Trump Administration Sets Off Alarm Bells By Pulling Nominees To Regulatory Commissions

The deconstruction of the administrative state is underway. But expect Senate Republicans to push back.
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WASHINGTON ― The Trump administration has begun pulling pending nominees from various federal commissions in a manner that has left Hill Democrats concerned that the practice of bipartisan inclusion on regulatory panels will be upended.

The administration’s efforts, these sources told The Huffington Post, could result in commissions tasked with overseeing trade enforcement, election law, and financial and energy regulation being stacked with nominees sympathetic to the president.

Pending positions on the Federal Communications Commission, Federal Trade Commission, Commodity Futures Trading Commission, U.S. Securities and Exchange Commission, Federal Election Commission and Federal Energy Regulatory Commission are among those at stake. And President Donald Trump, according to these sources, is looking to rescind both Republican-backed nominees as well as Democratic ones.

By statute, these five- and six-member commissions can have no more than three members from the majority party. For six-member commissions, that assures bipartisan cooperation ― or, as has happened at the FEC, utter gridlock. The narrow majority on five-member commissions requires a commission to govern closer to the center. A chair who loses just one vote from his or her own party loses everything.

Historically, the White House has largely deferred to Senate committees in naming a commission’s minority party members. The nominees are then sent to the Senate as a pair as a means of expediting their confirmation.

But Democratic sources on the Hill worry that the Trump administration has conceived of a way to get around these norms. Although it can’t stack commissions with more Republicans, it can replace Democrats with registered Independents who are ideologically conservative. One counsel to a Senate Democrat said the administration “may actually be able to do this legally.” Others cautioned, that it’s not yet clear if Trump will go down this path.

Already, however, at least one Obama-era holdover commission nominee subjected to oversight from the Senate Banking Committee has been pulled, according to a separate Senate source familiar with the maneuvers. That source declined to name names. But the nominations of Brian D. Quintenz and Christopher James Brummer to the CFTC were formally withdrawn by the president on Tuesday, and Claudia Slacik’s nomination to serve as a member of the Board of Directors of the Export-Import Bank was withdrawn as well.

White House chief strategist Steve Bannon has said that “deconstructing the administrative state” is one of his top three goals, and regulatory commissions are the backbone of the administrative state. Even without rescinding nominees, Trump has a lot of vacancies to fill. The Federal Energy Regulatory Commission, for example, currently does not have the required number of commissioners to form a quorum.

“Steve Bannon has said that “deconstructing the administrative state” is one of his top three goals.”

As the result of filibuster reform when they were in power, Democrats no longer have the ability to block any effort by Trump to maneuver around the norms of the nominating process. Trump merely would need 50 votes for confirmation to these posts.

It wouldn’t be without cost, however. Depriving the Senate of the ability to weigh in on the pair of nominees in a bipartisan way would be a major institutional blow ― and the effort could falter if opposed by a handful of Republicans with an affinity for the institution.

One such Republican is Majority Leader Mitch McConnell (R-Ky.), a strong institutionalist who would be likely to consider the move an attack on the Senate.

McConnell’s Democratic counterpart has said he plans to resist the move.

“We intend to assert our prerogative on nominees as has always been done,” said an aide to Senate Minority Leader Chuck Schumer (D-N.Y.) who spoke on condition of anonymity to discuss the sensitive matter. “The administration has always deferred to congressional leaders and we fully expect that to continue.”

The White House did not return a request for comment.

Zach Carter contributed reporting.

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