Voluntary Trade Council Calls for Removal of Federal Trade Commissioner Pamela Jones Harbour

Monday, March 7, 2007 - Arlington, Virginia – President Bush should fire Federal Trade Commission member Pamela Jones Harbour for her recent decision to undermine the administration’s position in a landmark antitrust lawsuit, the president of the Voluntary Trade Council said today.

On February 26, 2007, Harbour, who was appointed to office by President Bush in 2003, sent an “open letter” to the U.S. Supreme Court. In her letter, Harbour asked the Court to reject an appeal brought by Leegin Creative Leather Products, Inc. Leegin is challenging the Court’s longstanding precedents that categorically forbid vertical resale price maintenance—contracts where a retailer agrees to sell a product at or above a price set by the manufacturer. Harbour said the Court should not allow defendants in such cases, like Leegin, to present economic evidence that such agreements are beneficial.

Harbour’s letter, however, contradicts the official position of the Bush administration. On January 22, Solicitor General Paul D. Clement filed a brief “expressing the view of the United States” that supported Leegin’s appeal and rejected the “per se” rule supported by the respondent and Harbour. Clement’s brief was co-signed by the head of the Justice Department’s Antitrust Division, Thomas O. Barnett, and joined by the Federal Trade Commission through its general counsel, William Blumenthal. The Commission voted 3-2 to join the brief; Harbour and fellow Commissioner Jon Leibowitz dissented. Solicitor General Clement is also expected to appear before the Court at oral arguments on March 27 in support of Leegin.

Harbour’s “open letter,” while written as a legal brief, was not legally filed with the Supreme Court under its rules governing amicus briefs. Nor does the letter indicate that Harbour properly served the parties to the case, as the Court’s rules also require. While a footnote in the letter acknowledges Harbour is not speaking for the Commission, the letter was sent on stationary bearing the FTC’s official seal, and it is likely that Harbour used her Commission staff to research and draft the letter, which was published on the FTC’s website.

Skip Oliva, president of the Voluntary Trade Council, a nonprofit group that monitors the FTC, said Commissioner Harbour’s illegal, ex parte communication with the Supreme Court warranted her immediate removal from office. “Harbour misused her office to undermine the statutory authority of the Solicitor General—and by extension, the President—to speak for the administration before the Supreme Court. Her only justification was that she personally disagreed with the decision of her fellow commissioners to join the solicitor general’s brief. But it is not up to Pamela Jones Harbour to decide which Commission decisions are binding on her.”

The Federal Trade Commission Act only permits a commissioner to be removed before the end of their seven-year term for “inefficiency, neglect of duty, or malfeasance in office.” Oliva said Harbour’s malfeasance and neglect of duty was blatant. “Harbour misappropriated government resources to promote her own views in a manner that is not permitted by the Supreme Court, FTC rules, or any federal statute. Her actions send the message that she’s not subject to the same rules as other commissioners or executive branch officers. President Bush needs to correct that perception by removing Harbour from office.”

Oliva added that Harbour’s actions might also violate legal ethics rules. “Harbour is an experienced attorney who knows better than to file an illegal ex parte communication with a court for the purpose of influencing its decision. She violated her duty as an officer of the court and as an attorney employed by the United States government. The State of New York, where Harbour holds a law license, has more than sufficient grounds for conducting an investigation into her actions in this matter.”

Although President Bush appointed Harbour, she is not a Republican. The FTC Act states that no more than three commissioners can be members of the same political party. Harbour is a registered independent, but former Senate Democratic leader Thomas Daschle recommended her nomination under an agreement with the administration. Prior White Houses did not delegate the selection of FTC commissioners to the opposition party’s leadership.

Oliva said the Voluntary Trade Council would file a Freedom of Information Act request with the FTC seeking any records related to Harbour’s letter, including any communications with outside groups or parties to the case.

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For additional information see www.voluntarytrade.org/newsite