Michael Brochstein/Sipa USA via AP Images
Lina Khan, chair of the Federal Trade Commission, being sworn in at a hearing of the House Judiciary Committee at the U.S. Capitol, July 13, 2023
CNBC, America’s unadulterated voice of capital, has turned itself into the Lina Khan Network (LKN) over the past two months. Virtually every guest who appears on LKN is inevitably asked whether Kamala Harris will keep the Federal Trade Commission chair in place, or whether she will be sacrificed to the investor class.
Since LinkedIn co-founder Reid Hoffman and conglomerate creator Barry Diller overtly called for Khan’s head, other LKN guests have been more circumspect. But some reveal their ignorance just by opening their mouth. That brings us to a recent LKN segment with former Obama campaign manager Jim Messina.
Asked the inevitable question, Messina replied, “Her term is going to be up, and I don’t think there will be any chance in a this-close Senate that you will see people like her or Gary Gensler get confirmed.” (Gensler is the current chair of the Securities and Exchange Commission, hated by crypto moguls everywhere for daring to enforce the securities laws. Messina is the director of a crypto firm and has a blockchain division of his consulting practice, in case you were wondering how Gensler’s name came up unprompted.)
It’s hard to fit into one article how much wrong there is here, but I’ll condense it. First of all, both Khan and Gensler were confirmed in 2021, in a 50-50 Senate. Second of all, neither of them needs to be confirmed to continue serving in their job.
This is actually an important point to make across the board. The state of the race right now suggests that it will be unlikely for Kamala Harris to have the wherewithal to completely overhaul the current executive team. She will have to decide where to spend political capital to get her personnel in place. And some fights are going to be deemed not worth having with a hostile Senate. Out of necessity, the Harris administration, at least to start, could look a lot like the Biden administration.
If Harris wins, it will be the first time since 1989 that an incoming president is replacing someone from their own party. In that instance, President Reagan asked for the resignations of all of his Cabinet members to give George H.W. Bush a smooth transition into a new administration. Bush did ultimately hang on to three Reagan Cabinet members: Treasury Secretary Nicholas Brady, Attorney General Dick Thornburgh, and Education Secretary Lauro Cavazos.
That was a time of far greater comity in the Senate, when presidents were granted fairly wide latitude by the opposition party to pick their top staff. Even though Democrats held 55 seats in the Senate, Bush was able to get nearly all of his appointees through. (One nominee, defense secretary hopeful John Tower, was famously rejected in committee.) Today, the threshold for presidential appointees is lower, at only 50 votes instead of 60. But rising partisanship means that Republicans are far more unlikely to vote for Harris nominees than Democrats were for Bush.
The state of the race right now suggests that it will be unlikely for Kamala Harris to have the wherewithal to completely overhaul the current executive team.
Many Biden nominees won the thinnest possible majority to get confirmed. (Some did earn broad bipartisan support, like … Lina Khan, who was confirmed 69-28 in 2021.) Julie Su barely got confirmed as deputy secretary, but did not have the votes to step into the secretary of labor position when Marty Walsh left. So the Biden administration did something unusual: They kept her in place as acting secretary for close to two years.
That is perfectly legal. The Labor Department’s statute clearly states that the deputy secretary can “perform the duties of the secretary” indefinitely in the event of a resignation.
There’s similar statutory authority for Lina Khan. Technically speaking, her formal term of office ends next Wednesday, September 25. But the FTC statute states explicitly that a commissioner “shall continue to serve until his [or her] successor shall have been appointed.” In other words, Lina Khan does not need to face a Senate confirmation again to continue serving; that’s just the factual reality.
The same is true of every member of Biden’s Cabinet. Robert Gates, for example, continued on as Barack Obama’s defense secretary as a holdover from the Bush administration from 2009 to 2011. He did not need to be reconfirmed. Even if all Cabinet members offered their resignation to Harris, they could offer to remain in office until a replacement was selected. “Every Cabinet member could just stay,” noted Jeff Hauser, executive director of the Revolving Door Project.
For independent agencies and commissions, staying power depends on the statute, or on their term in office. For instance, Gary Gensler was confirmed in 2021 to a five-year term, and SEC commissioners can serve up to 18 months after that term is up as long as they are not replaced. So Gensler can legally stay in his post until December 2027. (Caroline Crenshaw, a Democratic commissioner of the SEC, only has until December 2025, and the commission will fall into gridlock after that without action; that makes reconfirming her in the current Democratic Senate a priority.)
Now, it is not ideal to run a presidential administration with retreads from the last administration. But it is a very possible reality that Harris will have to face. I’m not breaking news when I say that Democrats holding the Senate doesn’t look like a good bet right now. With Jon Tester in deep trouble in Montana, the most likely best-case scenario gives Democrats 49 Senate seats, and maybe a couple less. There’s certainly a path to a Democratic Senate majority without Tester, through Texas, Florida, and perhaps Nebraska (if the independent candidate Dan Osborn decides to caucus with Democrats, which he has not committed to). But those are long shots.
Given this likelihood, if Harris is elected, she’ll have a choice to make: spend months trying to get her nominees in place in a Senate that is more inclined to deliver her bad headlines, or roll with a near-term continuity plan. She could pick some high-profile fights, but the idea of reaching all the way down to subcabinet appointments and independent commissioners sounds like a needless headache.
It’s true that some Cabinet officials are simply not going to want to stick around. Veterans Affairs Secretary Denis McDonough has already announced his departure at the end of Biden’s term, and Treasury Secretary Janet Yellen is expected to leave. In that case, the Federal Vacancies Reform Act holds for temporary appointments, usually of the first assistant but in general of any Senate-confirmed officer or senior agency appointee.
That provides even more tools for Harris to stretch things out. In the Treasury example, Wally Adeyemo, the deputy secretary, could serve for up to 300 days after Inauguration Day, or until November 16, 2025. If there’s a nomination for the position, Adeyemo can potentially serve even longer, until that nominee is confirmed. And even if that nominee is rejected, Adeyemo could serve for 210 days after that rejection. Harris could then nominate someone else and keep Adeyemo in place more or less indefinitely.
Research has shown that acting appointments don’t get as much done as confirmed Cabinet officials. But if it’s made clear that the acting appointee is there to stay until they’re confirmed, as in the case of Su, they can be a muscular head of a department, as Su is. In fact, Su herself can keep serving, given her deputy status, in the Harris administration.
Obviously, Harris is going to want her team in. But in a scenario with a Republican Senate, I think it will become clear that she’ll have to pick and choose where to push, and how to cajole senators like Lisa Murkowski (R-AK) and Susan Collins (R-ME). Even that possibility depends on a new Republican Senate majority leader, who will replace outgoing Sen. Mitch McConnell (R-KY), allowing nominees on the floor at all.
So what does this mean for Lina Khan, and the future of LKN? It means that she can keep serving at the FTC until there’s a confirmed replacement. Harris could name that nominee, but the Senate would have to confirm them. Harris could also demote Khan from chair. But since the LKN parade of titans of industry with business before the FTC made their opinions known, ousting her would be one of the more blatant donor quid pro quo examples in history. If Khan needed to be confirmed, Harris could just blame it on the Republican Senate. But she doesn’t.
