Former state AGs: The case for Trump's leading FTC candidate
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A recent article quoting an unnamed “source close to the FTC” asserts that Utah State Attorney General Sean Reyes would have trouble fulfilling the duties of chairman of the U.S. Federal Trade Commission because he received publicly reported political contributions to support his campaigns to be elected attorney general. As former state AGs, we feel compelled to refute such assertions as harmful to consumers, antithetical to our democratic system, and contrary to real-world experience.

State AGs are empowered and entrusted to enforce a wide range of laws, including consumer protection and competition laws. They actively pursue on a regular basis individuals and all varieties and sizes of businesses that they believe have violated such laws. Indeed, state AGs today have emerged as the country’s preeminent consumer protection and competition experts, not merely within their own states, but on a national scale in collaboration with each other and with federal agencies. Few in government have accrued such a range of expertise and experience. Consumers are well-served when state AGs bring that experience to higher office, whether that be the governor’s mansion, Congress, courts, or federal regulatory agencies, especially the FTC.

State AGs in 43 states and the District of Columbia are chosen by the voters. The philosophical rationale for this goes back to the Founders themselves. As Alexander Hamilton expressed in Federalist 68, the power and influence wielded by an executive officer means such an individual “should be independent for his continuance in office on all, but the people themselves.” The election of state AGs, who serve simultaneously as the chief law enforcement officers, consumer protection advocates, and legal counsel for their states, subjects their considerable power to the ratification of the electorate — the most fundamental check on authority that exists. As a consequence, elections also require candidates to campaign for votes. In our current system, that means raising the funds for such campaigns — from individuals, associations, unions, and, yes, businesses. The realities of elections should not be the basis for disqualifying a public servant absent an actual conflict of interest in a real — not hypothetical — case.

Speaking from personal experience, we ran for office and had to campaign and fundraise before being elected state attorney general in Kentucky, Oklahoma, and Virginia. That experience never impacted execution of our duty to protect consumers and actively pursue those who broke state laws. This is true of our former colleagues, including Reyes, who we know personally and professionally. Reyes has himself been active and diligent in enforcing Utah laws — even going so far as to persuade the legislature to create a public database of mortgage schemers, insider traders, and other white-collar criminals — as well as joining his colleagues from other states in national actions against large corporations.

The same can be said of the commitment of the hundreds of other state AGs, past and present, who have had to stand before the voters and ask for their trust. We have every confidence that if Reyes were faced with a situation giving rise to an actual conflict of interest in a case before the FTC which impacts his ability to act impartially, he would handle it appropriately, consistent with the commitment to duty and the public trust that he has displayed his entire career.

Citizens are best served when qualified, trustworthy officers are given responsibility for upholding the law. Elections and their attendant political campaigns are the way Americans have identified such individuals since the Republic’s founding. In the absence of an actual conflict, the assertion that being a candidate for elected public service should become a barrier to someone being considered for a federal regulatory appointment deprives consumers of qualified advocates, ignores the intent of the democratic process, and runs contrary to real-world evidence. It should be unequivocally rejected.

Jerry Kilgore is a partner at Cozen O’Connor. He served as Attorney General of Virginia from 2002 to 2005.

Jack Conway is a partner at Dolt, Thompson, Shepherd & Conway. He served as Attorney General of Kentucky from 2008 to 2016.

Michael Turpen is a partner at Riggs, Abney, Neal, Turpen, Orbison & Lewis. He served as Attorney General of Oklahoma from 1983 to 1987.


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