For more information about particular agencies and nominations see the Agency Spotlight.
Biden has accomplished a great deal in his first 100 days in office. Millions have been vaccinated, relief measures have been passed to address ongoing economic pain, and important portions of Trump’s agenda have been reversed. Yet, despite the scale of these accomplishments, the Biden administration is still far from having maximized its potential impact, particularly when it comes to executive branch power.
Nowhere is that more evident than at independent federal agencies, where Biden’s agenda has barely even begun to take root. 100 days after Biden first took office, Democrats have secured a majority at just one independent agency. At the majority of agencies, boards are either deadlocked between Republicans and Democrats, or continue to have Republican majorities. Many nonpartisan boards are still in the hands of figures who are committed to President Trump’s agenda. While, in most cases, commissioners who more closely align with Biden have taken over the offices of chair, allowing for some new hiring and the launch of new initiatives, the scope of agency action will be constrained until majorities are secured.
Many of these agencies have had vacancies since the Biden administration’s first days (and, in many cases, even earlier). These include the Commodity Futures Trading Commission, Consumer Product Safety Commission, Federal Communications Commission, and Merit Systems Protection Board, among others. Expeditious nominations might have ensured that these agencies were working at their full capacity before Biden’s first 100 days in office passed. In reality, the White House has yet to send nominations for any of these vacant positions to the Senate.
In the months since Biden’s inauguration, new seats on independent agency boards, like the Federal Election Commission, have also opened up, providing Biden even more opportunity to reshape and reorient these institutions. More seats still will be within Biden’s reach within just a couple of months, including on the Federal Energy Regulatory Commission (FERC) and the National Labor Relations Board (NLRB).
Filling vacant and expired seats on independent agency boards, whether they are old or new, must be an urgent priority in the administration’s next 100 days and beyond. Vacancies on independent agency boards are even more detrimental than those at executive agencies as acting officials cannot step up to serve in commissioners’ stead. So long as they are not filled, the Biden administration’s ability to deliver on its promises related to inequality, climate, racial justice and more will be incomplete. In Biden’s own parlance, these positions are “a big f*cking deal.” They must be moved to the top of the White House Personnel Office’s agenda.
Nominations and missed opportunities in the first 100 days:
Biden nominated a total of 14 people to independent agency boards over his first 100 days in office. These nominations were to the
- Chemical Safety and Hazard Investigation Board (CSHIB)
- Consumer Financial Protection Bureau (CFPB)
- Equal Employment Opportunity Commission (EEOC)
- Federal Trade Commission (FTC)
- National Aeronautics and Space Administration (NASA)
- National Mediation Board (NMB)
- Securities and Exchange Commission (SEC)
- Surface Transportation Board (STB)
- United States Postal Service (USPS)
7 of those nominations, or half of the total, came in the last month.
These nominations represent a small fraction of the total number of vacant and expired seats that are currently waiting to be filled. Across the 40 independent agencies that we track, 48 seats are vacant and 34 seats have occupants who are serving expired terms.
With expeditious nominations, the following agencies could have plausibly been operating under Democratic majorities within Biden’s first 100 days or very soon after:
- Commodity Futures Trading Commission (CFTC)
- Consumer Product Safety Commission (CPSC)
- Export-Import Bank (ExImBank)
- Farm Credit Administration (FCA)
- Federal Communications Commission (FCC)
- Federal Maritime Commission (FMC)
- Federal Retirement Thrift Investment Board (FRTIB)
- Federal Trade Commission (FTC)
- Merit Systems Protection Board (MSPB)
- Nuclear Regulatory Commission (NRC)
- Privacy and Civil Liberties Oversight Board (PCLOB)
Biden could also have nominated officials to the following boards upon taking office:
- Defense Nuclear Facilities Safety Board (DNFSB)
- Federal Mine Safety and Health Review Commission (FMSHRC)
- Federal Reserve Board of Governors (“the Fed”)
- Foreign Claims Settlement Commission (FCSC)
- National Labor Relations Board (NLRB)
- Occupational Safety and Health Review Commission (OSHRC)
- United States International Trade Commission (USITC)
- United States Sentencing Commission (USSC)
Making nominations to these boards will not result in new Democratic majorities for a variety of reasons (e.g. the board is nonpartisan, the board is evenly balanced between the two parties, the board already has a Democratic majority, or there are not enough vacant or expired seats to retake a majority). Nonetheless, nominating new officials is an opportunity to begin remaking these agencies in the public interest.
Lessons for the next 100 days and beyond
In the next 100 days and after, Biden must move to fill seats on independent agency boards as quickly as possible. In addition to the positions listed above, other seats have expired since Biden first took office, providing additional opportunities to get these powerful institutions working for the public good.
In April, Republican Commissioner Sean Cooksey’s seat on the Federal Election Commission (FEC) expired. Biden should nominate a replacement without delay. And he should think carefully about his choice for a replacement. The FEC is made up of six commissioners, no more than three of whom can come from one political party. In practice, this has meant that the agency’s board is evenly split and consistently deadlocked on even basic decisions. Biden can fix this by nominating a Democrat or an independent who supports more stringent election law enforcement to Cooksey’s seat, taking advantage of the fact that one of the current non-Republican seats is occupied by Independent Steven Walther.
Opportunities around the corner:
Other seats, on the Federal Energy Regulatory Commission and the National Labor Relations Board, will be opening up in June and August, respectively, and will pave the way for Democratic majorities on these boards. Given the slow pace of confirmations, Biden should make nominations now to ensure that successors are ready to assume these positions at the first possible moment.
The same should go for seats that will expire in the years to come. Biden will be unable to secure majorities on the following boards for over a year:
- Equal Employment Opportunity Commission (EEOC) until July 1, 2022
- Federal Labor Relations Authority (FLRA) until July 30, 2022
- National Transportation Safety Board (NTSB) until August 5, 2022
- Postal Regulatory Commission (PRC) until October 14, 2022
- National Credit Union Administration (NCUA) until August 2, 2023
Those delays are bad enough. Biden cannot allow them to be compounded by failing to make nominations expeditiously.
Safeguarding Democratic Majorities:
Biden must also move early to safeguard Democratic majorities that are at risk due to expired seats. Without action, we know that at least five Democratic seats will become vacant this year. Rules governing tenure vary from agency to agency. Some allow members to serve past the ends of their terms until they are replaced. Others demand that members step down as soon as their seats expire. Still others allow members to serve for a period of months or years after their terms expire. Democratic Members on five agency boards will run up against those deadlines this year.
It is important the Biden nominate replacements for these board members well ahead of the dates on which the current occupants will be forced to step down. Some media outlets have characterized this proposition — replacing Democratic board members who are serving expired terms before they are absolutely required to leave their seats — as controversial, but it is merely prudent. Vacancies on independent agency boards can drastically change agency action on everything from rulemaking to enforcement. Within that context, it is clearly better to cut one board member’s time in office slightly short than to allow the seat to be vacated and the agency to be thrown into turmoil. Thus, in relatively short order, Biden should nominate successors for, or reappoint, Democratic officials on the following boards:
- Export-Import Bank (ExImBank): Democrat Judith Pryor will be forced to leave her seat on July 20, 2021.
- Consumer Product Safety Commission (CPSC): Democrat Eliot Kaye will be forced to leave his seat on October 21, 2021.
- Postal Regulatory Commission (PRC): Democrat Michael Kubayanda will be forced to leave his seat November 22, 2021.
- United States Postal Service (USPS): Democrat Ron Bloom will be forced to leave his seat December 8, 2021.
- Federal Communications Commission (FCC): Democrat Jessica Rosenworcel will be forced to leave her seat January 2, 2022.
Header Image: “Securities and Exchange Commission Headquarters Building” by Securities and Exchange Commission is licensed under CC BY-NC-SA 2.0