February 25, 2020

February 25, 2020

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February 24, 2020

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2019 Outlook: What to Expect from the CPSC in the 116th Congress

As the 116th Congress convenes, the uncertainty surrounding it is almost limitless, but one virtual certainty is that it will spend very little time on the U.S. Consumer Product Safety Commission (CPSC). This is hardly novel, and simply puts more weight behind the time devoted to this agency, which regulates manufacturers’ and other businesses’ product production across the country.

The agency is small: As Commissioner Bob Adler often notes, its entire budget is generally less than the requested budget increase of the U.S. Food and Drug Administration. It is also lodged in Bethesda, Maryland – psychologically so far removed from Capitol Hill that it can seem fictional. As a result, the CPSC’s actions and needs are usually something less than top-of-mind for members and staffers. With a divided Congress and a White House in survival mode, we should expect a torpid pace for a meager legislative agenda that will not showcase the CPSC. The agency may have a minor role to play in any data privacy legislation, but any significant new work or new look for the CPSC is unlikely.

Who Will Oversee the CPSC?

There will also be some new faces on the committees responsible for the CPSC, which may introduce new ideas.

In the House, it’s a simple role-swap. Greg Walden (R-OR) and Frank Pallone (D-NJ) were Chairman and Ranking Member, respectively, of the House Energy and Commerce Committee in the 115th Congress. For the 116th, Walden will pass the gavel to Pallone.

In the Senate, both Senate Commerce, Science, and Transportation Chairman John Thune (R-SD, advancing in Senate GOP leadership) and Ranking Member Bill Nelson (D-FL, lost reelection) leave their posts. Roger Wicker (R-MS) will take over as chair, while Maria Cantwell (D-WA) will be ranking.

Nelson’s departure dovetails with the most pressing CPSC issue for the 116th Congress: Who will lead the agency itself? For the second time, the Senate adjourned without voting on Acting Chairman Ann Marie Buerkle’s[1] nominations for the permanent chair and for a new term. Nelson was widely viewed as the primary roadblock for Buerkle, as he was critical of her position against regulating carbon monoxide emissions from portable generators. His exit – and Republicans’ successful defense of their majority – may clear the way.

Presumably, President Trump will again re-nominate Buerkle, and the Commerce Committee will again send her nominations to the floor. But, will Republican leadership view cementing GOP control of the CPSC as a victory sufficient to warrant the use of the political capital necessary to confirm her over any continued Democratic objections? And what will the answer to that question mean for CPSC-regulated businesses?

Buerkle has shown a light touch as Acting Chair, retaining many senior CPSC staffers and leaving the former administration’s regulatory agenda largely intact. She may worry that dramatic deregulatory moves would provide fresh grounds for continued opposition. Presumably, if she were confirmed, she would seek to scale back some rules or, at a minimum, terminate controversial rulemakings. The proposed new voluntary recall and information disclosure (“6b”) rules would likely be the primary candidates, but product-specific work on generators, recreational off-highway vehicles (ROVs), and table saws would be tempting targets, as well.

The CPSC Future at Stake

Beyond these particular regulatory questions, however, the fate of Buerkle’s nominations will shape CPSC policy well into the next decade.

Her current term ends October 27, 2019. Strictly speaking, it ended October 27, 2018, but the CPSC’s statute allows her to remain in her seat for up to a year if no successor is confirmed.

If she is confirmed, the three Republicans currently on the Commission would be in office until at least 2024. This would likely enable a greater push for rule revision or deregulation, and it could open the door for more structural changes, such as a more predictable penalty structure, reduced burdens for product testing and certification, or a more text-bound interpretation of the phrase “durable nursery products.”

If Democrats keep Buerkle from a new term, they could hand a prospective Democratic president a new majority as soon as 2021, likely returning the agency to the path of expansive use of its regulatory authority and seeking higher penalties for the sake of higher penalties. In the meantime, the CPSC would have a 2-2 party split, and the first Republican CPSC majority in a decade would have lasted no more than 387 days.

Republicans can face steep costs for wading into CPSC waters. They risk being labeled reckless or anti-safety. Worse, many consumers are unfamiliar with the CPSC’s outsized role in the U.S. economy (or even its existence), so the political gains of a victory are small.

In the 115th Congress, Democrats’ opposition benefited from the odd overlap between four-year presidencies and seven-year commission terms, which combined to forestall for nine months President Trump’s opportunity to reshape the CPSC. If the Senate confirms Buerkle, Democrats could find themselves on the wrong side of that dynamic, and their timing would be even worse: A potential Democratic 2021-2025 presidential term would be nearly over by the time the first GOP-held CPSC seat could be available.

One hope for Buerkle lies in the calendar. The next two seats to open – in 2020 and 2021, respectively – will be those currently held by Democrats. Senate Republicans may be able to convince their colleagues to pair one of those seats with confirmation of Buerkle’s new term. However, since a vacancy in either of those seats would not alter the majority, they wouldn’t suffer for leaving Buerkle’s and another seat empty in the hopes of an opportunity to shift commission control.

Another possibility is that Senate Republicans could link Buerkle’s confirmation to some unrelated Democratic priority, whether a legislative issue or another nomination. However, this option has existed for each of the 17 months since her nominations hit the Senate floor, and Republicans have not used it.

Indeed, tying her confirmation to other matters may have had its best chance last summer, when Majority Leader Mitch McConnell gave back recess weeks that Minority Leader Chuck Schumer desperately needed for his members’ campaigns. McConnell traded time for floor votes on a list of more than a dozen nominees; Buerkle was not on that list. The same bargain would be harder to strike in an off year, particularly with a 2020 Senate map that will likely favor Democrats.

The best hope for Buerkle is McConnell. He saw the 115th Congress as an opportunity to cement his legacy by reshaping the federal bench, confirming scores of lifetime-appointed judges, many of whom will be on the bench long after he leaves the Senate.

McConnell has not seemingly placed the same value on building a legacy in the policymaking arms of government, but those working to confirm Buerkle would be wise to present him with a question: Would he rather have the certainty of a Republican CPSC through 2024, or the real possibility of a Democratic CPSC as soon as 2021?

Staffing this small agency in Bethesda may not, in itself, be a top priority, but insulating a GOP majority against whatever comes in (or before) 2020 would be an opportunity to project influence that few other confirmation votes present.

[1] I should disclose that I had the privilege of working alongside Chairman Buerkle for over two years at CPSC. I hold her in the highest regard as a public servant and as a person, and I consider her a friend and a mentor. At a personal level, I regret the challenging situation she’s endured, and I applaud her characteristic strength and dignity in doing so. At a political level, I anticipate that challenging situation will continue.

© 2020 Schiff Hardin LLP


About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer

With experience spanning federal government, private practice, and in-house roles, Mike advises clients on legal and regulatory matters particularly in the area of consumer goods and product safety.

Mike has held multiple positions at the U.S. Consumer Product Safety Commission (CPSC). He served as senior counsel for the Office of CPSC Commissioner Joseph P. Mohorovic from 2014-2017, where he advised on various policy, enforcement, and ethics issues. He led several efforts to reform rules and regulations, including an initiative to reduce the paperwork burden on CPSC-regulated...