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.
While Trump and McConnell’s court packing is suddenly receiving overdue scrutiny, another of their norm-breaking takeovers continues to progress without backlash. Quietly Trump and Mitch McConnell have undermined independent agencies’ functionality by slow-walking minority party 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 Spotlight 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. 8 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 1054 days, or just over 2.9 years, past the end of their terms.
In addition to these expired seats, 41 seats are vacant. In total that makes 69 seats that are either expired or vacant. At the end of July there were only 25 pending nominations to fill these seats, a mere fraction of the total. President Trump put forward 2 new nominations this month. 1 seat expired and 4 commissioners left their seats.
The boards of 3 agencies lack a quorum, limiting or crippling their decision-making power.** Those agencies include the Federal Election Commission (FEC) and the United States Sentencing Commission (USSC). In addition, the Merit Systems Protection Board (MSPB) has 0 members.
- The FEC has 3 vacancies out of 6 positions, 1 short of a quorum. 2 of those vacancies are for Republican seats and 1 is for a Democratic seat. The President has advanced 0 nominations for these seats.
- 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. That means Senate Majority Leader Mitch McConnell is the only reason that agency is nonfunctional. 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. McConnell has used this procedural change to push through 200 federal judges but still cannot see fit to push forward the nominations to the MSPB.
The MSPB is hardly well-known but it plays a critical function in safeguarding the civil service and, by extension, good governance. The agency hears and decides on appeals for civil servants who have been disciplined, demoted, or fired (many of whom are whistleblowers). Amid the pandemic and the race for a vaccine, the lack of functioning outlets to which civil servants can appeal in case of politically-motivated retaliation is doubly concerning.
Only 20 agencies’ boards have no vacancies, while 7 have one vacancy, 6 have two vacancies, and 6 have three or more vacancies.
There are 4 agency boards whose sitting members/commissioners are all serving expired terms. They are the Federal Retirement Thrift Investment Board (FRTIB), the Foreign Claims Settlement Commission (FCSC), the National Mediation Board (NMB), 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. 15 of those 79 Republican seats are vacant versus 13 of the 56 Democratic seats. That is a 19 percent vacancy rate for Republican seats versus a 23 percent rate for Democratic ones. 13 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, 24 Democratic seats, or just shy of 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 16 pending Republican nominations to boards requiring a political balance. This is still short of the 27 total Republican seats that are not in good standing, but it is also far better than the 4 pending nominations that he has put forward for the 24 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