The American Prospect, September 18, 2019
Despite the fact that this administration has generally shown nothing but contempt for the public interest, revelations earlier this year about the Consumer Product Safety Commission’s failure to take action to protect the lives of infants and children still stood out. Last week, however, one of its members set herself apart for a different reason: Outgoing Acting Chair Ann Marie Buerkle appears to have been afflicted by a rare case of a conscience. In a highly unusual move, she voted for a Democratic commissioner to succeed her as acting chair.
Buerkle’s decision illustrates two principles: One, the breadth of the executive branch matters. Did you even know there was a regulator designed to, for example, protect babies from death due to negligent consumer products? And second, it is a mistake to view any independent agency seats, even minority ones, as unimportant. Senate Democrats should take note.
Early this year, the Consumer Product Safety Commission (CPSC) took an unusual turn in the spotlight thanks to two consecutive scandals. First, in April, it emerged that the commission had allowed the company Britax to avoid recalling its BOB jogging strollers, despite reports that the malfunctioning front wheel had resulted in almost 100 injuries and the commission staff’s finding that the product was not safe. Then, just over a week later, the CPSC issued a recall for Fisher-Price’s Rock ’n Play inclined sleeper, following an analysis by Consumer Reports showing that over 30 infants had died in the product since its introduction in 2009. As reporters dug more into the recall, it became clear that the CPSC had long been aware of evidence that the Rock ’n Play and other inclined sleepers might not be safe. They had failed, however, to take swift action.
Soon after, acting CPSC Chair Buerkle announced that she would step down from the commission at the end of her term in October. That was unremarkable; it is not uncommon for political appointees to depart in the face of public controversy (especially since many of these regulators can be assured that more lucrative, private-sector positions out of the limelight await them).
More surprising, however, was her decision to cast a swing vote in favor of one of the commission’s Democrats to be her successor as acting chair. While the other two Republicans chose one of their own as acting chair, Buerkle sided with the Democrats, and that handed commission veteran Robert Adler the position, despite the fact that Republicans currently have a 3-2 majority.
Buerkle’s departure will still leave the commission in a 2-2 gridlock. Her decision, however, to prioritize Adler’s experience and clear commitment to the public interest over party means that Democrats will have a relatively elevated platform to advocate on behalf of consumer safety. Furthermore, while gridlock is undesirable, it is much preferred to active deregulation. Without a majority, the commission’s anti-regulatory Republicans can do less damage. Even if, in light of this unexpected result, Trump acts with uncharacteristic speed to nominate a new chair, this is consequential.
This blip was only possible, however, because the commission is staffed as it was statutorily designed to be. That meant that one majority commissioner’s change of heart could make a real impact.
Imagine instead that one of the minority party’s seats was empty. Buerkle’s vote and her departure would have changed nothing. Instead, Republicans would have maintained the majority and been free to continue slashing consumer safety regulations as they pleased.
This is the state of affairs at many independent federal agencies. The Farm Credit Administration (FCA), Federal Deposit Insurance Corporation (FDIC), Federal Maritime Commission (FMC), Nuclear Regulatory Commission (NRC), National Labor Relations Board (NLRB), 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 filled.
As the CPSC case demonstrates, keeping these seats filled with minority members is important. While Buerkle’s vote was unusual, her departure is not. Turnover, due to expiring terms or early departures, is quite common. Only if the boards are staffed as designed, however, can these departures shift the balance of power.
Are you skeptical that this really matters? Don’t just take our word for it. Listen, if you like, to the partners at elite corporate law firm Debevoise & Plimpton who confidently (and publicly) assured their clients this year that they shouldn’t fear securities law enforcement due to the 3-1 Republican majority on the Securities and Exchange Commission (SEC) board. When the commission was fully staffed (i.e., three Republicans to two Democrats), this was no longer assured, as more moderate SEC Chair Jay Clayton has at times sided with the Democratic commissioners. With only one Democrat, however, his swing vote didn’t matter.
So who is to blame for these consequential imbalances? First and foremost, of course, it is President Trump. He is ultimately responsible for nominating individuals to independent agency boards. Since taking office, however, he has frequently failed to do so, especially when the vacancy in question is supposed to be filled by a Democrat. A Democratic seat on the NLRB, for instance, has sat vacant since January without a nomination.
Trump is not, however, the only one implicated in this failure. Although the president formally nominates minority-party commissioners, tradition holds that the minority party’s Senate leader chooses those nominees. Senate Minority Leader Chuck Schumer has failed to treat this task with any urgency. Instead, he has often allowed months to pass from the time a seat expires, or worse, is vacated, to the time he passes along a name.
Perhaps even worse, the Senate Democratic Caucus has made Trump’s additional, egregious delays costless. Unless you track these nominations yourself, you would not know that Trump has been dragging his feet because, with few exceptions, Senate Democrats have not let out a peep about this ongoing crisis. Their silence is a perplexing and a wholly unnecessary surrender. While they may be in the minority, Senate Democrats are not powerless to pressure the president or at least to make his actions costly.
As the CPSC example illustrates, fighting for these seats matters. Opportunities to exert influence while in the minority are few and far between, but they do exist for politicians willing to seize them. That requires, however, refusing to give an inch and fighting hard to ensure that the party is well positioned to benefit from strokes of luck (or the rare case in which members of the opposition develop a conscience). Democrats won out this time (through no fault of their own, as the two sitting Democratic CPSC commissioners were confirmed before Trump came to office), but they are unlikely to be so lucky in the future.
Eleanor Eagan is a research assistant with the Revolving Door Project.