This version reflects corrections made at 10:00 AM on March 29, 2019
The federal government’s 40 independent agencies play an important role establishing and enforcing the regulatory frameworks that govern sectors as diverse as financial securities, chemicals, nuclear weapons, and postal services. Yet, despite these essential contributions to public safety, financial security, and the public good in general, these agencies are perpetually forgotten.
This is a long-running problem that predates this administration. President Trump, however, has added a further dimension to the crisis by politicizing the nomination process. Many of these agencies’ boards are statutorily designed to be politically balanced. To avoid partisan battles, nominations for vacancies are often, though not always, advanced in pairs made up of one Democrat and one Republican. In the absence of a natural pair nominations will advance alone. This President, however, has chosen to break with precedent and has consistently put forward nominations for Republican seats without a corresponding Democratic partner even when they put boards out of political balance.
Unfortunately, neither the agencies’ long-running neglect nor the President’s recent manipulations have received the attention that they deserve, leaving many boards incomplete and some unable to carry out some or all of their responsibilities. The Revolving Door Project has worked to shed light on these issues through multiple channels, hoping that public education might generate pressure to break the gridlock.
Central to this work is our Independent Federal Agency Monitor. This monitor is a unique tool which tracks “appointments to agency leadership positions through the confirmation process and beyond,” giving the public access to previously opaque, scattered information. By bringing this information together in a centralized database, the Monitor helps the public to think about the de-centralized regulatory apparatus more holistically.
In order to elevate this unique tool and encourage more members of the public and advocates alike to make use of it, we will be releasing monthly summaries of topline statistics that capture the current state of the independent federal agencies. This is the first installment in this new project. We hope that these numbers will help drive home the severity of this issue and will generate more pressure to find a solution.
There are 40 independent federal agencies. Collectively, these bodies have a total of 179 voting board members who require Senate confirmation, with agency boards ranging from 3 to 11 people. 30 of those agencies require a political balance, meaning that there can only be a certain number of members from the same political party.
Ongoing Staffing Problems*:
Of the aforementioned 179 positions, 40 are filled by members/commissioners who are serving expired terms. 20 of those terms expired prior to President Trump taking office and 1 expired prior to President Obama taking office. Those 40 members have served on average 1410 days, or just under 4 years, past the end of their term.
In addition to these expired seats, 42 seats are vacant. In total that makes 82 seats that are either expired or vacant, almost half of the total. There are only 29 pending nominations to fill these seats, a mere fraction of the total. Moreover, only 5 people have been confirmed to independent agency boards since the start of the 116th Congress.
The board’s of 4 agencies lack a quorum, limiting or crippling their decision-making power.** Those agencies are the Equal Employment Opportunity Commission (EEOC), the Export-Import Bank (EIB), the Merit Systems Protection Board (MSPB) - which has 0 members - and the United States Postal Service (USPS). Only 19 agencies’ boards have no vacancies, while 9 have one vacancy, 6 have two vacancies, and 6 have three or more vacancies.
The number of seats that are not in good standing is nearly evenly distributed between parties. 17 vacancies are for Democratic seats while 17 are for Republican seats. Similarly, 20 of the members serving expired terms are Republicans and 17 are Democrats. Despite this near parity, recent nominations have not been evenly distributed. President Trump has nominated 18 Republicans to boards requiring a political balance. This is still far short of the 37 total Republican seats that are not in good standing, but it is also far better than the 9 nominations that he has put forward for the 34 Democratic seats that are either vacant or expired.
The President’s seemingly concerted efforts to undermine the political balance of many of these agencies represents a serious escalation in his war on norms. Given Trump’s well-recorded penchant for undermining good governance by leaving important positions throughout the federal government vacant, however, this should hardly come as a surprise.
More shocking is the fact that Senate Democratic leadership has largely failed to protest this abuse of power. For this reason, the Revolving Door Project and Demand Progress led a coalition of public interest groups to send a letter to Senate Majority Leader Chuck Schumer asking that he use all of the tools at his disposal to advance Democratic nominations to these boards. Some senators, like Senator Kirsten Gillibrand (D-NY) and Senator Sherrod Brown (D-OH), have helped draw attention to this issue, but more will need to join in this effort in order to make significant headway.
It would be wrong to assume that these oversights have any bearing on the importance of these nominations. Consider, for example, the Democratic vacancy on the Securities and Exchange Commission. At the moment, the board is made up of one Democratic commissioner, one Independent (the Chair, Jay Clayton), and two Republicans. To the frustration of many Republican lawmakers, Clayton has frequently sided with the Democratic commissioners, which on a balanced body would allow them to prevail. Now, however, with only one Democratic commissioner, it would only lead to a tie, and therefore, no decision. As noted by a phalanx of corporate lawyers at elite Big Law firm Debevoise & Plimpton LLP, the absence of a second Democrat means that fewer securities law violators will be fined, and those who are fined will be fined less forcibly than would be the case with a full Commission.
Similar to the SEC, the Federal Deposit Insurance Commission (FDIC) is another critical agency suffering from politically-motivated obstructionism, with potentially severe consequences for the general public. The FDIC’s responsibilities include oversight of financial institutions, insuring deposits, and managing receiverships.
The FDIC’s board is made up of five members, three requiring Senate confirmation plus the Director of the Consumer Financial Protection Bureau and the Comptroller of the Currency. Among these five members, the only Democrat is Martin Gruenberg, and he is serving an expired term. Since last summer, liberal groups have been pushing for the second Democratic seat, which is currently vacant, to be filled by Graham Steele, a progressive ally. So far, those efforts, however, have not borne fruit, despite Steele’s name having been sent by Schumer to Trump last November.
Finally, the plight of the Federal Election Commission (FEC) is an example of how Trump’s slowdown can exacerbate pre-existing threats to the public good. All of the commissioners are serving expired terms, a problem with its roots in pre-Trump Washington dysfunction. As no more than three members of the same party can be on the commission at any one time, the six member commission is generally split evenly between Democrats and Republicans. At the moment, however, there is only one Democratic commissioner while there are two Republican commissioners and an Independent often but not always aligned with the Democratic Commissioner. This 2-1-1 split has lead to outcomes such as the FEC deciding by a 3-1 vote to “not investigate President Donald Trump’s political campaign for enriching his businesses after considering a complaint from a liberal watchdog group, which alleged that Trump’s boasting about his hotels and use of his private jets constituted a violation of campaign law.” Weintraub has also been notably more concerned than Walther with foreign interference in US elections.
President Trump has yet to advance a nomination for any Democratic Party slots. In contrast, he has nominated a Republican commissioner to replace one of the three sitting Republican commissioners, all of whom are serving expired terms. Although a full board would not be a cure-all for the FEC’s problems (partisanship has previously hampered the commission’s actions), it could increase the likelihood that the commission effectively addresses campaign finance issues like foreign interference.
These are just a few examples among many, all of which have important implications for the good functioning of our government and for the public good. President Trump has staffed his entire administration with deregulatory hounds who have worked hard not to rein in financial industry excess but instead to cater to the wants and whims of those they are tasked with regulating. Democrats should not squander any opportunity they have to counterbalance that dangerous pressure. These agencies, and Trump’s politically motivated attacks on them, are deserving of greater attention and we sincerely hope that they do not languish in the shadows much longer.
* Rules governing personnel at these agencies diverge frequently. Many, but not all, allow sitting Commissioners to remain for some period of time after their term expires but before being replaced, and of those agencies, some allow Commissioners on an expired term to remain in office indefinitely.
** Agencies vary with respect to what powers are lost in the absence of a quorum.