A Little Less Fuzzy: What to Expect from the CPSC Before the Biden Era

Now that we know that Joe Biden will take over the White House in January, the near future for the U.S. Consumer Product Safety Commission (CPSC) is a little clearer. While there are still a couple key unknowns, namely what will happen in the rest of 2020 and how the Senate runoff elections in Georgia will turn out, we can now get closer to answering what the CPSC of 2021 and beyond will look like. Part one of this two-part series looks at what we expect to happen during the transition, including the “lame duck” congressional period. Part two explores what roles we foresee for each of the players: the Biden administration, the agency, and Congress.

Lame Duck?

As we’ve noted, Dr. Nancy Beck has been nominated to be both a CPSC commissioner and the agency’s chair. However, her nomination has been stalled since June and hasn’t cleared committee, largely because of opposition from three Senators, two of them Republicans. Even if Senate leadership would be willing to devote floor time during the coming lame duck session to a CPSC nominee – which it hasn’t done through the first 22 months of the 116th Congress – that opposition to Dr. Beck may be too much to overcome.

One potential twist: While a President can remove a CPSC commissioner only for cause, the President can remove a chairperson at will. This happened in February 2017, when newly inaugurated President Trump stripped Commissioner Elliot Kaye of the chairpersonship. This means that, even if Dr. Beck were confirmed as chair, President Biden would probably remove her from that role quickly. For this reason, the White House or Dr. Beck herself could withdraw her nomination as chair and proceed only with the commissioner nomination, which might give the Senators who have opposed her some comfort. It’s unclear how receptive anyone would be to this compromise, but it could be on the table.

It seems unlikely Dr. Beck’s nominations will get a floor vote, let alone win a majority. For now, we’re assuming that she will not be confirmed and that the current vacancy at the CPSC will carry over into Biden’s presidency.[1]

Georgia on the CPSC’s Mind?

Two Senate seats in Georgia are subject to runoff elections on January 5. Control of the Senate will likely turn on those elections. For Democrats to control the Senate (through a 50-50 split with Vice President Harris casting tie-breaking votes), the party would need to win both, which is possible given that Biden carried the state but unlikely. It seems more likely the Senate will stay in Republican control.

Once the Biden presidency begins on January 20, 2021, what will that mean for a CPSC with an open seat that is overseen by a divided Congress? We’ll discuss that in part two of this series.

[1] On a related note, as we wrote last week, Commissioner Kaye’s term has already expired, but he can remain in office for up to a year if there is no confirmed replacement. It is highly unlikely that the White House will nominate and the Senate confirm anyone in the last few weeks of the year.

© 2024 ArentFox Schiff LLP
National Law Review, Volumess X, Number 317