TO: INTERESTED PARTIES

FROM: Revolving Door Project & Demand Progress Education Fund

RE: Dems Must Confront GOP Attacks on Dem Seats at the Independent Agencies 

Date: 11/13/19

 

Trump & McConnell’s Stealth Nuclear Attack on Independent Agencies

It is no secret that President Donald Trump and Senate Majority Leader Mitch McConnell will abandon the basic norms that govern our democracy whenever it serves their interests. However, one important breach has gone largely undetected. 

Quietly, Trump and McConnell have undermined statutorily-mandated political balance on many independent agency boards by refusing to nominate Democrats, and slow-walking or blocking them in the Senate. 

By effectively undermining statutory guarantees of partisan diversity across many disparate agencies, Trump and McConnell have ruined an important avenue by which the party not in the White House exerts influence over a president’s administration. Having trampled a pillar of bipartisanship, McConnell should be made to feel the consequences now and in the future. 

Democrats should make clear that if the partisan imbalance in vacancies isn't addressed by January 20th, 2020, they will contemplate serious retaliation in the case of a Democratic president and a Democrat-controlled Senate. (e.g., Democrats denying Senate Republicans control over non-Democratic agency seats by leaving such seats empty or filling them with independents)

What is an Independent Agency?

There is no single, authoritative definition of an independent agency. Furthermore, the various agencies that have been understood to qualify, vary tremendously in their size, administrative scope, and in the protections afforded their members or directors from presidential influence. Despite these differences, they share an important common function: to elevate expertise above bare partisanship in the technical matter of interpreting and enforcing the law. 

In creating its first independent agency, Congress reportedly, “sought to create a form of administration that would be expert and insulated from politics, so that the powers of the agency would not be used in a partisan way.” Political balance, pursuant to statutory mandates that a minority subset of seats be reserved for commissioners not of the President’s party, is one among several structural features used to temper bare partisanship in independent agency decision making. High-profile examples of contemporary independent agencies that are politically balanced include the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), and the Securities and Exchange Commission (SEC). 

A Longstanding Norm

While the President formally nominates all independent agency appointees, long standing norms have held that the Senate leadership of the party not in the Oval Office chooses minority party commissioners. This is an important mechanism by which the party out of power can still act as a counterweight to the president’s agenda. This is especially true when that party is also in the Senate minority. 

Although these commissioners’ ability to influence independent agency decision making is constrained, it is not non-existent. They may, for example, be able to sway a majority party commissioner, thereby changing the course of rulemaking or enforcement actions. Moreover, in moments of turnover, whether because of term expiration or resignation, the balance of power may shift so that minority party commissioners wield even more power. 

Even when they do not succeed in changing agency action, however, minority Commissioners can change the costs associated with the majority members’ decisions, by using their platform to direct public attention to, and/or condemn, their votes. They can use their office’s official resources and public platform to begin to normalize an agenda they might implement in the future. They can also provide a voice to career staff and a set of eyes and ears to corporate capture across the aisle. And they can interact with outside allies, experts, and the grassroots to create records that buoy efforts in Congress or before the courts to overturn agency actions forced through corporate captured majorities.

Biting the Hand that Feeds Him

Senator McConnell is undoubtedly familiar with this norm; in the not too distant past he and his party were the ones who benefited from it. Consider, for example, current FCC Chair Ajit Pai. Although President Obama formally nominated Pai to the commission in 2012, it was McConnell who selected him. McConnell’s control over that decision has had an impact over the long-run as well. Pai gained four years of experience on the commission thanks to McConnell’s nomination, leaving him well-positioned to assume the chairmanship and wield its agenda-setting powers effectively and expeditiously when Trump assumed office. 

It is not just Pai; President Obama consistently honored this extension of the Senate’s advice and consent role, nominating Senate Republicans’ choices along with his own. Given this recent experience, one would expect that McConnell would appreciate how this norm reinforces the Senate’s institutional power generally, and represents an important, moderating source of minority power. Not so. Or else he appreciates it too much, and wishes to accord that power to Republicans alone and deny it to Democrats now that the shoe is on the other foot.

Damaged Beyond Repair

Both Mitch McConnell’s actions as well his silence suggest that he supports President Trump’s assaults on this Senatorial norm. On numerous occasions throughout his presidency, Trump has nominated successors for Republican independent agency commissioners without pairing their nominations with ones for Democratic successors. Thus, the Republican nominees are confirmed and the Democratic seats are left to sit vacant for months, or even years, at a time. 

To illustrate the extent of the damage, the Farm Credit Administration (FCA), Federal Deposit Insurance Corporation (FDIC), Federal Maritime Commission (FMC), National Labor Relations Board (NLRB), Nuclear Regulatory Commission (NRC), United States International Trade Commission (USITC), and the United States Sentencing Commission (USSC) all lack one of their statutorily designated minority commissioners, even as all of the majority-party seats remain occupied. 

A handful of these vacancies are particularly protracted and consequential. One of the two Democratic seats on the FDIC board has been vacant for over two years, since April of 2017. The President has yet to put forward a nomination for that seat. (The term of a second Democratic FDIC commissioner expired in January 2019, and Trump has failed to nominate a successor). Meanwhile, one of the two Democratic seats on the NLRB has been vacant since August of 2018. Unlike some boards, the NLRB requires that board members step down on the date that their term expires. President Trump waited until the day after NLRB member Mark Pearce’s term expired to renominate him. That nomination expired, however, at the end of the 115th Congress and has not been renewed. As a result, the seat has now been vacant without a nomination for over eight months. 

Of 146 seats on politically-balanced boards, as of the end of November 13, 86 were either occupied by, or reserved for, Republican nominees versus 60 for Democratic nominees. 19 of those 86 Republican seats were vacant versus 19 of the 60 Democratic seats. That is a 22 percent vacancy rate for Republican seats versus a 32 percent rate for Democratic ones. Despite near parity in the absolute number of vacancies and expired seats, recent nominations have not been evenly distributed. President Trump had 16 pending Republican nominations to boards requiring a political balance. This is still far short of the 35 total Republican seats that were not in good standing (i.e. vacant or expired), but it is also far better than the 6 pending nominations that he had put forward for the 31 Democratic seats that were either vacant or expired. 

Compare the number of days a Republican seat will sit vacant with a Democratic one and the problem becomes even clearer. On average, a Republican seat will be vacant for 331 days without a nomination. In contrast, a Democratic one will be vacant for 440 days, or three months longer. 

Something is missed, however, if we only consider vacancies. President Trump has also been slow to nominate successors for commissioners’ expired seats, leaving many people languishing on independent agency boards for years after their terms have expired. The longer they are left to serve with no hope of having a successor nominated, the more likely these officials are to leave, putting agency boards out of balance. Democratic commissioners have been made to wait in expired seats much longer than their Republican counterparts. On average they will serve 521 days in an expired seat without a pending nomination for a successor. For Republicans, it is 433 days, or approximately three months fewer.

Bringing Independent Agency Action to a Halt

In addition to demonstrating that Trump has sought to throw political boards out of balance, these numbers also illustrate a broad failure to fill independent agency boards in a timely manner generally. This has led numerous independent agencies to lose a quorum during Trump’s presidency, preventing them from engaging in rulemaking or undertaking enforcement actions. At present, four agencies lack a quorum, including the Federal Election Commission (FEC), the Occupational Safety and Health Review Commission (OSHRC), the United States Sentencing Commission (USSC) and the Merit Systems Protection Board (MSPB). Other agencies that have at some point this year lacked a quorum include, the Equal Employment Opportunity Commission (EEOC) and the United States Postal Service (USPS).

Responsibility for this problem cannot, however, only be placed at President Trump’s feet. Mitch McConnell has direct responsibility for aggravating many of these delays. For example, the Senate received two of President Trump’s nominations for the Merit Systems Protection Board (enough to restore a quorum) in March, held hearings in May, and has failed to act since that time. Meanwhile, the MSPB, an agency tasked with the vital mission of protecting federal employees from abuse and partisan political interference, has been without a quorum, and thus unable to process cases, for over a year. This inattention to agency function is inexcusable.

Shared Responsibility

McConnell likes to fashion himself as a defender of the Senate as an institution. However, McConnell’s conduct is best described as partisan rather than that of an institutionalist. McConnell is, perhaps, the lawmaker best situated to force this President’s compliance, by withholding funding, curbing the President’s foreign wars, or, simply, holding the President’s nominations. He has employed none of these tools, instead allowing this assault to proceed unimpeded. 

In other words, McConnell has enabled what is undeniably a Presidential attack on the Senate's advice and consent role. McConnell and his caucus have made their choice to undercut the intended functioning of these critical institutions and must therefore reckon with its consequences. In the near term, his role in the destruction of this norm should not remain in the shadows; his decision to aid and abet this president’s demolition should come with a political cost. 

When a Democratic president next comes to power, Democrats will have options. They can retaliate in kind by limiting deference to Senate Republicans. They can maintain “Republican” vacancies for an equivalent amount of time as to “Democratic vacancies” under Trump. Another retaliatory option would, in theory, be nominating Independents or third party members as an alternative to Republicans for non-Democratic slots. Democrats could, given control of the legislative process, also reform the relevant agency organic statutes to create failsafes like the Vacancy Reform Act designed to maintain full Commission with consistent partisan balance.

This memo does not, however, argue any specific response is obviously optimal. Instead, it argues for the recognition that *a* response is necessary. Republicans, led by McConnell, have successfully trampled bipartisan norms beyond recognition. Mutuality is a necessary component to not only maintaining norms, but restoring them. Democrats must resist the urge to acquiesce to limited minority Commissioner confirmations until the next Democratic president is inaugurated. The pre-existing norms have been broken, and the path to reinstating an enduring and stable bipartisan system is not surrender. If these norms are reinstated when Democrats return to power as if nothing untoward had occurred, nothing is stopping future majorities from employing this strategy again.