It has long been said that politics makes strange bedfellows. In this case, Ann Marie Buerkle, the Acting Chairman of the United States Consumer Product Safety Commission, a Republican, sided with Democratic Commissioners Robert Adler and Elliot Kaye to elect Commissioner Adler as the incoming Vice-Chair of the Commission. That means Commissioner Adler will assume the Acting Chairmanship of the agency when Ms. Buerkle steps down as Chairman on September 30, 2019—a little less than one year after the Republicans gained the majority on the Commission for the first time in twelve years.
In today’s hyper-partisan politics, such a vote is noteworthy and surprising to many. Currently, the Commission is made up of five commissioners—Republicans Buerkle, Dana Baiocco, and Peter Feldman, and Democrats Robert Adler and Elliot Kaye. Traditional, partisan thinking presumes that the majority of the Commission (i.e., the three Republicans) would have elected a Republican to replace Ms. Buerkle as Acting Chair of the agency. But that is not the case here.
In a statement issued on Friday, Ms. Buerkle stated that “consumer protection is not political” and that she believed the incoming Acting Chairman should be “the most experienced, most senior commissioner who has previously served in this role.” A commissioner since 2009, Mr. Adler served as the Acting Chairman of the Commission in late 2013 and early 2014 upon the departure of then-Chairman Inez Tenenbaum. Although Ms. Buerkle and Mr. Adler, admittedly, have diverging political and regulatory philosophies, they are known within the product safety community to have a cordial working relationship grounded in mutual respect.
So what does this mean for the regulated community and other product safety stakeholders? In the short term, upon Acting Chairman Buerkle’s departure from the agency altogether on October 27, 2019 (about one month after she relinquishes the chair to Adler), the Commission will return to a 2-2 split along party lines and presumably some partisan gridlock, although the Commission will continue to operate according to its current fiscal year’s operating plan. As to longer term implications, presumably, Friday’s vote will incentivize the White House to nominate, and the Republican-controlled Senate to confirm, a third Republican commissioner to restore the Republican majority upon Ms. Buerkle’s departure from the agency in late October.