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. 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.
More missed opportunities are just around the corner if Biden doesn’t act quickly. Gridlock will turn to a Republican majority at the FCC if Biden does not renominate or replace Jessica Rosenworcel, whose term expires in January, soon. And the United States Postal Service will continue to be under Louis DeJoy’s thumb so long as Biden does not move quickly to nominate officials to replace DeJoy-defenders Ronald Bloom and John Barger.
Where Biden has made nominations, the sluggish Senate confirmation process is often responsible for additional, detrimental delays (note that we have proposed a solution for that). At the Consumer Product Safety Commission, for example, Republicans hold the majority, despite Biden having nominated several Democrats to the board earlier this summer.
In short, despite an uptick in the pace of nominations over the summer, particularly for Democratic seats, many seats continue to languish without nominees to fill them while others have fallen victim to a broken Senate confirmation process. To make good on its promises, the Biden administration must double down on efforts to fill every available seat quickly and work with congressional leaders to speed confirmations.
For more information about particular agencies and nominations see the Agency Spotlight.
Nominations this summer:
Since the end of June, President Biden has nominated 18 people to independent agency boards. Those are to the:
- Consumer Product Safety Commission (Democrats Mary Boyle and Alexander Hoehn-Saric)
- Export-Import Bank of the United States (Democrats Judith Pryor and Owen Herrnstadt)
- Federal Labor Relations Authority (Democrats Ernest DuBester and Susan Grundmann)
- Federal Maritime Commission (Democrat Max Vekich)
- Federal Retirement Thrift Investment Board (Democrats Javier Saade, Stacie Olivares, and Leona Bridges and Republican Dana Bilyeu)
- Merit Systems Protection Board (Democrats Raymond Limon and Cathy Ann Harris and Republican Tristan Leavitt)
- National Credit Union Administration (Democrat Todd Harper)
- National Labor Relations Board (Democrat David Prouty)
- National Mediation Board (Democrats Linda Puchala and Deirdre Hamilton and Republican Gerald Fauth III)
With those, the total number of outstanding nominations stands at 22. Biden has also named six officials who he intends to nominate to fill openings at the Commodity Futures Trading Commission (CFTC), the Export-Import Bank, the Federal Energy Regulatory Commission, and the Federal Trade Commission (FTC). As of publication, he has not yet sent these names to the Senate. Altogether, these nominations represent a 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, 49 seats are vacant and 33 seats have occupants who are serving expired terms. Of those, 20 of the vacant and 22 of the expired seats can be filled by Democrats.
Confirmations this month:
The Senate has confirmed 4 officials to independent agency boards since the end of June. These are Democrat Jocelyn Samuels to the Equal Employment Opportunity Commission (EEOC), Democrats Gwynne Wilcox and David Prouty to the National Labor Relations Board (NLRB) and Democrat Jennifer L. Homendy to the National Transportation Safety Board (NTSB)
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 over eight months into his administration. In others, Senate gridlock is to blame for the delays.
- Consumer Product Safety Commission (CPSC): Biden nominated Democrats Mary Boyle and Alexander Hoehn-Saric to two vacant seats in July. Both are awaiting confirmation.
- Export-Import Bank (ExImBank): Biden nominated Democrats Judith Pryor and Owen Hernstadt to two of three vacant Democratic seats on the board. Both 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 should nominate two Democrats to fill the vacant seat on this board and the seat that Acting Chair Jessica Rosenworcel will be required to vacate at the end of this year. (This could include renominating Jessica Rosenworcel to another term).
- 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 three Democrats — Javier Saade, Stacie Olivares, and Leona Bridges — and one Republican — Dana Bilyeu — to fill vacant and expired seats on the board. All are 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 Mediation Board (NMB): Biden has nominated two Democrats — Deirdre Hamilton and Linda Puchala — and one Republican — Gerald Fauth III — to expired seats 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 should nominate a Democrat to fill the vacant seat on this board.
- Surface Transportation Board (STB): Biden nominated Democrat Karen Jean Hedlund to replace Republican Ann Begeman whose term expired late last year. 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 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 push common sense reforms to the confirmation process.
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)
- Federal Reserve Board of Governors (“the Fed”)
- Foreign Claims Settlement Commission (FCSC)
- IRS Oversight Board (IRSOB)
- Postal Regulatory Commission (PRC)
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 several additional Democratic 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 three agency boards will run up against those deadlines this year. At least one other commissioner — Dan Berkovitz on the Commodity Futures Trading Commission — has announced his intention to leave in October.
It is important that Biden nominate replacements for board members well ahead of the dates on which the current occupants will be forced to step down and, ideally, just ahead of when their terms will expire. 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.
Consider, for example, the Consumer Product Safety Commission (CPSC), where Democrat Elliot Kaye’s departure several months before he was required to step down has left the body with a Republican majority. While there are nominees pending to restore a Democratic majority, it will likely be months before they are confirmed. If Biden had, instead, put forward nominations at the start of the year, he could have avoided this unfortunate scenario. The same is true of the CFTC, where Berkovitz’s departure will leave the body without a quorum. While Biden has recently named nominees for the open seats, they are unlikely to be confirmed before the middle of next month. Biden has had the opportunity to nominate officials to the CFTC since the start of the year.
The Biden administration should learn from these mistakes and promptly nominate successors for Democratic officials on the following boards:
- 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 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