This is the title I chose for my personal blog, which is meant to give me an outlet for one of my favorite crafts – writing – plus to use an image from my favorite sport, golf. Out of college, my first job was as a reporter for the Daily Astorian in Astoria, Oregon, and I went on from there to practice writing in all my professional positions, including as press secretary in Washington, D.C. for a Democrat Congressman from Oregon (Les AuCoin), as an Oregon state government manager in Salem and Portland, as press secretary for Oregon’s last Republican governor (Vic Atiyeh), and as a private sector lobbyist. This blog also allows me to link another favorite pastime – politics and the art of developing public policy – to what I write. I could have called this blog “Middle Ground,” for that is what I long for in both politics and golf. The middle ground is often where the best public policy decisions lie. And it is where you want to be on a golf course.
The U.S. Chamber of Commerce weighed in on the non-compete issue, a proposal by the Federal Trade Commission (FTC) to insert itself even more heavily into private business decisions.
The Chamber says it will fight the intrusion.
I have written about this before – the issue of using what are called “non-compete” agreements to protect trade secrets and, in the particular issue in which I was involved as a lobbyist in Oregon, to protect major investments by radio and TV broadcast stations in on-air talent.
Chamber President and CEO Suzanne P. Clark said this: “We’ll go to court if necessary to stop the legally baseless ban on non-compete clauses.
“When Lina Khan assumed the chair of the FTC, she said her goal was to ‘shape the distribution of power and opportunity across our economy.’ Her proposed ban on all employment-based non-compete agreements suggests she doesn’t intend to let the law or Constitution get in her way.
“The U.S. Chamber of Commerce will oppose the proposed regulation with all the tools at our disposal, including litigation. If the FTC can regulate non-compete agreements without authorization from Congress, there is no aspect of employment or commercial arrangements that it doesn’t have the authority to regulate or ban arbitrarily.”
In its more than 100-year history, the FTC has never enforced a rule to regulate competition, and Congress never intended the agency to have that power. Instead, legislators gave the FTC authority to identify, on a case-by-case basis, individual acts that constitute unfair competition. And this authority is subject to judicial oversight.
Clark contends “this structure has been a key to preserving innovation in a free market and avoiding overregulation. It prevents the FTC from writing the laws it is assigned to enforce, which is necessary to protect the constitutional separation of powers.”
To repeat, the proposed regulation to ban non-competes takes regulation one step further than has occurred in the past. Rather than reviewing and judging the specific and individual conduct of companies under Section 5, the FTC has proposed simply to issue a nationwide ban of a type of employment contract that three unelected commissioners have decided they don’t like.
Now, why was I involved in the non-compete issue?
It occurred when, as a lobbyist, I represented the Oregon Association of Broadcasters (OAB), an organization of more than 200 radio and television stations across Oregon. The OAB uses non-compete agreements to protect its often-huge investments in promoting on-air talent.
Without such agreements, competing stations could just entice on-air talent such as “anchors” to move down the street, thus negating the investment the home stations had made in promoting the popularity of those anchors, and, thus, ratings for their stations.
Under pressure in Salem, the OAB, with me as the lobbyist, managed to retain the ability to use non-compete agreements, but, if the FTC initiative takes hold, such agreements around the country – and in Oregon – would be null and avoid.
And that’s as bad for broadcasters as it is for any business protecting its investments and trade secrets.