2020 Post-Election Analysis Issue by Issue: Consumer Product Safety
Former Vice President Joe Biden’s win on Election Day will result in a change in the composition of the U.S. Consumer Product Safety Commission (CPSC). But, a change to majority Democrats for the five-person Commission is complicated, with several unique twists that could result in a majority Republican Commission for the duration of Biden’s first term.
President Trump nominated Nancy Beck for the Commissioner and Chairman slot in March 2020, but her nomination has stalled in the Senate. Senator Shelley Moore Capito (R-WV) announced her opposition to Beck due to concerns over Beck’s handling of Perfluorooctanoic acid (PFAS) issues while at the Environmental Protection Agency and Office of Management and Budget. Senator Capito is a member of the Senate Commerce Committee, and her opposition brings the Committee vote at best to a tie, which means the nomination cannot advance to the full Senate.
As a Republican majority on the Commission can be guaranteed until 2024 with Beck’s confirmation (barring any resignations), one would assume Senate Republican leadership would prioritize moving Beck’s nomination during the Lame Duck session. It remains to be seen whether Senator Capito will allow Beck’s nomination to advance to the Senate floor. Even on the Senate floor, Capito would still have the opportunity to vote against Beck. Senator Susan Collins (R-ME) also announced her opposition to Beck’s nomination. Beck is not expected to win any Democratic support and, with two already announced Republican defectors, she could not lose more than one more Republican vote with the Republicans only having a 51-48 advantage. (Vice President Pence could break a 50-50 tie.)
If Beck is confirmed, she would serve as CPSC chairman until January 20, 2021 when Biden takes the oath of office. At that point, the Commission will vote on a new acting chair before the president appoints a new chairman.
If Republicans are unsuccessful in confirming Beck, Biden would then nominate his own chair to a seven-year term and switch the power balance to 3-2 in favor of Democrats. Acting Chair Adler has already said that he has no desire for another full term, which means a new nominee and confirmation process. CPSC watchers should also keep their eyes on October 2021 when Biden nominates a replacement for Democratic Commissioner Elliot Kaye, whose term has expired and who must depart the Commission by then. A 3-2 Democratic-controlled Commission would likely increase enforcement efforts and attempt to pass more mandatory safety standards.
If you followed all of that math and stayed with us, we want to leave you with one final note on the Congressional front: We expect the House to have a maintained interest in CPSC issues and possibly attempt to revamp the Consumer Product Safety Improvement Act which was last updated in 2008. Changes could include modifications to the voluntary standard process, elimination of 6(b) confidentiality protections for industry and weakening the current deference to voluntary safety standards in favor of mandatory standards. However, the likelihood of these changes moving with Senate Republican approval are very slim.
If the Republicans do secure a 3-2 majority on the Commission, look instead for an increased oversight focus on Commission action/inaction led by the House Energy & Commerce Consumer Protection Subcommittee Democrats.