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Monday January 14, 2019

Buerkle's 18-Month-Old Nominations Get Bounced Back Again

CORRECTON: Buerkle's nominations have not been pending for 23 months as the headline originally stated. She has been acting chairman for 23 months since February 2017. However, her initial nominations to be chairman and for another seven year term as commissioner came in July 2017, 18 months ago.


The White House must resubmit two nominations for CPSC Acting Chairman Ann Marie Buerkle. The move was expected and normal – the Senate January 3 bounced them back as they were submitted in the previous Congress. Resubmission is necessary for them to be valid for this Senate. The White House already has begun sending blocks of nominations, but Buerkle was not among those listed as of the PSL deadline.


One nomination involves her officially becoming chairman, a job she has done since early 2017 after then-Chairman Elliot Kaye (who remains a commissioner) was asked to step aside and the White House tapped her. Approval would have little effect on CPSC operations as she already can use the powers of the office whatever her title.


More importantly, the other involves her getting another seven-year term as commissioner ending in 2025. It would mean that no matter which party controls the White House after the 2020 election, CPSC could be Republican-controlled for nearly the entirety of the next presidential term unless one of the three current Republicans leaves early.


Commissioner Dana Baiocco's term is the first to end in October 2024, just a few weeks before that year's election. Buerkle's term would end in 2025. Commissioner Peter Feldman's current term ends in October. However, the last Senate also approved him to stay for another seven years, to 2026, under simultaneously-submitted nominations.


His early, second nomination drew criticism of Consumer Reports, which wrote (PSL, 10/1/18) that because his next term would not begin until this Congress, it was inappropriate for the now-adjourned Senate to consider his extension. The complaint might now be moot as the new Senate also has a Republican majority so likely would approve him. Although the group raised constitutional and legal questions about the move, it has not signaled plans for legal challenge.


Commissioners cannot be removed once seated except for extreme causes. The CPSA states, "Any member of the Commission may be removed by the President for neglect of duty or malfeasance in office but for no other cause."


If the president after 2020 is a Democrat, that person still could tap a Democrat to be Senate-approved chairman. That could set up an interesting scenario of a minority chairman.


More speculatively, it even is possible that after October 2022, Republicans could have a monopoly at CPSC. Kaye's term officially ends in October 2020, but he can stay to October 2021 under CPSC rules aimed at minimizing commission vacancies. Commissioner Robert Adler's term ends in October 2021, so he can stay aboard until October 2022.


If neither is replaced, only the three Republicans would remain, and they would have a quorum. The CPSA states that three is a quorum and that "Not more than three of the Commissioners shall be affiliated with the same political party."


If one of them left, however, the panel would lack a temporary quorum of two as the CPSA mandates that such a pair be from different parties. That provision exists so the commission can vote for six months without a true quorum.