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Newsletter 100: Excessive caution is imprudent and irresponsible.
Welcome to our 100th newsletter! Thanks for joining us, whether it’s the first or the hundredth edition to hit your inbox.
As it so happens, this landmark edition comes at a critical juncture for this administration. Last Tuesday’s election results have sparked overwhelming pessimism about Democrats’ ability to maintain congressional majorities next November. Meanwhile, the prospects for additional legislative wins beyond the infrastructure bill (and maybe Build Back Better) are dwindling. With all of that weighing on the White House, it seems likely that we’re on the verge of a pivot, the direction of which is very much in play. Some senior leaders are advocating a retreat from bold action and a reversion to the party’s cruelest instincts. We are confident that this approach can only spell electoral disaster. So what’s the alternative? In short, Biden must go bigger and bolder with the authority at his disposal. His administration is still leagues away from having deployed every arrow in the executive branch’s quiver to advance its agenda. From here to November 2022, it must seize every opportunity to get closer to that distant point. What does that look like in practice?
Personnel:
To start, it should mean raising the bar for every single outstanding nomination. Biden must name officials who are ready to use their powers to the fullest extent possible to advance the public interest, not revolving door figures who are most concerned with making a buck. If you want an example of what we mean by “the fullest extent possible,” just look at Rohit Chopra’s departing actions at the Federal Trade Commission (FTC). Thanks to delays in FTC nominee Alvaro Bedoya’s confirmation, Chopra’s departure last month to lead the CFPB left the FTC gridlocked 2 Democrats to 2 Republicans. But Chopra did not simply accept that FTC action would grind to a halt until Bedoya was confirmed. Instead, he took advantage of an agency rule allowing a commissioner to submit votes in advance, voting on 20 matters on his last day in office. If joined by two other commissioners, the rules can take effect. One already has.
Some of the rumored names for notable outstanding roles fall far short of this standard for nominees. My colleagues Fatou Ndiaye and Toni Aguilar Rosenthal spotlighted one such potential nominee for the American Prospect late last month: Robert Califf, who is said to be the frontrunner to lead the Food and Drug Administration. Califf has worked as a consultant to BigPharma companies and, most recently, to Google’s (er, “Alphabet”-- we have an aversion to branding consultants inspired name changes) health subsidiary. In 2016, when Califf was nominated to the FDA, Senators Manchin and Sanders, not to mention many advocacy groups, criticized him heavily (and that was before he worked for Google!). As Fatou and Toni wrote, “by nominating Califf as FDA commissioner, the Biden administration would be shooting itself in the foot.”
The same could be said if Biden chooses to renominate Jerome Powell as Chair of the Federal Reserve Board of Governors. As we have tried to emphasize ad nauseam, the Federal Reserve will be key to the success of many aspects of this administration’s agenda. It is too important an institution to ignore or, worse, trade away as some sort of bipartisan consolation prize. And, the only way to get the Fed working to achieve this administration’s economic, full employment, financial regulatory, and climate goals, is to have a chair who fully supports that agenda. Without that, the power of any Democratic majority or strong Vice Chair of Supervision, will be severely, even fatally, limited. As Biden nears his decision, he would do well to remember that.
Governance:
This administration also needs to demand more of many of those leaders it has already elevated. Almost 300 days after Biden’s inauguration, agencies should at this point be making real strides towards advancing this administration’s agenda. Instead, we continue to see senior leaders drag their feet -- like at the Treasury Department -- and actively work against this administration’s stated goals -- like at the Justice Department. Yesterday, for example, DOJ lawyers argued before the Supreme Court that Puerto Ricans are not entitled to Social Security benefits, a position that President Biden criticized forcefully while on the campaign trail last year. The reason for their stance? The DOJ rarely argues that U.S. policies are unconstitutional. If you find that to be a lackluster and inconsistently applied excuse (the last two administrations chose to not defend DOMA, the anti-marriage equality law, and the Affordable Care Act, respectively) to maintain an indefensible policy, you’re not alone. And it’s not just this issue where this is dangerous. This thoughtless deference to “the usual ways of doing things” threatens this administration’s agenda more broadly and is currently standing in the way of a real effort to hold the prior administration accountable. That failure led Free Speech for the People to call for Garland’s resignation last week. We agree!
Even where officials are diligently working to advance Biden’s agenda, the administration still can be doing more to accelerate those efforts. As Fatou Ndiaye and I detail in a recent report, many federal agencies currently lack the capacity they need to carry out climate policies, old and new, as effectively as possible. Filling these gaps, therefore, will be an essential component of a successful climate agenda. And the Biden administration, through the Office of Personnel Management, can and should be doing more to accelerate that process. Read the report for more detail.
Congressional Oversight:
It should go without saying that congressional Democrats also have an important role to play to keep a hold of their majorities. Less widely appreciated, however, is the fact that that role consists of more than just passing landmark legislation. Through its oversight, appropriations, and advice and consent roles, Congress can do a great deal to ensure that the federal government is delivering for the American people.
Indeed, Congress has a responsibility to ensure that legislation, both recently-passed and decades-old, is effectively and fairly administered. That remains true even when there’s a friendly administration in the White House. Careful oversight in the coming year (and beyond), can help keep the pressure on every component of this administration to be using the power at its disposal. Scrutiny can also help surface obstacles to this goal, including resource-related constraints that lawmakers can address in must-pass legislation.
Senate Democrats, meanwhile, can help this administration reach its fullest potential sooner by reforming the confirmation process. As it stands, the combination of procedural rules that are devoid of substantive value and partisan gridlock is drawing out confirmation times and hampering this administration. As we have proposed, simple changes -- to eliminate needless layover periods and group nominees together for debate -- could make a significant dent in these delays and get permanent leaders into critical positions faster.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
A Missing Link in the Fight Against the Climate Crisis
Will Biden’s FDA Be Led by a Pharma Guy?
Quarles' Resignation Alone Won't Change The Fed's Regulatory Status Quo
The Trump Administration Made a Mockery of the Law. Why Hasn't Biden Tossed its Cases?
Watchdogs Request Fed Communications And Calendars For Continuing Ethics Inquiry
When Republican Votes Advance Biden's Nominations
Penn Law Should Require Faculty to Disclose Outside Funding Sources, Letter Argues
New Report Details How Reduced Staff Capacity Will Hamper Climate Action
Climate Capacity Crisis: Attrition at Climate Agencies and Immediate Steps to Address It
Jeff Hauser On Taking on Corporate Enemies — Rick Smith Show
The Revolving Door Is Good for Bitcoin
Industry-aligned Democrats sink bill to lower drug costs. “What did they get for that” from Pharma?
Regulators can no longer rubber-stamp expansion of the oil and gas industry
Senate Commerce plans quick turnaround for FCC nominees
Opinion | A Message to Democrats Ahead of 2022: Make Corporations Your Enemies
Eric Schmidt Ponders the End of the C.E.O. as We Know It
Randal Quarles, Fed Governor, to Resign in December
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