The CPSA Assumes but Does Not Require a Multiparty CPSC

The likely upcoming Republican monopoly on CPSC power does not violate the letter of the CPSA despite bipartisanship being both a half-century tradition and the goal of those who wrote the 1972 law. That goal is embodied in CPSA Section 4(c), which requires that "not more than three of the Commissioners shall be affiliated with the same political party."

However, the next section, 4(d), allows that:

"[I]f there are only three members serving on the Commission because of vacancies in the Commission, two members of the Commission shall constitute a quorum…"

Combined, the provisions mean that three Republicans can compose the whole of the commission, and two of the three are enough to make decisions. That two-person quorum is not time-limited and is distinct from the temporary two-person quorum allowed if the commission falls to two members. Indeed, it is the reason CPSC could operate with a maximum of three members for a quarter century from the mid-1980s to 2009, after changes in the 2008 CPSIA.

The likely Republican monopoly comes in the context of legal challenges to the concept of independent agencies. The 2025 firings of the three Democratic commissioners (PSL¸ 5/12/25) is the topic of a still-open case before the 4th Circuit appeals court, and that case awaits the outcome of a related Supreme Court case addressing similar firings at the Federal Trade Commission (PSL, 12/15/25).

The gist of the pro-firing side is that forbidding a president from removing anyone in the executive branch violates Article II of the Constitution. That position raises the question: If a president's powers are encroached on by a ban on at-will firings specifically and the idea of independent agencies generally, does a limitation to three commissioners of a president's party also infringe those powers?

In any event, an operating commission does not require testing that question given the three-member minimum. Moreover, even if a court were to uphold the party-affiliation provision of the CPSA, the law does not specify which parties – third party members or unaffiliated people theoretically could get nominations. The historical Republican-Democratic binary and the related balancing of regulatory views are functions of Senate politics not CPSA mandate.

The remaining two seats – those of fired Democratic commissioners Alexander Hoehn-Saric and Richard Trumka – are still challenged in court (see related story).