigned her $390,000-a-year job at as Delta’s senior vice president for legal, regulatory and international affairs in February, a week after she was nominated by Trump. If she takes the FTC seat in September, when Ohlhausen's term officially comes to an end, that will have been an eight-month wait from the time she was nominated and five months since she was confirmed for the post.
That sort of uncertainty is something that the White House Office of Presidential Personnel generally tries to avoid, said Rudy Mehrbani, who served as director of the office during the Obama administration. "You don’t want to be surprised and not know how to move forward once people have been confirmed,” Mehrbani said.
If he wanted to move things along, Trump could play hardball.
Under the Federal Trade Commission Act, the president can opt to remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.” But given that Ohlhausen is highly regarded in Washington, that seems unlikely. Another option would be to threaten to withdraw the judgeship if Ohlhausen doesn't depart quickly.
A president abandoning a judicial nominee over a foreseeable logistics challenge would be unexpected. But experts say that there’s little about this president’s approach to filling the ranks of government that fits expectations.
"This is an appointment process largely without precedent," Mackenzie said. "I’ve been looking at this process for 40 years, and it’s never looked the way it looks now.”