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By Marion Edwyn Harrison, Esq.
January 09, 2008
Regardless of one’s opinion of Federal Government jurisdiction in a particular regulatory subject matter, no regulation can function efficiently - some not at all - unless the necessary personnel are on board. Seven Federal regulatory agencies glaringly are deficient in top personnel.
The Federal Election Commission (“FEC”) by law is authorized six Commissioners; it presently has two, not so much as a quorum. Hence, as the key election year 2008 commences FEC cannot function.
The Federal Labor Relations Authority (“FLRA”) by law is authorized three Members; it presently has two (one Democrat, one Republican). While two constitute a quorum, the two must agree with one another for FLRA to resolve a dispute.
The Federal Mine Safety and Health Review Commission by law is authorized five Commissioners; it presently has two, no quorum, no function. And this impasse occurs as a year of unusual, and very tragic, mining accidents - including deaths - concludes.
The Chemical Safety and Hazard Investigation Board by law is authorized five Members; it presently has two. The Chairmanship also is vacant. Thus, investigation of industrial chemical accidents, risking human life and injury as well as pollution, seriously is jeopardized.
The Occupational Safety and Health Review Commission (“OSHA”) by law is authorized three Commissioners; it now has two. Thus, both Commissioners must agree as to citation or penalty arising from a workplace deficiency, even if affecting human life and limb.
The other two agencies exercise broader scopes of jurisdiction but as the Federal scenario is constituted are of major importance to banking and to the economy.
The Federal Reserve Board of Governors oversees the entire national banking system - hundreds of banks, many of which have earnings (and sometimes other) deficiencies. By law the Board is constituted with seven Members; it presently has four, barely a quorum - and the term of one of these has expired (but by law the Governor may hold over until a successor qualifies).
Perhaps a few economists and politicians would argue that the Council of Economic Advisors is a needless Federal agency. However, as a matter of law it has an important advisory function and is supposed to have three Members but as of this writing has only one.
As the 2d Session, 110th Congress, is soon to convene, a number of other Federal agencies have vacancies, at a minimum five of which exercise very important functions: Commodity Futures Trading Commission, Federal Communications Commission, Federal Maritime Commission, National Transportation Safety Board, Nuclear Regulatory Commission. These have quorums and are functioning but vacancies render their work more difficult.
A few of this tremendous, and probably unprecedented, number of vacancies may be the fault of President George W. Bush for having nominated too slowly and, in a case or two, too controversially. However, this aspect is, as we lawyers say, de minimis - meaning it’s insignificant. The real trouble is a United States Senate the Majority Leadership of which almost routinely defers, and often blocks, Presidential nominations. Regardless of which party wins the Presidency come January 20, 2009, the functioning of government requires fully staffed operations in the year-plus between today and then. At the very least a recalcitrant and overly politicized Senate threatens many functions of governance.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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