Over the past several years, President Trump’s assault on governing norms, from his refusal to reveal information about his finances to his glee in firing those who are not sufficiently loyal to him, has sparked public outcry. One set of norm violations, however, has received relatively little attention from the media or from Senate Democrats. Quietly, Trump and Mitch McConnell have undermined independent agencies’ functionality by slow-walking nominations. And, in particular, they have undermined the norm of statutorily-mandated political balance on many independent agency boards in a move that could keep regulatory power in Republican hands for years after Trump leaves office.
As we have previously highlighted, the federal government’s independent federal agencies receive too little attention relative to their importance to our collective safety and prosperity. The Revolving Door Project has worked through multiple channels to shed light on these overlooked agencies and the threats that they face. We hope public education will generate pressure to safeguard the independence of these agencies and ensure that they are staffed with advocates for the public interest rather than corporate insiders.
Central to this work is our Agency Spotlight. The Spotlight is a unique tool which tracks “appointments to agency leadership positions through the confirmation process and beyond,” giving the public access to previously opaque, scattered information. By bringing this information together in a centralized database, the Monitor helps the public to think about the de-centralized regulatory apparatus more holistically.
In order to elevate this unique tool and encourage more members of the public and advocates alike to make use of it, we release monthly summaries of topline statistics that capture the current state of the independent federal agencies. We hope that these numbers will help drive home the severity of this issue and will generate more pressure to find a solution.
The Agency Spotlight tracks 39 agencies. Collectively, these bodies have a total of 174 members/leaders who require Senate confirmation. The agencies with multi-member boards, rather than single directors, have boards ranging from 3 to 11 people. 28 of those agencies require a political balance, meaning that there can only be a certain number of members from the same political party.
Ongoing Staffing Problems*:
Of the aforementioned 174 positions, 28 are filled by members/commissioners who are serving expired terms. 11 of those terms expired prior to President Trump taking office and 1 expired prior to President Obama taking office. Those 28 members have served on average 1195 days, or just over 3 years, past the end of their terms.
In addition to these expired seats, 42 seats are vacant. In total that makes 70 seats that are either expired or vacant, almost half of the total. At the end of May there were only 30 pending nominations to fill these seats, a mere fraction of the total. President Trump put forward 4 new nominations this month. 0 seats expired and 0 commissioners left their seats.
The boards of 2 agencies lack a quorum, limiting or crippling their decision-making power.** Those agencies are the United States Sentencing Commission (USSC) and the Merit Systems Protection Board (MSPB), which has 0 members. The USSC sets federal sentencing guidelines while the MSPB protects civil servants from abuses by agency management.
- The USSC has 5 vacancies out of 7 positions, 2 short of a quorum. 3 of those vacancies are for Republican seats and 2 are for Democratic seats. The President has advanced 0 nominations for these seats.
- The MSPB has 3 vacancies out of 3 positions, 2 short of a quorum. 2 of those seats are for Republicans and 1 is for a Democrat. The President has advanced 3 nominations, 1 for a Democratic seat and 2 for Republican seats.
All 3 nominations for the MSPB board have been voted out of committee and 2 were voted out as long ago as mid-February of 2019. Even as Senate Majority Leader Mitch McConnell brings the Senate back to Washington, D.C. amid a pandemic to confirm an unqualified 38-year-old to a Circuit Court position, he continues to stand in the way of the MSPB’s functionality. McConnell’s failure to afford these nominees a vote is particularly indefensible in light of the fact that McConnell deployed a “nuclear option” that makes many confirmation votes 15 times faster than before (two versus 30 hours), rendering “floor time” much less scarce.
Only 19 agencies’ boards have no vacancies, while 8 have one vacancy, 7 have two vacancies, and 5 have three or more vacancies.
There are 3 agency boards whose sitting members/commissioners are all serving expired terms. They are the Defense Nuclear Facilities Safety Board (DNFSB), the Federal Retirement Thrift Investment Board (FRTIB), and the United States Parole Commission (USPC).
Many of these agencies’ boards are statutorily designed to be politically balanced. The President selects nominees from his own party but, for appointees of the opposing party, generally nominates those recommended to him by senior Senators of that party.*** To avoid partisan battles, nominations for vacancies are often, though not always, advanced in pairs made up of one Democrat and one Republican. In the absence of a natural pair nominations will advance alone. This President, however, has chosen to break with precedent and has consistently put forward nominations for Republican seats without a corresponding Democratic partner even when they put boards out of political balance.****
Of 135 seats on politically-balanced boards, at present 79 are either occupied by, or reserved for, Republican nominees versus 56 for Democratic nominees. 14 of those 79 Republican seats are vacant versus 18 of the 56 Democratic seats. That is an 18 percent vacancy rate for Republican seats versus a 32 percent rate for Democratic ones. 14 of the members serving expired terms are Republicans (for 17 percent of total Republican seats) and 11 are Democrats (20 percent of total Democratic seats). Also note that, in total, 29 Democratic seats, or just over 50 percent of their total share, are either vacant or expired.
Despite near parity in the absolute number of vacancies and expired seats, recent nominations have not been evenly distributed. President Trump has 17 pending Republican nominations to boards requiring a political balance. This is still short of the 28 total Republican seats that are not in good standing, but it is also far better than the 8 pending nominations that he has put forward for the 29 Democratic seats that are either vacant or expired.
* Rules governing personnel at these agencies diverge frequently. Many, but not all, allow sitting Commissioners to remain for some period of time after their term expires but before being replaced, and of those agencies, some allow Commissioners on an expired term to remain in office indefinitely.
** Agencies vary with respect to what powers are lost in the absence of a quorum.
*** Norris, Floyd, “Independent Agencies, Sometimes in Name Only,” The New York Times, Aug. 8, 2013, https://www.nytimes.com/2013/08/09/business/independent-agencies-sometimes-in-name-only.html
**** Senator Sherrod Brown to President Donald Trump, April 23, 2019, Website of United States Senate Committee on Banking, Housing, and Urban Affairs. https://www.banking.senate.gov/imo/media/doc/4.23.2019%20SB%20to%20DJT%20re%20FDIC%20Nominees%20FINAL%20to%20PDF.pdf