Many have been asking in the last few days what the effect will be of Commissioner Julie Brill’s announced resignation from the Federal Trade Commission (“FTC”). Will it change things as the Supreme Court seems to be changing without Justice Scalia? The short answer: Probably not.

One needs to consider the FTC Act and the makeup of the commission. The statute provides that there can be no more than three commissioners of one party on the five-member commission. Traditionally, except when there is an independent commissioner, the margin would be 3-2, one way or the other. When there is a single vacancy, it takes a 3-1 vote to have a majority. In the times there have been two vacancies, a 2-1 vote is needed.