Has the White House Missed Its Chance on Fed Nominations?

WASHINGTON — It's not clear there's time left in the legislative calendar for President Obama to fill the final slots on the Federal Reserve Board this year, raising questions about what happens to those seats after the elections.

The Senate has already confirmed or reconfirmed several Fed governors this year, including Chair Janet Yellen, but the seven-member Board remains two seats shy of full. Despite reports that the White House has tried to vet several possible contenders, it does not appear the administration is any closer to officially announcing nominees. That lack of movement could prove risky, as Democrats and Republicans duke it out for control of the Senate next year.

"There are two glaring vacancies, including one representative for community banks and one overseeing regulatory efforts, and all signals are that the White House is no closer to actually nominating someone," said Isaac Boltansky, a policy analyst at Compass Point Trading and Research. "That's concerning given the tight timing — especially if Republicans win the Senate in November."

Many observers said it could be an uphill battle to get nominations through a Republican-controlled Senate next year, especially as partisan frustrations linger over Majority Leader Harry Reid's decision to change filibuster rules for confirmations last year.

The move, which lowered the filibuster threshold from 60 votes to 51, allowed Democrats to confirm a number of agency and judicial appointees, and it's unclear how Republicans would return the favor if they take over the chamber.

But that gamble may already be set into motion, because the clock is ticking down quickly for congressional action this year. Lawmakers are expected to be in session for just a handful more days before the November mid-term elections, and the length of the lame duck session later this fall has yet to be determined.

That leaves very little time to move nominees for the Fed through the entire — and often lengthy — process required for confirmation. Financial regulator nominations are resolved in an average of 137 days, or roughly four and a half months, according to the Bipartisan Policy Center's nominations tracker, which uses data since 2000.

"The painful reality is, there may not enough time left," said Dwight Fettig, a partner at Porterfield, Lowenthal, Fettig & Sears and former staff director of the Banking Committee. "The White House has to name the nominees, complete and submit the paperwork, the nominees have to have pre-visits with senators on the Banking Committee, the committee has to schedule and hold a hearing, allow for written questions for the record from committee members and time for the nominees to answer them after the hearing, and then hold a committee vote, all before finding time for a floor vote — and in what's going to be a very limited lame duck session."

While the process can move faster — Department of Housing and Urban Development Secretary Julian Castro was nominated in late May and confirmed by early July — it's not clear that would be the case for the Fed nominees.

"These things can be jammed through, but it's very difficult if the person is at all controversial," said Mark Calabria, director of financial regulation studies at the Cato Institute.

That's particularly true now that several senators have taken a keen interest in seeing a community banker on the Fed Board. The Senate approved a provision in July that would require one governor to have experience working in or regulating community banks, as part of a larger vote on the reauthorization of the terrorism risk insurance program. The board also has an opening for a vice chair of banking supervision — a position mandated under the Dodd-Frank Act that has yet to be filled. Gov. Daniel Tarullo has been informally playing that role since he joined the Fed in 2009.

So far, the two seats vacated by Sarah Bloom Raskin, who joined the Treasury Department, and Jeremy Stein, who returned to academia, have been open for just 183 and 107 days, respectively, as of Friday. That's less than the average time of 190 days that a Fed seat has remained vacant, according to the Bipartisan Policy Center's nominations data — except that in this case there are still no clear signs of movement on the horizon.

"Both departures were well telegraphed to the administration before the governors left, so I would have thought they'd have names in the queue and would have acted faster," said Aaron Klein, director of the financial regulatory reform initiative at the Bipartisan Policy Center.

Observers speculated that part of the strategy might be that with five governors in place, the Fed is not in dire need for new members. The White House has also reportedly ramped up its focus on confirming federal judges, which make take priority over filling the remaining Fed seats.

"You don't need a full complement to run the Fed, so they may be thinking, why rush on this when we have who we need in there?" said Calabria.

But there are still reasons why a full Fed Board would be beneficial. Fed staff report up to internal committees, typically comprised of three governors, with one serving as chair. With fewer sitting Board members, there's more responsibility to go around.

"With just five members, some board governors have to do double duty as the chair of two committees," said Klein. "Internally, that empowers the Fed staff at the expense of the governors, who are short-handed and asked to take on more responsibility."

The shortage also tips the balance of the Federal Open Market Committee. The 12-member FOMC is designed to include all seven governors, along with five of the regional bank heads. But currently the committee is made up of just 10 members, five of each.

"The setup and design of the Fed is to give the presidentially appointed Fed governors a majority on the FOMC," said Klein. "And it's increasingly rare for a presidentially appointed governor to dissent."

But the reality is that the Fed confirmation process is now expected to bleed into next year, even if the White House announces nominees in coming months.

"I know there's a lot of thought about what may occur in the lame duck, but my guess is that there will not be a huge nomination package — this doesn't meet threshold of things that have to be done," said one financial services executive, who spoke on condition of anonymity. "My guess is that names may be unveiled at some point, but we won't see the full complement of Fed governors in place until next year."

The executive added that there's a danger to naming candidates too early, because it leaves them open to prolonged attacks from critics — particularly ahead of a competitive election season.

"It's in everyone's interest to wait until we know the outcome of elections — if they put names forward now, they're not likely to be acted upon and that provides time for people who don't like a potential candidate to attack that person," the executive said.

If Democrats hold on to a narrow majority in the Senate, the process is less likely to be disrupted, and the White House would be able to bide its time in terms of choosing the Fed governors.

Still, the process can't drag on too long if Obama conforms to an informal convention in Washington to avoid making long-term appointments near the end of an administration, out of deference to the next president. The so-called Thurmond Rule often applies to judges, who serve for life, but could also be considered in the case of Fed governors, who serve 14-year terms.

Meanwhile, if Republicans win control of the chamber, all bets are off. Observers suggested that a bipartisan deal on nominees could be possible, but there are many questions about how that process would play out. For example, Sen. Mitch McConnell, R-Ky., could opt to undo Reid's filibuster rules change — assuming he wins reelection this fall and takes the Majority Leader spot. It's also unclear what kind of political climate the new Congress would begin under, and how much animosity would exist between a Republican-controlled Congress and the Democratic White House. The landscape could make it difficult for Obama to get nominees through at all during his final two years in office.

Still, if both sides were in a deal-making mood, the Fed nominations process could be bolstered by the fact that there are two open slots — meaning each side could potentially select a nominee.

"The folks in the new Senate majority may say, listen, there's two openings, you come up with the community banker and we'll come up with someone else, and if you don't want to play ball, then you don't get anybody," said the executive.