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Lingering Uncertainties Facing the CPSC: If Not Beck, Then Who?

In this two-part series, we take a close look at the uncertainties facing the U.S Consumer Product Safety Commission (CPSC). This post analyzes the difficulties surrounding President Trump’s current CPSC nominee and discusses how the agency would be effective if confirmations remain elusive. In post 2, we will examine how the November election might affect the odds of a confirmation next year – and the risks to the agency if the post remains unfilled.

If Not Beck, Then Who? Next Steps in CPSC Leadership

In March, President Trump nominated Dr. Nancy Beck for both a seat on the CPSC through 2025 and the chairpersonship of the agency. Currently, the Commission has two Democrats and two Republicans, with Democrat Bob Adler serving as the acting chair.

If Beck were confirmed, she would, for the moment, create a 3-2 Republican majority at the CPSC, the first Republican majority and permanent Republican chair since 2006. Moreover, with the terms of Republicans Dana Baiocco and Peter Feldman set to run through 2024 and 2026, respectively, that GOP control could last effectively an entire presidential term.

But Beck’s confirmations are not certain.  The COVID-19 pandemic has complicated the Senate’s task of considering and confirming any nominee, but Beck faces additional challenges. In June, the U.S. Senate Committee on Commerce, Science, and Transportation held a hearing. The next day, committee member Senator Shelley Moore Capito (R-WV) announced she would not support Beck’s nominations, and Senator Susan Collins (R-ME) stated that she too would oppose the nominations if they reached the Senate floor.

Now, months later and with dwindling legislative days left before the 2020 election, the odds against Beck’s confirmation are growing. Further, the White House recently withdrew the re-nomination of Federal Communications Commission chair Michael O’Rielly following similar in-party opposition from Senator James Inhofe (R-OK).  The same could happen with Beck.

Alternatively, President Trump could seek to pair Beck’s nominations with a Democratic nominee for the seat currently held by Commissioner Elliot Kaye (D), whose term expires in October. However, with so little time before the election, it seems unlikely that either the White House or the Senate has the time for the necessary vetting and negotiation.

Game-planning elections is tricky business, but, assuming Beck is not confirmed, the CPSC’s leadership will hinge on a pair of electoral outcomes – the presidential election and control of the Senate. Oddly, a GOP loss in either may be Beck’s best path to confirmation, as it may encourage Republicans to use a December lame-duck Senate session to secure as many victories as possible before the end of the 116th Congress. For the strategies President Trump or President Biden could employ to win a confirmation in the new Congress, check out Part Two of this series.

More Vacancies Are Coming

By statute, CPSC commissioners serve seven-year terms, though each can hold over for up to a year if no replacement is confirmed. Each seat has a fixed, staggered cycle tracing back to 1975 or one of the four following years, so terms are frequently shorter than seven years.

Commissioner Peter Feldman, for example, joined the CPSC in 2018, with just one year left in the 2012-2019 term of the seat vacated by former Commissioner Joseph Mohorovic. Because some terms may be brief, it can be difficult for presidents to encourage qualified candidates to sign on for what may be a months-long stay at the agency. For Feldman, the White House provided some added stability by simultaneously nominating him to the subsequent term for the same seat, meaning he holds his office through 2026.

The expiration dates for the current terms of the five CPSC seats create a rapidly closing window for President Trump and a political challenge for a prospective President Biden:

CPSC Seat Expiration Hold-over
Elliot Kaye (D) 2020 2021
Bob Adler (D, Acting Chair) 2021 2022
Dana Baiocco (R) 2024 2025
Vacant (Beck nominated) 2025 2026
Peter Feldman (R) 2026 2027

The staggered terms mean constant turnover. Because the statute prohibits more than three commissioners from any one political party, a president generally has limited opportunity to cement CPSC control beyond the president’s own term. When President Obama left, for example, there were just nine months remaining on the term of former Commissioner Marietta Robinson (D), giving President Trump the chance to create a Republican CPSC majority in his first year in office.

It’s rare that a president can create an opposition CPSC for the next administration. But President Trump and the current Republican Senate have that rare opportunity and could lock in a Republican CPSC majority through 2024. That possibility exists as long as Beck’s nominations are pending, but, as noted above, the odds of her confirmation getting longer by the day, and confirmation in a lame-duck session is likely the best bet.

Regardless of what happens with Beck’s nominations, with Kaye’s term expiring in two months – and Adler’s only a year later – there will be additional nominations on the table soon. President Biden would presumably want to nominate Democrats both for the open seat and for the upcoming vacancies, but he would not have a Republican spot to trade for any of them unless Commissioner Feldman or Commissioner Dana Baiocco were to resign. That’s why Biden’s strategy would likely need to include a vacancy at another agency.

Conversely, if President Trump were to be re-elected, he would be certain to have one Democratic term already expired and another opening looming that he could trade for confirmation of his nominee for the current vacancy. Stay tuned for Part Two in which we walk through some different scenarios based on who controls the White House and Senate after the November elections.

© 2020 Schiff Hardin LLPNational Law Review, Volume X, Number 252
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About this Author

Mike Gentine, Schiff Hardin, Product liability lawyer
Counsel

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...

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