❮ Return to Our Work

Blog Post | June 22, 2021

The State of Independent Agency Nominations - Update for Spring 2021

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

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

Over 10 percent of Biden’s presidential term has passed. Yet, despite notable accomplishments on COVD-19 relief, 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. With 10 percent of his term gone, Democrats have secured a majority on just three new independent agency boards. 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 quickly but 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. 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 this month:

Since May 1, President Biden has nominated two officials to independent agency boards: Gwynne Wilcox to the National Labor Relations Board and Jennifer Homendy to the National Transportation Safety Board. That brings the total number of outstanding nominations to 11. Altogether, 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, 43 seats are vacant and 34 seats have occupants who are serving expired terms. 

Confirmations this month:

The Senate has confirmed 3 officials to the United States Postal Service Board of Governors since May 1st, thus achieving a Democratically-aligned majority. While many had hoped that a Democratic majority would vote to remove Postmaster General DeJoy, the board’s two longer-serving Democratic governors have indicated that they would not support such an effort. This makes it all the more important that President Biden move quickly to nominate successors to replace Chair Ron Bloom (a nominal Democrat and former investment banker and private equity figure whose term has expired) and Republican John Barger (whose term will expire in December. Since one of the newly confirmed governors is an Independent, Biden can nominate Democrats to fill both seats. 

The Senate also confirmed Lina Khan to the Federal Trade Commission in June.

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 fill the vacant seat on this board.
  • 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 three Democrats to fill two vacant and one expiring 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 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 Energy Regulatory Commission (FERC): Biden should nominate a Democrat to replace Republican Neil Chatterjee whose term will expire on June 30. 
  • 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). 
  • Merit Systems Protection Board (MSPB): Biden should nominate two Democrats to fill two of the three vacant seats on this board. This would also restore a quorum to the board after nearly four years without one. Convention would hold that he nominates a Republican for the remaining vacant seat simultaneously. 
  • 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. 

Urgent upcoming spots:

The absence of nominations to these positions, many of which have been open since the day Biden took power, is holding back the Biden administration’s agenda in many areas. Moving forward, the White House should resolve to move quickly to ensure that independent agencies have Democratic majorities at the earliest moment possible (and it should encourage the Senate to take common sense steps to expedite the confirmation process). 

That appears to be happening at the National Labor Relations Board, where an existing and upcoming vacancy put a Democratic majority within reach as soon as late August. Last month, the White House nominated Gwynne Wilcox to fill the vacant seat on the board but her confirmation would still have left the body with a Republican majority or gridlocked 2 Democrats to 2 Republicans (depending on when she is sworn in). Yesterday, however, the administration announced its intent to nominate a second Democrat, David Prouty, to Republican William Emmanuel’s soon-to-be-expired seat. With only two months to go before Emmanuel’s term expires, and a recess standing in the way, Biden should promptly send Prouty’s nomination to the Senate and push for rapid consideration.

The administration has not demonstrated similar foresight for an upcoming vacancy on the Federal Energy Regulatory Commission. Republican Neil Chatterjee’s term will expire on June 30 but Biden has yet to nominate his successor, making it all but certain that FERC will not have a Democratic majority as of July 1, as some might have hoped. He should move to name a replacement as soon as possible as FERC will be a critical player in the administration’s climate policy. 

Awaiting nominations:

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 Deposit Insurance Corporation (FDIC): 
  • Federal Mine Safety and Health Review Commission (FMSHRC) 
  • Federal Reserve Board of Governors (“the Fed”)
  • Foreign Claims Settlement Commission (FCSC)
  • IRS Oversight Board (IRSOB)
  • Occupational Safety and Health Review Commission (OSHRC)
  • Postal Regulatory Commission (PRC)
  • 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. Democratic Members on five agency boards will run up against those deadlines this year.

It is important that 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:

  • Federal Trade Commission (FTC): Commissioner Rohit Chopra will vacate when he assumes leadership of the Consumer Financial Protection Bureau (CFPB). 
  • 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. 

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…

  • 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

Photo: “Securities and Exchange Commission Headquarters Building” by Securities and Exchange Commission is licensed under CC BY-NC-SA 2.0

Independent Agencies

More articles by Eleanor Eagan

❮ Return to Our Work