January 27, 2020
As we have previously highlighted, independent federal agencies receive too little attention relative to their importance to our collective safety and prosperity. The Revolving Door Project has worked through multiple channels to shed light on these overlooked agencies and the threats that they face. We hope public education will generate pressure to safeguard the independence of these agencies and ensure that they are staffed with advocates for the public interest rather than corporate insiders.
For the past year, the Revolving Door Project has been closely monitoring leadership positions at 39 independent federal agencies through the Independent Federal Agency Monitor which tracks “appointments to agency leadership positions through the confirmation process and beyond.” This unique tool gives the public access to previously opaque, scattered information. By bringing this information together in a centralized database, the Spotlight helps the public to think about the de-centralized regulatory apparatus more holistically.
With 2019 having come to a close, we are reflecting on the year’s developments at independent agencies to take stock of any progress that has been made and draw further attention to what still needs to be done.
The Agency Spotlight monitors leadership positions at 39 independent federal agencies. Collectively, these bodies have a total of 174 members/leaders who require Senate confirmation. The agencies with multi-member boards, rather than single directors, have boards ranging from 3 to 11 people. 28 of those agencies require a political balance, meaning that there can only be a certain number of members from the same political party.
A Year Has Passed but How Much Has Changed?
Another year of Trump’s term has passed and not much has changed in the realm of independent agency nominations. Nominations and confirmations continue to lag the pace at which terms expire and seats are vacated. And while certain high profile seats, such as those on the Equal Employment Opportunity Commission (EEOC) or the Securities and Exchange Commission (SEC), have been filled in the last year, many important seats ended the year as they began: vacant. Consider, for example, the vacancies at the National Labor Relations Board (NLRB), the Federal Election Commission (FEC) or the Merit Systems Protection Board (MSPB) that are all over a year old. Indeed, in the last year, the story across the breadth of agencies that we track can best be described as one of stagnation.
At the beginning of 2019, 41 of the 174 seats the Agency Spotlight tracks were vacant. Although President Trump did make numerous nominations throughout the year, and the Senate confirmed many of those officials, it was not enough to keep pace with the rate at which independent agency officials were leaving. Throughout 2019, 27 independent agency officials left their positions. As a result, at the end of 2019 43 seats sat empty.
Some progress is evident, however, when one looks at expired seats.* At the beginning of 2019, 37 of the seats we track were expired. By the end, that number had fallen to 28.
Thus, at the beginning of the year there were, in total, 78 seats that were not in good standing (either expired or vacant), versus 71 seats at the end of the year. While this is a modest improvement, the rate of nominations and confirmations remains wholly insufficient to rectify the crisis of independent agency leadership.
The Trump administration nominated a total of 56 individuals to independent agency leadership positions throughout the course of 2019. Of those, 10 nominations were either returned under Senate rules or withdrawn, leaving 46 nominations for Senate consideration. The Senate confirmed 33 of those nominations. The remaining 13 nominations are still pending.
56 nominations is equal to just under 75 percent of the vacant and expired seats. Taken in isolation this could be construed as a sign that the Trump administration was taking this crisis seriously. But, even as nominations were being made, other seats were expiring or being vacated. Throughout 2019, 27 independent agency officials left their positions and the terms of an additional 9 expired. If the administration were to have filled all of these positions, and ensure that all independent agency officials were serving current terms, it would have needed to nominate 114 people. Ultimately, it put forward nominations for less than half that number.
The White House, however, is not solely to blame for this ongoing problem. The Senate ultimately only confirmed 33 of those individuals nominated — less than one-third the number necessary to restore all agency seats to good standing — even as it rushed to confirm over one hundred judges in the last year. In one of the most egregious cases, Senate Majority Leader Mitch McConnell failed to move three nominations for the Merit Systems Protection Board (MSPB), all of which were voted out of committee between six and ten months ago, despite the Board having been leaderless since March of 2019. Without any members the MSPB has been unable to carry out its vital mission of protecting federal employees from abuse and partisan political interference.
The Merit Systems Protection Board is not, however, the only agency that has been incapacitated thanks to vacancies in the last year. The following agencies have all lacked a quorum** for some period of time in 2019:
The Equal Employment Opportunity Commission (EEOC) from January 2019 to May 2019
The Export-Import Bank (EXIMBANK) from July of 2015 to May of 2019
The Federal Election Commission (FEC) from August 2019 to present
The Merit Systems Protection Board (MSPB) from March 2018 to present (it has had 0 members since March of 2019)
The Occupational Safety and Health Review Commission (OSHRC) from May 2019 to January 2020
The United States Postal Service (USPS) from December 2014 to August 2019
The United States Sentencing Commission (USSC) from January of 2019 to present
It should also be noted that, just as many vacant and expired seats remain, so does the imbalance in their distribution between parties. Many of these agencies’ boards are statutorily designed to be politically balanced. The President selects nominees from his own party but, for appointees of the opposing party, generally nominates those recommended to him by senior Senators of that party.*** The number of Democratic versus Republican vacancies remains virtually unchanged since the start of the year. 2019 began with 15 Democratic vacancies and 16 Republican ones. It ended with 16 Democratic vacancies and 16 Republican ones.
While these numbers are equal in an absolute sense, when viewed as a share of total Democratic and Republican seats, the imbalance becomes clear. At the end of the year, 16 of 55 (or 29 percent) of Democratic seats were vacant versus 16 of 85 (or 18 percent) of Republican seats.
Meanwhile, the number of floor speeches the Senate Democratic leadership has offered decrying this imbalance is 0.
* 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.
*** Norris, Floyd, “Independent Agencies, Sometimes in Name Only,” The New York Times, Aug. 8, 2013, https://www.nytimes.com/2013/08/09/business/independent-agencies-sometimes-in-name-only.html