Dana Baiocco

Subscribe to Dana Baiocco
© Getty Images

Two weeks ago, after the Senate confirmed Dana Baiocco to the U.S. Consumer Product Safety Commission (CPSC), we wrote that it would not be a surprise if President Trump appointed a fifth commissioner in the coming weeks to give the Republicans a 3-2 voting majority on the Commission. Well, on June 4, the President nominated Peter A. Feldman to be a Commissioner of the CPSC. This is a very significant development. If confirmed, Feldman will fill the remainder of former Commissioner Joe Mohorovic’s term, which expires in October 2019, and give the Republicans their first majority at the Commission in nearly twelve years. The confirmation would also allow Acting Chair Ann Marie Buerkle to start to move the agency in a direction that reflects her regulatory priorities, as well as those of the Administration.

Mr. Feldman is known to many in the product safety community. Having served as legal counsel at the Senate Committee on Commerce, Science, and Transportation since 2011 (most recently as Senior Counsel), he is knowledgeable and well-versed in consumer product safety law and the activities of the Commission. He is a graduate of American University’s Washington College of Law.

Upon his nomination, Senate Commerce Committee Chairman John Thune (R-SD) stated the following:

“Peter has been part of the Commerce Committee team and an invaluable resource during my entire tenure as ranking member and chairman. While I will miss his steady hand in our committee’s bipartisan efforts to fight for consumer safety and fairness, the Consumer Product Safety Commission will benefit from his expertise and leadership. Once the committee receives the formal nomination and other required submissions, I expect we will move quickly to convene a confirmation hearing.”

We expect Feldman’s nomination to move faster than that of Commissioner Baiocco. Should Feldman be confirmed to fill former Commissioner Mohorovic’s term, we also expect President Trump to re-nominate him for a new seven-year term in October 2019. In the meantime, until Feldman’s confirmation, the Commission remains in a 2-2 voting “tie.”

© iStock

The 3-1 Democratic majority at the U.S. Consumer Product Safety Commission has officially come to an end one and a half years after the election of President Trump and eight months after the nomination of Dana Baiocco as a commissioner of the CPSC. This afternoon, the United States Senate voted 50-45, mostly along party lines, to confirm Ms. Baiocco to the Commission. This confirmation is significant.

As of today, Ms. Baiocco will be able to take her seat on the Commission, and Commissioner Marietta Robinson, currently in her “hold-over” year as her term expired last October, will depart the agency. Commissioner Baiocco’s arrival at the CPSC will shift—or at least begin to shift—the Commission’s balance of power from Democratic to Republican control.

With Ms. Baiocco’s confirmation, Republicans will hold two seats on the Commission currently occupied by Acting Chair Ann Marie Buerkle and Commissioner Baiocco. They will serve alongside Democratic Commissioners Robert Adler and Elliot Kaye. The fifth seat on the Commission has remained vacant since former Republican Commissioner Joe Mohorovic resigned from the agency last October.

Commissioner Baiocco’s confirmation marks an end to the unusual dynamic whereby the Commission’s leader, Acting Chairman Ann Marie Buerkle, a Republican, was in the minority, and generally unable to implement the regulatory priorities of the Administration. Although Acting Chairman Buerkle will not command a 3-2 majority until the President appoints a fifth commissioner (who must also be confirmed by the Senate), the Democrats will no longer have a de facto majority to control the agency’s agenda.

While Ms. Baiocco’s confirmation certainly changes the balance of power at the Commission, some political limbo and uncertainty remains. Acting Chairman Buerkle’s nomination to be permanent Chairman remains pending—and there is no indication from the Senate that it plans to move the nomination forward as it has just done with Ms. Baiocco’s nomination. Moreover, although the Democrats have lost their 3-2 majority on the Commission, a 2-2 voting “tie,” may result in stalemate as Acting Chairman Buerkle does not have any tie-breaking authority as Chairman.

Nevertheless, we can now expect the Commission to start to move in a direction that reflects some of the Administration’s regulatory priorities and agenda. Furthermore, we would not be surprised if President Trump appointed a fifth commissioner in the coming weeks to once again shift the balance of power—this time, giving the Republicans a 3-2 voting majority.

© Thinkstock

President Trump has nominated Dana Baiocco to be Commissioner of the Consumer Product Safety Commission. The appointment is for a term of seven years beginning on October 27, 2017. Ms. Baiocco is currently a litigator at Jones Day. According to her firm’s bio, she has litigated cases involving “mass torts, consumer and industrial products and medical devices” and has counseled clients on “minimizing risks, regulatory and reporting obligations, warranties, and CPSC product recalls.”

This nomination is significant. With the expiration of Democratic Commissioner Marietta Robinson’s term in late October, Baiocco’s eventual Senate confirmation will shift the Commission’s balance of power. Specifically, it will mark an end to the unusual dynamic of the Commission being led by a “Minority Chair” (Republican Commissioner Ann Marie Buerkle), who does not command a 3-2 voting majority based on political party. Upon Baiocco’s confirmation, Republicans will regain the Commission’s majority.

Our prior blog posts have reflected on Acting Chair Buerkle’s philosophy and priorities for the Commission, which may now start to come into fruition. Assuming Acting Chair Buerkle is confirmed as Chairman later this month, with the new Republican majority, we can now expect the Commission under the Trump Administration to come into focus and likely reflect some of the Administration’s regulatory priorities.

We congratulate Dana Baiocco on her nomination, and expect her confirmation in the coming months.