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Blog Post | January 19, 2022

The State of Independent Agency Nominations - Update for Fall 2021

Independent Agencies
The State of Independent Agency Nominations - Update for Fall 2021

Since the start of the year, we have warned that failure to promptly fill vacant and expired seats on independent agency boards would undermine the Biden administration’s agenda across many issue areas. Now, as executive branch policymaking kicks into high gear across this administration, we are seeing examples of this warning becoming a reality. 

Thanks to gridlock at the Federal Communications Commission (FCC), for example, this administration has failed to restore net neutrality rules, let alone charge ahead with new initiatives to make telecommunications policy work better for the public. Similarly, the Federal Maritime Commission’s response to the global crisis in shipping is surely impeded by the lack of a Democratic majority (Democrat Max Vekich’s nomination to replace Republican Michael Khouri has been stalled in the Senate for months). The Federal Elections Commission (FEC), meanwhile, remains impotent to enforce election law because Biden has not yet taken an opportunity to replace Republican Sean Cooksey with a commissioner who supports the commission’s mission. 

The missed opportunities will continue to pile up if something in the nomination and confirmation process does not give. One year into his presidency, Biden has finally made nominations for a sizable share of vacant independent agency seats but, thanks to a dysfunctional Senate confirmation process, those vacancies remain and continue to hamper agency action. For this reason, we have advocated for Senate rule changes to accelerate this process. Even if, however, Senate Democratic leadership is unable to push forward these particular reforms, it is clear that something has to change. Senate leadership should, at the very least, increase the costs of obstruction by keeping the Senate in session into the night and over weekends to clear the confirmation backlog. This is all the more important in light of recent blows to Democrats’ legislative agenda and the risk that they lose the Senate majority this November. 

For more information about particular agencies and nominations see the Agency Spotlight.

Nominations this summer:

Since the beginning of September, President Biden has nominated 30 people to independent agency boards, including renominations of sitting members. Those are to the:

  • Commodity Futures Trading Commission (Democrats Rostin Benham, Kristin Johnson, and Christy Goldsmith Romero and Republicans Summer Mersinger and Caroline Pham)
  • Export-Import Bank (Democrat Reta Jo Lewis)
  • Federal Communications Commission (Democrats Jessica Rosenworcel and Gigi Sohn)
  • Federal Energy Regulatory Commission (Democrat Willie Phillips Jr.)
  • Federal Housing Finance Agency (Sandra Thompson)
  • Federal Mine Safety and Health Review Commission (Mary Lu Jordan and Timothy Baker)
  • Federal Reserve (Jerome Powell, Lael Brainard, Sarah Bloom Raskin, Lisa Cook, and Philip Jefferson)
  • Federal Retirement Thrift Investment Board (Democrats Javier Saade, Stacie Olivares, Leona Bridges, and Michael Gerber and Republican Dana K. Bilyeu)
  • Federal Trade Commission (Democrat Alvaro Bedoya)
  • Merit Systems Protection Board (Republican Tristan Leavitt)
  • Occupational Safety and Health Review Commission (Democrat Susan Harthill)
  • Postal Regulatory Commission (Democrat Michael Kubayanda)
  • Privacy and Civil Liberties Oversight Board (Democrat Sharon Bradford Franklin and Republican Beth Ann Williams)
  • United States Postal Service (Democrat Daniel Tangherlini and Republican Derek Kan)

With those, the total number of outstanding nominations stands at 34. Altogether, these nominations represent less than half of the total number of vacant and expired seats that are currently waiting to be filled. Across the 40 independent agencies that we track, 49 seats are vacant and 31 seats have occupants who are serving expired terms. Of those, 22 of the vacant and 13 of the expired seats can be filled by Democrats. 

Confirmations this fall:

The Senate has confirmed 10 officials to independent agency boards since the beginning of September. These are Sylvia E. Johnson and Stephen A. Owens to the Chemical Safety and Hazard Investigation Board (CSHIB), Democrat Rostin Benham to the Commodity Futures Trading Commission (CFTC), Rohit Chopra to the Consumer Financial Protection Bureau (CFPB), Democrats Alexander Hoehn-Saric and Richard Trumka Jr. to the Consumer Product Safety Commission (CPSC), Democrat Jessica Rosenworcel to the Federal Communications Commission (FCC), Democrat Willie Phillips Jr. to the Federal Energy Regulatory Commission (FERC), Democrat Deirdre Hamilton to the National Mediation Board (NMB), and Democrat Karen Jean Hedlund to the Surface Transportation Board (STB).

Awaiting Democratic majorities:

The following boards are awaiting Democratic majorities and/or a sufficient number of Democratic nominees to restore a quorum. In some cases, the Biden administration has failed to nominate officials to attain these majorities a year into his administration. In others, Senate gridlock is to blame for the delays. 

  • Commodity Futures Trading Commission (CFTC): Biden nominated Democrats Kristin Johnson and Christy Goldsmith Romero and Republicans Summer Kristine Mersinger and Caroline Pham to vacant and expired seats on this board. All are awaiting confirmation. 
  • Consumer Product Safety Commission (CPSC): Biden nominated Democrat Mary Boyle in July, but she is still awaiting confirmation. 
  • Export-Import Bank (ExImBank): Biden nominated Democrats Judith Pryor, Owen Hernstadt, and Reta Jo Lewis to the three vacant Democratic seats on the board. All are awaiting confirmation. 
  • Farm Credit Administration (FCA): Biden should nominate two Democrats to fill a vacant seat and to replace Jeffrey Hall, whose term expired two years ago.
  • Federal Communications Commission (FCC): Biden nominated Gigi Sohn to the vacant seat on this board in October, but she is still awaiting confirmation. 
  • Federal Election Commission (FEC): Biden should nominate an official who believes in robust campaign finance enforcement to replace Republican Sean Cooksey. Legally speaking, that official can be a Democrat, an Independent, or a Republican.
  • Federal Labor Relations Authority (FLRA): Biden nominated two Democrats — Ernest DuBester and Susan Grundmann — to seats on the board. Both are awaiting confirmation. 
  • Federal Maritime Commission (FMC): Biden nominated Democrat Max Vekich to replace Republican Michael A. Khouri whose term expired this summer. He is awaiting confirmation. 
  • Federal Retirement Thrift Investment Board (FRTIB): Biden nominated four Democrats — Javier Saade, Stacie Olivares, Leona Bridges, and Michael Gerber — and one Republican — Dana Bilyeu — to fill vacant and expired seats on the board. All are awaiting confirmation.  
  • Federal Trade Commission (FTC): Biden nominated Democrat Alvaro Bedoya to the vacancy on this board. He is awaiting confirmation. 
  • Merit Systems Protection Board (MSPB): Biden nominated two Democrats — Raymond Limon and Cathy Ann Harris — and one Republican — Tristan Leavitt — to vacancies on the board. All are awaiting confirmation.  
  • National Transportation Safety Board (NTSB): Biden should nominate a Democrat to fill the vacant seat on this board. 
  • Occupational Safety and Health Review Commission (OSHRC): Biden nominated Democrat Susan Harthill to fill a vacant seat on this board. She is awaiting confirmation. 
  • United States International Trade Commission (USITC): Biden should nominate a Democrat to fill the vacant seat on this board. 
  • United States Postal Service (USPS): Biden nominated Democrat Daniel Tangherlini to fill a vacant seat on this board and Republican Derek Kan to replace John Barger, whose seat has expired. Both are awaiting confirmation. 
  • United States Sentencing Commission (USSC): Biden should nominate three Democrats to fill vacant seats on this board. 

Notably, these numbers illustrate that, while the Biden administration continues to be delinquent naming nominees for many positions, dysfunction in the Senate is now emerging as another major obstacle to Democratic majorities on many independent agency boards. Leaders in the administration and in Congress should take note and move to ease the backlog through common sense reforms to the confirmation process or procedural maneuvers that increase the costs of these delays.  

Awaiting nominations:

The following boards are also awaiting at least one nomination.

  • Chemical Safety and Hazard Investigation Board (CSHIB)
  • Defense Nuclear Facilities Safety Board (DNFSB) 
  • Election Assistance Commission (EAC)
  • Federal Deposit Insurance Corporation (FDIC) 
  • Federal Mine Safety and Health Review Commission (FMSHRC) 
  • Foreign Claims Settlement Commission (FCSC)
  • IRS Oversight Board (IRSOB)
  • Postal Regulatory Commission (PRC)
  • United States Parole Commission (USPC)

Making these nominations 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). It is, nonetheless, important that President Biden act quickly to nominate people to these boards to ensure that critical agencies are working to their full capacity. 

Majorities Delayed:

Biden will be unable to secure majorities on several boards for months or years (assuming that no one steps down before their term expires). 

Biden cannot have a majority on the…

  • Equal Employment Opportunity Commission (EEOC) until July 1, 2022
  • Postal Regulatory Commission (PRC) until October 14, 2022
  • National Credit Union Administration (NCUA) until August 2, 2023
Independent Agencies

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