Baiocco Will Join CPSC Soon; Confirmation Vote was Near Party-Line

A start date for new CPSC member Dana Baiocco was unclear as of the PSL deadline although that presumably is imminent. Seating typically occurs quickly, and for her, it might have occurred as of the date of this edition.

The Senate May 22 voted 50-45 on mostly partisan lines to confirm her; Sen. Joe Manchin (D-W.V.) voted yes with 49 Republicans. Not participating in the rollcall vote were three Democrats and two Republicans: Sens. Mike Bennet (D-Colo.), Ben Cardin (D-Md.), Tammy Duckworth (D-Ill.), Cory Gardner (R-Colo.), John McCain (R-Ariz.).

Republicans set up the vote with a cloture motion (PSL, 5/21/18), a technical necessity to end time for debate; there was not actual ongoing debate. However, once cloture was invoked, some Senators spoke (or otherwise expressed opinions such as via Twitter) for and against her. Remarks fell on predictable lines, echoing topics at her confirmation hearing last year (PSL, 11/6/18) such as generators, ATVs, and whether her recusal promises were sufficiently broad.

The last involved her work at Jones Day, where she represented companies that make products under CPSC jurisdiction such as Mattel and Yamaha – and possibly RJ Reynolds although the connection less direct; cigarettes factor into issues such as furniture flammability. There also were concerns raised about her husband's clients.

CPSC will have a 2-2 tie once she joins. She is a Republican as is Acting Chairman Ann Marie Buerkle. Commissioners Robert Adler and Elliot Kaye are Democrats.

Baiocco replaces Marietta Robinson, whose term technically ended last October; Robinson chose to stay until her replacement was seated under the CPSC rules that allow commissioners to stay for an extra year to avoid vacancies.

Because commissioner slots run regardless of being filled, Baiocco's seven-year term will end in 2024. The ends of the other three members' terms are Acting-Chairman Ann Marie Buerkle (2018), Commissioners Elliot Kaye (2020), and Commissioner Robert Adler (2021). Terms end October 27 of the years, dating to the October 27, 1972 enactment of the CPSA. Keep in mind that each can stay an extra year.

Meanwhile, the confirmation of Buerkle to be chairman still is before the Senate. However, the practical effect of that decision would be minimal given that she already is serving in an acting capacity. However, she has a second nomination to get another seven years as commissioner until 2025. That would affect CPSC more substantially.

Elsewhere, pending at the White House is a fifth nomination. Former Commissioner Joseph Mohorovic left last year. His slot runs until 2019. Given the precedent of nominating Buerkle for a second term 15 months before her current one ends (PSL, 7/31/17), there is a possibility for a similar tack with Mohorovic's replacement – simultaneously nominating someone to complete his term and also to serve another until 2026.

If so, that might ensure a Republican majority until October 2025 if no one leaves and Baiocco remains past the technical end of her term in 2024. Commissioners can stay at their posts regardless who is president, so the 2020 and 2024 elections would not change that. However, the chairmanship can change, so the elections would factor there.

On the other hand, the CPSA specifies that "not more than three" commissioners can be affiliated with one party. That means Alder and Kaye's replacements could not be Republicans and almost certainly would be Democrats. However, there is no assurance that such nominations would occur as the commission could operate without their replacements. The panel needs just three members for a quorum, so a 3-0 Republican monopoly is a potential (regardless of probability) when Adler leaves, likely in the year following October 2021. This hypothetical accounts for neither elections nor the special provisions for a temporary two-person quorum.

Nonetheless, the agency (career staff) can do most duties no matter the makeup of the commission. The commission (presidential appointments) matters for voting and priorities.

Robinson wrote a final post (bit.ly/2kqd8Pr) to her blog about her time at CPSC. Although she asserted, "I have great concern about the present path of the CPSC," the bulk of the piece covered what she and her staff did related to her priorities: data improvement, furniture stability, recall effectiveness, gun locks/safes, eCommerce/IoT, CPSC's use of social media, corded window coverings, and fireworks.

CPSC's press release (bit.ly/2IJXo8E) on Baiocco's confirmation included a statement from her on her commitment to the job and one of congratulations from Buerkle.