The Washington PostDemocracy Dies in Darkness

GOP’s Senate delays allowed changes at product safety regulator. Critics say ‘power grab’ puts public at risk.

Slow confirmations are common but rarely play out with such clear consequences

The Consumer Product Safety Commission's headquarters in Bethesda, Md. (Todd Frankel/The Washington Post)

A short-lived Republican majority atop the nation’s product safety regulator — the result of Senate delays in confirming Democratic nominees — recently pushed through dozens of last-minute changes to the agency’s annual plan, slowing work on some safety rules and abandoning at least one enforcement effort altogether.

The changes mean the Consumer Product Safety Commission no longer plans in the coming year to draw up new mandatory rules for preventing suffocation in infant nursing pillows or carbon monoxide poisoning from gas appliances. The amended plan also canceled a pilot project looking at the growing concern over the safety of products found online, rather than in brick-and-mortar stores.

“It’s incredibly disconcerting,” said Rachel Weintraub, general counsel at the advocacy group Consumer Federation of America.

Supporters of the changes defended the moves as “not substantive” and broadly supported, pointing to one amendment that added 27 product safety inspectors at American ports.

The Republican push to amend the CPSC’s operating plan ignited a contentious fight over the direction of a federal agency with the power to force dangerous products off the market and the responsibility of overseeing safety in 15,000 everyday items.

The changes occurred during a brief period in late September when Republicans held a 2-to-1 voting advantage over Democrats on the five-member CPSC board, with two seats vacant. At the same time, three Democratic commissioner nominees awaited Senate confirmation — in part because of delays created by Republican senators, according to four government officials who spoke on the condition of anonymity because they were not authorized to talk with the media.

The new operating plan ended up being approved on a party-line vote, a result that the agency’s one Democratic commissioner then threw out, only for it to be resurrected by the two Republican commissioners who overruled him and passed the same plan again. Agency officials said they’d never seen anything like it.

The clash also highlights a broader problem facing President Biden’s administration: the slow pace of Senate confirmations. Biden’s nominees for government boards and agencies have faced longer waits than those from prior administrations, according to the nonpartisan group Partnership for Public Service.

Tracking the political nominees Biden is nominating to fill roles in his administration

The delays can be attributed, in part, to the sheer number of nominees needing confirmation. But another factor is that one senator can hold up a confirmation vote for any reason, without announcing it publicly. For example, Sen. Ted Cruz (R-Tex.) revealed that he is blocking several Biden nominations for the State Department.

“It absolutely has gotten worse. The gaps are everywhere,” said Max Stier, the Partnership for Public Service’s chief executive. “And no one is really paying attention.”

And rarely does the sluggish pace of Senate confirmations play out with such clear consequences as it did at the CPSC.

The three commissioners who voted on the operating plan — Democratic acting chairman Robert Adler and Republican commissioners Peter Feldman and Dana Baiocco — declined to comment on the record. But public letters they sent about the dispute shed some light. And five senior CPSC officials offered their views about what occurred on the condition of anonymity so they could discuss closed-door discussions.

“It’s been a fairly brutal process,” one senior official said.

The CPSC’s operating plan is a blueprint for what regulators expect to work on for the next fiscal year, which began in October. It spells out work on new safety guidelines and details enforcement priorities. The agency’s staff draws it up. The commissioners vote on it. And it is normally a routine affair.

The Republican commissioners issued more than 40 amendments to the original plan at the last minute, which all passed. Some appeared to be minor, such as changing “classes” to “subclasses” in a study of flame-retardant chemicals. That matched the wording from a prior year’s plan.

But other amendments appeared to call for significant changes in the agency’s focus.

“That’s why it’s important to talk about these issues with staff beforehand,” said a CPSC senior official familiar with Adler’s thinking.

The Republican amendments to the plan eliminated gas appliances from a project studying ways to reduce the risk of carbon monoxide poisoning but kept in portable generators. They also canceled plans for gas appliances to be the subject of a new mandatory safety rule on carbon monoxide. Instead, the agency will conduct “data analysis and technical review.”

A senior CPSC official familiar with Feldman and Baiocco’s views said they felt more work was needed.

“We need data to ensure we do a good job,” the official said.

But a senior official close to the Democratic commissioner said the change is an attempt to slow the development of a new safety standard.

The new plan also cut the phrase “for targeted enforcement” from a description of a list of high-risk holiday season products. The Republicans felt the phrase was unnecessary, officials said, while Democrats believed its elimination was an attempt to muddy the list’s purpose.

The amended plan also halted work on a new mandatory safety rule for infant nursing pillows. Instead, the agency is directed to work with the industry on a voluntary safety standard. The pillows are popular products and similar to the infant loungers recalled in September in conjunction with the CPSC after eight babies in five years accidentally suffocated in them.

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The new plan also mothballed an enforcement effort aimed at “at least two products customarily purchased online” — which was seen as a step toward contending with troublesome online retailers.

“It’s very clear they are ending rulemaking and rolling back enforcement,” said Weintraub, of the Consumer Federation of America.

The three commissioners voted Sept. 24 on the CPSC’s original proposal for the 2022 fiscal year.

Adler, a Democrat, voted for it. But the two Republicans offered the more than 40 amendments and voted for that version instead, passing it 2 to 1.

Adler felt blindsided, according to two agency officials.

“Five minutes before the votes were due, they submitted [dozens of] amendments and voted them out and didn’t give him a chance to look at them,” one senior official said.

The Republican commissioners, Feldman and Baiocco, felt they had done nothing wrong, according to two senior officials.

“I think the process wasn’t unusual,” said another senior official. “The votes are what they are.”

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But two days later, Adler announced in a letter that the CPSC’s acting general counsel ruled the vote was “null and void.”

The opinion from acting general counsel Jennifer Sultan has not been made public. But a copy reviewed by The Washington Post showed Sultan determined agency rules require any “substantive change” to be shared with senior agency officials beforehand.

Adler accused the two Republican commissioners of “Government by Ambush” and “a power grab” in a statement the next day.

Feldman and Baiocco responded with a statement celebrating the changes they made.

“Unfortunately,” Adler wrote back, “stating something categorically and with enthusiasm simply doesn’t make it true.”

Not to be outdone, Feldman and Baiocco then voted for a measure saying the general counsel couldn’t cancel a commission vote and again adopted their amended plan. Adler voted against it, but he was outnumbered.

Adler found himself on the losing end because Biden’s three nominees for CPSC commissioner slots had yet to be confirmed by the Senate, despite being formally nominated in July.

Each nominee faced different hurdles, according to three government officials. One of them, CPSC Executive Director Mary Boyle, was waiting for a Senate committee to take action. Another, Rich Trumka Jr., appeared to have been blocked by an unknown Republican senator.

Alex Hoehn-Saric appeared to be the only one with an open shot at confirmation. He was nominated to be CPSC chairman as Adler planned to retire.

But he ran afoul of Sen. Roger Wicker (R-Miss.), who sits on a committee with oversight of the CPSC.

Shortly after the contentious first vote on the CPSC’s operating plan, Wicker wrote a letter praising the changes made by the two Republican commissioners and condemning the Democratic commissioner’s failed attempt to overturn them.

“There is no way to interpret this action except as a brazen act of sabotage by an acting Chairman who found himself on the losing side of a vote,” the senator wrote.

At the same time, Wicker quietly blocked Hoehn-Saric’s nomination, according to Senate aides who spoke on the condition of anonymity because they were not authorized to speak with the media.

Hoehn-Saric’s nomination remained on hold until the CPSC wrote to Wicker to reassure him that the agency would follow the Republican-amended plan. Wicker allowed the nomination to move forward. It sailed through the Senate earlier this month. Hoehn-Saric declined to comment.

Today, with Hoehn-Saric on the commission, the CPSC is tied 2 to 2.

Its operating plan seemed unlikely to change.

That would require a majority vote.