Now Comes the Hard Part
Newsletter 59: Sadly, attempted coup just one of a long list of challenges
The transition is underway. Rumors about potential Cabinet members are everywhere. A COVID-19 task force has been formed. The teams that will plan the administration’s critical launch have been constituted. The Chief of Staff has been announced.
And yet, critical pieces of the process can not fall into place because a Trump administration appointee, General Services Administrator Emily Murphy, is refusing to make the determination that Biden has won the election. That means that newly-formed agency review teams can’t contact civil servants or access agency records. The Biden transition isn’t letting this stop them from preparing, but there’s no doubt that it is a consequential obstacle. That is especially concerning as a new wave in the pandemic rises, making a smooth transition all the more important.
2020 (and potentially 2021)
As usual, this week’s crop of transition-related announcements contained both encouraging and discouraging news. In the first category, Biden announced that he had chosen Ron Klain as his Chief of Staff. While not perfect, Klain brings experience handling a public health crisis. He rightly remains marked by anger at Jeb and the Supreme Court swiping Florida for George Bush in 2000. He has a willingness to listen to those on the left. Moreover, he is not a pharma lobbyist like Steve Ricchetti, a welfare reform advocate like Bruce Reed, or a recent Facebook board member and surprise billing-enthusiast, like Jeffrey Zients. Given that those were the alternatives, progressives took a victory lap following the announcement.
Many (including us in Bloomberg and Politico) also celebrated after the Biden team released rosters for its agency review teams. Agency Review Teams assess the current state of affairs at the agencies and departments to which they’re assigned, making recommendations on policy and personnel. Members often also go on to roles in those agencies after inauguration. Their membership, therefore, is quite consequential. Happily, most of Biden’s teams were comprised of committed advocates for the public interest and crusaders against corporate power, with relatively few industry faces.
But there were glaring exceptions. One-third of the Defense Department team’s members, for instance, most recently worked for think tanks that received generous funding from defense contractors. And as we told the New York Times, alarmingly, the team responsible for reviewing the Office of Management and Budget (OMB) is packed full of figures from BigTech. That last one is particularly consequential since Biden’s OMB will dictate almost his entire administration’s ambition. More specifically, a subcomponent of OMB, the Office of Information and Regulatory Affairs (OIRA) could stop progressive regulation in its tracks or, potentially, help to unleash the executive branch’s potential. You can read all about the particulars of OIRA, including a debate on what exactly to do about it, here. The thing to take away is that team members from Amazon, Lyft, and Airbnb, could help put in place people at OMB and OIRA who slow or stop new labor regulations, emissions standards, and so much more. (there are many reasons the Revolving Door Project believes that the “climate czar” should actually be the OMB Director)
As the agency review teams begin to make recommendations for sub cabinet positions on down, the transition’s leadership is likely getting serious about Cabinet picks. Despite pressure from McConnell and corporate America, now is not the time to limit the ambition of those choices. On the contrary, with the pandemic outlook only growing more severe and the economic forecast sliding with it, now is the time for bold picks who will act quickly and creatively to address people’s needs. And if McConnell makes the unprecedented decision to refuse the President a Cabinet, Biden can use the Vacancies Act and recess appointments to make good on his mandate.
Although it may be difficult to drum up popular enthusiasm for procedural workarounds, it’s important to recognize that many popular executive actions may not be possible without these tools. Calls for student debt cancellation, for example, continue to grow. It may be that we need an Acting Secretary of Education to make it happen.
Congressional Oversight
House Democrats were expecting a great night last Tuesday. But instead of expanding their majority, they saw many seats slip away. The debate over who’s to blame is still raging. To absolutely no one’s surprise, the establishment has zeroed in on the party’s progressive wing. Others, including everyone from Rep. Alexandria Ocasio-Cortez to Beto O’Rourke and Sen. Doug Jones, pointed to the party’s underinvestment in long-term institution-building as the true culprit.
The second argument is more convincing than the first, but we believe -- shockingly! -- that the caucus’ failure to perform oversight also played a role in its underperformance on election night. Don’t misunderstand us, we don’t believe that voters cast their ballots for Republicans thinking about how Democrats hadn’t conducted enough hearings. We do think, however, that the lack of oversight was a missed opportunity to tie Donald Trump to the suffering people are enduring and to the corporate interests that Americans hate on an overwhelmingly bipartisan basis.
We do also think that compelling Congressional Republicans to defend the real life implications of their master’s corruption and incompetence would have helped minimize Biden-House Republican split-tickets. Rather than focusing on Trump not wearing a mask, we have argued since *February* that Democrats should conduct oversight on what even then was, to us, “The Trump Administration’s Contemptuous, Pro-Corporate Response to Coronavirus.”
There is, perhaps, no better example than Rep. Donna Shalala, whose loss our Eleanor Eagan analyzed for the American Prospect this week. This spring, Nancy Pelosi tapped Shalala to serve on the CARES Act bailout congressional oversight commission. She began her tenure with an ethics scandal which some (including, full disclosure: RDP) believed should have prompted her resignation from the commission. Since then, she’s hardly made us of her platform at all. “From small-business owners concerned about the survival of their business to homeowners in the district worried about coastal flooding accelerated by the Fed superfueling fossil fuel companies, aggressive oversight could have been a way for Shalala to fight for her constituents.” But she didn’t.
With two Senate races upcoming and a lame duck President getting ready to destroy as much as possible on his way out, Shalala’s race should serve as a cautionary tale.
Governance
It is, unfortunately, easier to undermine institutions than it is to rebuild them. Trump’s recent Executive Order creating a new hiring schedule makes this clear. Political appointees moved into the new job category would be well-placed to wreak havoc but potentially difficult to remove quickly.
The new administration will face similar dilemmas all across the executive branch. That includes at the Department of Justice, a case study this piece considers carefully. In addition to thoughtfully reviewing the challenges, it offers some initial, specific suggestions for how to overcome them. It’s definitely worth a read.
Independent Agencies
The coming months are shaping up to be tumultuous ones at many independent agencies. Last week, Trump replaced the chair of the Federal Energy Regulatory Commission (FERC) after his previous pick was apparently insufficiently loyal to the President’s agenda. With only a few months left in his term, the leadership change should really raise some questions about what Trump is hoping FERC accomplishes under the wire. That makes it all the more important that Biden act immediately to replace the Trump pick as soon as he takes office.
As McConnell continues to slow walk stimulus negotiations and sit on the languishing MSPB nominations, he is finding time for something that is not a judicial nomination. In this case, that is Judy Shelton’s nomination to the Federal Reserve. Shelton is so extreme that it wasn’t clear she would be confirmed. This week, however, Lisa Murkowski indicated that she would support the nomination.
Meanwhile, a handful of independent agency chairs, including at the SEC and the CFTC, are indicating that they will step down when Biden takes office. Biden should move fast to nominate replacements and, if McConnell delays, fill the spots via recess appointment.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Donna Shalala Encapsulated Pelosi’s Embrace of Passivity as a Strategy
How to build a government: Transition challenges await Biden
Just Skip The Senate To Install A Cabinet, Progressives Urge Joe Biden
Progressive message to Joe Biden: Don't you dare “cooperate” with Mitch McConnell
Brainard Faces China Questions If Biden Picks Her for Treasury
Lael Brainard’s Steady Rise Could Culminate in Treasury Secretary Post
Big Tech Is The New Big Tobacco And Joe Biden Doesn’t Get It
How to Tell if Joe Biden Is Hiring the Right People to Address the Climate Crisis
Biden's First Appointees Are a Mixed Bag
Wall Street Wants to Be Sure Biden Can Keep Warren’s Army at Bay
Biden confronts staffing crisis at federal agencies
David Feldman Show 11/9
The Democrats' Civil War Is Back On
Biden names Ron Klain White House chief of staff
Progressives praise Biden's picks for economic transition team