Full Cabinet, Bare Shelves
Way back in March 2019, 26 full months into his presidency, NBC News reported that President Donald Trump still had not nominated individuals to fill 150 different top-level positions in his administration. Analysts told NBC News the slow pace was keeping the president from implementing his agenda. Brookings Institution scholar Kathryn Dunn Tenpas said, for example, “They’re tying their own hands and limiting their ability to perform."
As he nears the end of his first year in office — and with news breaking yesterday that an academic he had nominated to fill a key bank regulatory post has withdrawn from the process — President Joe Biden finds himself in a similar situation. His cabinet (the secretaries of Treasury, Defense, Education, and the like) is full, but many key supporting roles are not.
The Biden Administration’s Bare Shelves
Before we get to the bad (for the White House) nomination news, it is worth noting that President Biden is ahead of his predecessors on one metric: judicial nominees.
According to Ballotpedia, since taking office, President Biden has nominated 62 individuals to the federal courts. As of December 1, 28 of those individuals had been confirmed by the Senate. President Biden beats every former president since President Jimmy Carter, who named an annual average of 65 new judges during each of his four years in office. President Trump named an average of 61 new judges each year. President Ronald Reagan averaged 50 new nominees per year, and Presidents Bush, Obama, Bill Clinton, and George H.W. Bush each averaged less than that.
But when it comes to the executive branch, the Biden administration is far behind.
According to the Partnership for Public Service, presidents fill about 4,000 positions at executive branch and independent agencies. The positions are filled by so-called “political appointees.” These individuals either serve until the president is out of office, until the individual appointee resigns, or until their congressionally-imposed term ends. (Hundreds of thousands of “career” staff fill the rest of the federal government. Their tenure is not impacted by who is sitting in the Oval Office.)
Less than one-third of political appointments, around 1,200, require confirmation by the U.S. Senate. With The Washington Post, the Partnership tracks progress on 800 positions, including Cabinet secretaries, ambassadors, and other important leadership positions.
President Biden so far has picked just 434 of these 800 nominees. More than half of these 434 people are waiting for the Senate to consider and vote on their nominations; 194 have been confirmed. Another 205 positions are filled by individuals held over from the previous administration or who are serving in positions where their terms have not yet expired.
That means the president has not made picks yet for 164 top positions in his administration.
President Biden is far behind where President George W. Bush and President Barack Obama were at the same points in their administration, and is not doing much better than President Trump.
Many of the open positions have to do with economic and financial services and financial technology policy. There is, for example, no assistant Treasury secretary for financial stability. There also is no assistant secretary for investment security. The Internal Revenue Service does not have a chief counsel or an inspector general.
President Biden has not named anyone to oversee the Office of Information and Regulatory Affairs at the Office of Management and Budget. This person oversees the entire federal regulatory process, bringing together the right stakeholders and making sure the development of federal rules runs in an orderly and efficient manner.
The Commodity Futures Trading Commission (CFTC) is down one commissioner (so is the Social Security Administration) and the Federal Deposit Insurance Commission (FDIC) lacks a vice chair. The CFTC regulates the U.S. derivatives markets while the FDIC works to maintain stability and confidence in the U.S. banking system.
As we noted last week, President Biden also has not yet named someone to be Federal Reserve vice chair of supervision. That position oversees implementation of the Fed’s regulatory policy.
Why Are Nominations Moving Slowly?
As noted above, 1,200 political appointments require Senate confirmation. Obviously, if the opposite party is in control of the Senate that can slow the pace of nominations. But Democrats control the Senate right now — and thanks to changes in Senate rules, the opposing party can no longer filibuster executive branch nominees.
What, then, is holding back President Biden’s progress?
In many cases, it’s his own party. As The Wall Street Journal reported last week, “The White House’s desire to appease both liberal and moderate Democrats has left several top Wall Street regulatory posts unfilled … With a 50-50 split in the Senate, Mr. Biden needs either universal support of Democrats to confirm his nominees … support from some Republicans to overcome holdouts from his own party.”
Indeed, opposition from the moderate wing of the Democratic party — in addition to deeply personal criticisms from Republicans — just sunk the nomination of Saule Omarova, President Biden’s pick to be comptroller of the currency. According to The Hill, several moderate Democratic “senators expressed concerns about her proposals in legal papers to shift much of the consumer banking system into the federal government. No Democratic senator publicly opposed her nomination, but at least five reportedly told the White House they were unwilling to support her confirmation.”
White House worries about balancing factions within the Democratic party also have slowed the nomination of a Federal Housing Finance Agency director to oversee Fannie Mae and Freddie Mac. The Journal said the administration has “held off on its plans amid pushback from congressional Democrats, including prominent members of the Congressional Black Caucus” who support a certain nominee.
And, as noted in last week’s update, opposition from the president’s left flank would threaten Federal Reserve Chair Jerome Powell’s successful renomination — if Powell did not already have adequate support from Republicans. (The Senate Banking Committee is expected to hold a hearing to consider Powell’s nomination for a second term next month.)
The president is trying to thread the eye of a very small needle.
Are “Acting” Appointees Enough?
The White House has defended the president by saying there are capable individuals filling some political roles in an “acting” capacity. But federal law severely constrains how long individuals may serve in these roles — a fact that constrains their ability to make policy.
As the Congressional Research Service has explained, the Federal Vacancies Reform Act of 1998 limits how long a government employee may temporarily perform the functions and duties of a vacant Senate-confirmed position. The law, whose origins date back to 1868, was meant as “a compromise between the constitutional mandate that the president nominate and the Senate vet candidates for certain high-level executive jobs and the realities of needing to keep offices functioning between changes in leadership,” the Project on Government Oversight (POGO) explained.
Generally, as POGO noted, acting officials can serve for 210 days, a clock that starts on the day a vacancy occurs. When 210 days is up, the law requires acting officials to “step down and the position remain vacant, meaning no one can perform the functions of that job, until someone is confirmed.”
This game can be dangerous.
Back in 2019, Partnership for Public Service President and CEO Max Stier explained to NBC News that “acting” officials have much less power than confirmed appointees. “Even if somebody is a very talented individual, if you’re in an acting position, you're not in as strong a position to act. You don't feel you’re fully empowered, and unlikely to think about long-term issues,” Stier said. “I call it the substitute teacher effect. They can be wonderful people and teachers, but they don't get the same respect from the students they’re teaching."
In last week’s Wall Street Journal article, Dennis Kelleher, chief executive at Better Markets, which advocates for stricter Wall Street oversight, agreed. Kelleher said, “The agencies are by and large frozen in place and it’s hard to get momentum on critical financial protection rules until there’s confirmed leadership.”
Bare Shelves and Biden’s Agenda
In July 2020, then-presidential candidate Biden outlined a robust plan to address income and racial and income inequality. Many of his promised efforts involved the very agencies that are now short staffed. As The Wall Street Journal reported at the time, for example, Biden promised to introduce “new social goals” for the Federal Reserve and “use his appointments to advance his goals, saying he would prioritize ‘diverse nominees for the Board of Governors and the regional Federal Reserve Banks.’”
At least three of those board positions are now empty.
Just a few days after President Biden’s November 2020 election, Brookings Institution Senior Fellow Aaron Klein advised, “President-elect Biden should prioritize appointing strong financial regulators with sound judgment and strong will to act. There has been a troubling trend over prior administrations to wait too long to nominate financial regulators. … President-elect Biden can reverse this by quickly nominating a new comptroller of the currency, filling existing vacancies in the Federal Reserve Board, FDIC Board, SEC, and devising an aggressive game plan to fill future vacancies. … Find them and move them through the process. Then let them and their agencies do the hard work, while the White House turns its attention to other matters.”
Until President Biden heeds that advice, his administration will be challenged to implement many of the policies he articulated during his campaign for the White House.