August 01, 2019
As we have previously highlighted, the federal government’s forty 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.
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 release monthly summaries of topline statistics that capture the current state of the independent federal agencies. 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 177 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. 19 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 1017 days, or just under 3 years, past the end of their term.
In addition to these expired seats, 46 seats are vacant (2 more than last month). In total that makes 86 seats that are either expired or vacant, almost half of the total. There are only 33 pending nominations to fill these seats, a mere fraction of the total. Moreover, only 15 people have been confirmed to independent agency boards since the start of the 116th Congress. 0 people were confirmed in July. President Trump put forward 4 new nominations this month. 2 seats, however, expired this month.
The boards of 4 agencies lack a quorum, limiting or crippling their decision-making power.** Those agencies are the Merit Systems Protection Board (MSPB) – which has 0 members – the Occupational Safety and Health Review Commission (OSHRC), the United States Postal Service (USPS), the United States Sentencing Commission (USSC).
The MSPB has 3 vacancies out of 3 positions, 2 short of a quorum. 2 of those seats are for Republicans and 1 is for a Democrat. The President has advanced 3 nominations, 1 for a Democratic seat and 2 for Republican seats.
The OSHRC has 2 vacancies out of 3 positions, 1 short of a quorum. The President has advanced 0 nominations for these seats
The USPS has 7 vacancies out of 11 positions, 2 short of a quorum. 4 of those vacancies are for Republican seats and 3 are for Democratic seats. The President has advanced 4 nominations, 3 for Republican seats and 1 for a Democratic seat.
The USSC has 5 vacancies out of 7 positions, 2 short of a quorum. 3 of those vacancies are for Republican seats and 2 are for Democratic seats. The President has advanced 0 nominations for these seats.
All 3 nominations for the MSPB board and all 4 of the nominations for the USPS board (enough in each case to restore a quorum) have been voted out of committee, in the MSPB’s case in mid-February. That means Senate Majority Leader Mitch McConnell is the only reason those agencies are nonfunctional. McConnell’s failure to afford these nominees a vote is particularly indefensible in light of the fact that McConnell deployed a “nuclear option” that makes many confirmation votes 15 times faster than before (two versus 30 hours), rendering “floor time” much less scarce.
Only 18 agencies’ boards have no vacancies, while 8 have one vacancy, 10 have two vacancies, and 4 have three or more vacancies.
There are 5 agency boards whose sitting members/commissioners are all serving expired terms. They are the Federal Election Commission (FEC), the Federal Retirement Thrift Investment Board (FRTIB), the National Indian Gaming Commission (NIGC), the United States Agency for Global Media (USAGM), and the United States Parole Commission (USPC).
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.*** 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.****
Despite there being more Republican than Democratic positions at these agencies, a majority of vacancies are for Democratic seats. Of 146 seats on politically-balanced boards, at present 85 are either occupied by, or reserved for, Republican nominees versus 62 for Democratic nominees. 17 of those 85 Republican seats are vacant versus 19 of the 62 Democratic seats. That is a 20 percent vacancy rate for Republican seats versus a 31 percent rate for Democratic ones. 19 of the members serving expired terms are Republicans (for 22 percent of total Republican seats) and 16 are Democrats (26 percent of total Democratic seats). Despite near parity in the absolute number of vacancies and expired seats, recent nominations have not been evenly distributed. President Trump has 19 pending Republican nominations to boards requiring a political balance. This is still far short of the 36 total Republican seats that are not in good standing, but it is also far better than the 9 pending nominations that he has put forward for the 35 Democratic seats that are either vacant or expired.
In the coming month, 1 seat, J Mark McWatters’ on the National Credit Union Administration (NCUA), will expire on August 2. The board’s rules allow members to stay on the board until a successor takes their place so this is unlikely to lead to an immediate vacancy.
* 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
**** Senator Sherrod Brown to President Donald Trump, April 23, 2019, Website of United States Senate Committee on Banking, Housing, and Urban Affairs. https://www.banking.senate.gov/imo/media/doc/4.23.2019%20SB%20to%20DJT%20re%20FDIC%20Nominees%20FINAL%20to%20PDF.pdf