January 24, 2021

Volume XI, Number 24


January 22, 2021

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Outgoing Adler: Acting CPSC Chair Will Not Seek Re-Nomination, Adding to Agency’s Leadership Uncertainty

As we recently wrote, the presidential and congressional elections will affect both the leadership and policy of the U.S. Consumer Product Safety Commission (CPSC), but we won’t have a clear picture of what the future will look like until the results come in. There’s one thing, though, that we already knew: Barring a surprising shift in U.S. Senate priorities before the end of the year, the next President will have at least three opportunities to appoint a CPSC commissioner.

We now know something else: At least two of those seats will have to be filled by new people, and perhaps all three. This impending turnover creates further uncertainty for an agency whose recent history has been defined by instability. More troublingly, as noted below, if the next White House and Senate cannot find some common CPSC ground, the agency could lose its authority to act.

Adler Going

One of the new seats will be that of Acting CPSC Chairman Robert Adler (D), who has announced that he will not seek re-nomination when his current term ends in October 2021. Adler has been on the Commission since 2009 and served as an advisor to one of the original commissioners in 1973, and his departure will deprive the agency of a significant store of institutional knowledge. Per CPSC’s statute, Adler could hold over for up to a year if a replacement is not appointed, but, regardless, he would leave office during the coming presidential term. That will leave a vacant seat with no identified successor.

Beck Not Coming

The second open seat that is very likely to call for someone new is the one for which Dr. Nancy Beck (R) has been nominated. Beck’s nomination has been stalled since June, and Republican Senators Shelley Moore Capito (WV) and Susan Collins (ME) and Democratic Senator Joe Manchin (WV) have announced they will not vote to confirm her. Even if Beck’s supporters can overcome that opposition, it’s not clear Beck will come to a vote before the year ends and her nomination is returned to the White House. Majority Leader Mitch McConnell (R-KY) recently said that he intends to use the lame-duck session between November 3 and December 31 to “clean the plate” of judicial nominees, which may leave no Senate bandwidth for executive branch nominations, particularly those with significant, bipartisan opposition.

In all likelihood, then, Dr. Beck will not be confirmed. If President Trump wins reelection, he could re-nominate her. However, Manchin is not up this cycle, Capito is likely to be reelected, and neither Collins nor her potential Democratic replacement is likely to favor Beck, so the opposition may remain insurmountable, leaving President Trump to find another nominee. If Vice President Biden wins, he would certainly nominate someone else, namely a Democrat. In either event, the Commission would need a new nominee.

Kaye Not Returning?

The third seat that will need filling in the next presidential term is that of Commissioner and former Chairman Elliot Kaye (D). Kaye’s term has expired, but he is in his holdover year and will likely stay in office until October if there’s no replacement. Moreover, even if Kaye’s re-nomination were otherwise possible, his health issues may preclude another term. So, as of October, someone will need to be nominated for and confirmed to the next term in Kaye’s slot, and there’s a significant chance that nominee would be someone other than Kaye.

It seems likely, then, that, by the middle of the next presidential term, the five-member Commission will have three new faces. That level of turnover would give the agency a chance to chart a new course, but it would also create a protracted transition period in which Commissioners leave, replacements arrive, and the body’s members have to develop new working relationships.

Alternatively, the CPSC could lose its quorum and its statutory authority if the Senate gridlock that has stalled Beck’s nomination and stymied those of former CPSC Acting Chair Ann Marie Buerkle continues. So, while the next few days may answer the questions of who will occupy the White House and which party will control the Senate, it remains to be seen whether this agency that has been under acting leadership since February 2017 and beset by partisan gridlock for much of that time will begin to find some stability in 2021.

© 2020 Schiff Hardin LLPNational Law Review, Volume X, Number 307



About this Author

Mike Gentine Schiff Hardin Product Liability Lawyer Washington DC

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...