The Trump administration may have come up with "a way to get around" the tradition of bipartisan representation on federal commissions, the Huffington Post reported Wednesday, raising alarm that those panels could end up "being stacked with nominees sympathetic to the president."
The workaround could impact critical commissions including those governing election law (the Federal Election Commission, or FEC); financial regulation (the Securities and Exchange Commission, or SEC); and the internet (the Federal Communications Commission, or FCC).
According to HuffPo reporters Sam Stein and Ryan Grim:
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.
The New York Times similarly suggested last month that Trump may pursue this strategy, writing of the process to replace FEC commissioner Ann Ravel: "By tradition, Senate Democrats would be allowed to select the replacement, but, by law, the choice belongs to the president, and Mr. Trump has shown little interest in Washington customs."
The Times spoke to Richard L. Hasen, an election law scholar at the University of California, Irvine, who agreed that "Trump can pick a nominee himself so long as he does not choose a registered Republican."
According to the Times:
Mr. Hasen said he would not be surprised if Mr. Trump made the pick himself, especially because his White House counsel, Donald F. McGahn II, was an election commissioner himself and has pushed fiercely for deregulating campaign finance.
"It would be transformative," Mr. Hasen said, if the president nominated someone more aligned with the panel's Republican members to push for even further deregulation.
Stein and Grim report that Trump on Tuesday pulled at least two pending nominees from various commissions, further indicating that the White House is looking to shake up the system.
Journalist and author David Dayen called the news a "huge deal," saying: "I thought a big push was needed to get [Senate Minority Leader Chuck] Schumer [N.Y.] to put forward decent commission candidates. But Trump could cut him out entirely."
"[I]f the goal, as [White House chief strategist Steve] Bannon says, is 'deconstructing the administrative state' this would be a quick way to do it," Stein added on Twitter. Bannon said as much during an address to the Conservative Political Action Conference (CPAC) last month, as Common Dreams reported.