Tom Williams/CQ Roll Call via AP Images
Senate Majority Leader Mitch McConnell (R-KY) at the Capitol, December 1, 2020
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
It’s December, and Senate Majority Leader Mitch McConnell is still dodging calls to explicitly acknowledge that President Trump lost the election. It’s clear, however, that he knows who the next president will be. True to form, he’s working hard to undermine Joe Biden by confirming Trump’s nominees to independent agencies in the final days. This could shut down Biden’s ability to influence critical agencies’ composition for months, if not years, with severe consequences for regulatory enforcement and new rulemaking.
As the Revolving Door Project has thoroughly documented, during the Trump presidency, seats on independent agency boards have been routinely left open for months and years at a time. Leaders at independent agencies who are serving in expired seats have been in place for an average of three years past the ends of their terms.
Unlike in most other parts of the executive branch, vacant seats cannot be filled with acting officials. So for portions (or in one case, all) of Trump’s presidency, several agencies have been unable to make decisions or take action because they lacked sufficient membership to constitute a quorum. Throughout this whole period, nominations have been slow to arrive in the Senate and slow to move once they’re there. That has been particularly true for Democratic nominees (many independent-agency statutes specify that a certain number of seats go to people who are not a member of the president’s party), who get recommended by Chuck Schumer.
With few exceptions, neither Trump nor McConnell particularly cared if these agencies were fully staffed. So long as they maintained a majority of deregulatory fanatics at a few key agencies like the Securities and Exchange Commission (SEC) or the National Labor Relations Board (NLRB), it didn’t matter if they had a full slate of commissioners. Meanwhile, they were perfectly content to let potentially meddlesome agencies like the Federal Election Commission (FEC) and the Merit Systems Protection Board (MSPB) effectively shut down.
All of a sudden, however, confirming nominees to vacant slots on independent agency boards has become a top priority for McConnell. Nominees who had languished for months were swept through confirmation processes in recent weeks to seats on the Federal Reserve, the Federal Communications Commission (FCC), the Federal Election Commission (FEC), the Federal Energy Regulatory Commission (FERC), and the National Credit Union Administration (NCUA).
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Why the rush? Simply put, with Democratic majorities under Joe Biden, these agencies might actually start enforcing the law for large corporations again or, even worse, do some good for regular people. With these confirmations, McConnell has forestalled that dreaded moment.
In some cases, all he’s done is ensure gridlock, which will probably suit him just fine. At the FCC, for example, thanks to the confirmation of Nathan Simington to a vacant seat, chair Ajit Pai’s departure will deadlock the board with two Republicans and two Democrats, instead of a 2-1 Democratic majority. With no new confirmations (which is entirely plausible should Republicans hold the Senate), Joe Biden could be without a Democratic FCC majority for his entire first term. That means that the body will not roll back the outgoing administration’s attacks on net neutrality, challenge telecom mergers, or expand access to cellphones and broadband at a moment when these tools are more critical than ever.
Failing to roll back the Trump legacy is damaging enough, but McConnell’s under-the-wire confirmations have made way for Republican majorities at FERC and NCUA that are likely to expand it even further. With no new confirmations, those majorities could last for most or all of Biden’s first term. A Republican-controlled FERC is sure to continue rubber-stamping disastrous pipeline projects while failing to use its authority to strengthen the electrical grid. Meanwhile, the current NCUA majority could stand in the way of efforts to incorporate considerations of climate risk into financial regulatory decisions.
One cannot help but interpret another set of confirmations, this time to the Federal Reserve, as yet another effort to shut down avenues for Biden to govern effectively. The Fed Board is already made up of a majority of Trump appointees, but with two seats open, Biden could have quickly nudged the body toward a bolder stance on financial regulation, climate change, and COVID relief. In McConnell’s eyes, I’m sure that was nothing short of unacceptable. So he made sure that Christopher Waller was confirmed to one of the vacant spots. (He tried to get the fanatical Judy Shelton confirmed to the other, but even he couldn’t pull that one off.)
Members of these boards are protected from removal except “for cause.” In other words, unless the incoming administration can prove that officials have been negligent or engaged in malfeasance, options to replace last-minute Trump appointees are limited. They are not, however, nonexistent. Although the president cannot remove members of these bodies, in many cases he can demote the chair and choose a replacement from among the board’s other members. Even without a majority of co-partisans, the chairperson is a powerful figure with the ability to set the agency’s agenda, wield its convening power, and position it in the public arena. Wherever this is an option, Biden must deploy it.
Even more consequentially, Biden has the means through recess appointments to circumvent McConnell when the majority leader attempts to keep the vacancies that do occur open. Although Congress rarely goes into recess for long enough to permit these appointments, the Constitution gives the president the power to adjourn Congress when there is a disagreement between the House and the Senate over the recess. With FCC chair Pai reportedly stepping down, Biden can use a recess appointment to get the FCC working for regular people again without delay.
For four years, Mitch McConnell could not be bothered to make time on the Senate calendar to ensure that independent agencies had sufficient membership to operate as intended or operate at all. Now that these agencies offer a means to undermine the Biden presidency, however, they are a top priority. Joe Biden should not surrender to this cynical attack. He must use all available tools to get these agencies working as effectively and as quickly as possible to serve the public interest.
