For more information about particular agencies and nominations see the Agency Spotlight.
It has been over a month since President Joe Biden assumed the presidency. So far, thirteen of his Cabinet picks have received Senate confirmation, while the remaining ten who will require it wend their way through the process. In the meantime, the administration continues to announce names for the nearly 4000 other positions it will need to fill. With only a few exceptions, however, picks for one class of appointment — to independent agency boards — have not yet been forthcoming. The Biden administration undoubtedly faces many competing priorities, but these nominations must rise to the top.
As it seeks to tackle overlapping short- and long-term crises, the Biden administration cannot afford to leave critical independent agencies on the sidelines. From the Securities and Exchange Commission (SEC) to the Federal Trade Commission (FTC), independent agencies must be key players in the fights against COVID-19, climate change, racial inequality, and much more. However, many of these agencies cannot dive into these fights (let alone set about undoing the Trump administration’s damaging actions), until Biden nominates and the Senate confirms new Democratic members to retake the majorities. In contrast, within Cabinet departments and executive agencies work is progressing under the direction of non-Senate-confirmed appointees and acting officials.
For more on the Senate confirmation process and ways to accelerate it, read our recent blog.
Nominations this month:
On February 3, Biden formally nominated Gary Gensler to serve as Chair of the Securities and Exchange Commission (SEC) and on February 13, he nominated Rohit Chopra to serve as Director of the Consumer Financial Protection Bureau.
On February 25, Biden announced his intention to nominate three people to the United States Postal Service Board of Governors. He has not yet sent those nominations to the Senate.
These nominations represent a small fraction of the total number of vacant and expired seats that are currently waiting to be filled. Across the 39 independent agencies that we track, 41 seats are vacant and 30 seats have occupants who are serving expired terms.
Awaiting Democratic majorities:
If Biden is serious about putting every corner of his administration to work advancing the public interest, he will make nominations to the following agencies without delay.
- Commodity Futures Trading Commission (CFTC): Biden should nominate a Democrat to replace Republican Brian Quintenz, whose seat expired last year.
- Consumer Product Safety Commission (CPSC): Biden should nominate a Democrat to fill the vacant seat on this board.
- Export-Import Bank (ExImBank): Biden should nominate two Democrats to fill two vacant seats on this board.
- 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 should nominate a Democrat to fill the vacant seat on this board.
- Federal Maritime Commission (FMC): Biden should nominate a Democrat to replace Republican Rebecca Dye whose seat expired last year.
- Federal Retirement Thrift Investment Board (FRTIB): Biden should nominate at least one Democrat to fill the vacant seat on this board (the remaining four board members terms have all expired so additional nominations would also be in order) .
- Federal Trade Commission (FTC): Biden should nominate two Democrats to fill the vacant seat on this board and the seat that Commissioner Rohit Chopra will vacate when he assumes leadership of the Consumer Financial Protection Bureau (CFPB).
- Merit Systems Protection Board (MSPB): Biden should nominate two Democrats to fill two of the three vacant seats on this board. Convention would hold that he nominates a Republican for the remaining vacant seat simultaneously. This would also restore a quorum to the board after nearly four years without one.
- National Mediation Board (NMB): To retake a majority, Biden must nominate a Democrat to replace Republican Chair Kyle Fortson, whose seat expired two years ago. He should also nominate replacements for the two remaining board members who are serving expired terms.
- Nuclear Regulatory Commission (NRC): Biden should nominate a Democrat to fill the vacant seat on this board.
- Privacy and Civil Liberties Oversight Board (PCLOB): Biden should nominate a Democrat to fill the vacant seat on this board.
- Surface Transportation Board (STB): Biden should nominate a Democrat to replace Republican Ann Begeman whose term expired late last year.
The following boards are also awaiting at least one nomination.
- Chemical Safety and Hazard Investigation Board (CSB): Biden needs to nominate at least one person to restore this board’s quorum.
- 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)
- United States International Trade Commission (USITC)
- United States Sentencing Commission (USSC): Biden needs to nominate at least three people to restore this commission’s quorum.
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.
Soon-to-be-Vacant Democratic Seats
Without action, we know that at least five additional 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. 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 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.
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 will not have a majority on the…
- Federal Energy Regulatory Commission (FERC) until June 30, 2021
- National Labor Relations Board (NLRB) until August 27, 2021
- 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