Soon after the November election, President-Elect Joe Biden and his team began the work of identifying nominees for the roughly 4,000 positions across the federal government that are filled via political appointments. Of those, roughly 1,200 require Senate confirmation. Those are generally the highest levels at the various cabinet departments and agencies.
The majority in the Senate remains up in the air until the January 5 runoff elections in Georgia. As it stands, we know Republicans will have at least 50 votes, meaning that the best the Democrats can hope for is having Vice President-Elect Kamala Harris as their tie-breaking vote. That dynamic may have a significant impact on who Biden nominates for many key positions.
While the House of Representatives does not have a role in confirming nominees, the Democrats’ much smaller majority in the 117th Congress may have an impact on the pool of individuals from which Biden would pick. Biden may be less likely to nominate Democratic House members from swing districts. He’s shown he’s not afraid of nominating House members, as he’s already named Representative Cedric Richmond (D-LA-2) to lead the White House office of public engagement. Richmond’s New Orleans-based district is considered safely Democratic and will likely stay in Democrats’ hands in the eventual special election.
The status of the Senate majority would likely preclude nominating many of the higher profile progressives to key spots. Prior to the election, these were rumored to include Senator Bernie Sanders (I-VT) for secretary of labor, Senator Elizabeth Warren (D-MA) for Treasury secretary or former Obama National Security Adviser Susan Rice as secretary of state. However, Biden’s nominees to head the State Department and Treasury, Antony Blinken and Janet Yellen, respectively, suggest he is choosing nominees who can be confirmed without controversy. In December, he named Rice to lead the White House Domestic Policy Council, a position that doesn’t require Senate confirmation.
Another factor in Biden’s choices will be the intraparty tension between progressives and more moderate Democrats. Many progressives have expressed displeasure at some of the president-elect’s early senior staff appointments, particularly that of Richmond, whom they view as too cozy with corporate lobbyists—particularly oil and gas lobbyists.
Many party activists want to see the Biden Administration institute a prohibition on lobbyists serving in senior administration posts. The Obama Administration ostensibly had such a prohibition, but it was routinely waived. Many on the left want a prohibition that cannot be waived, as well as a ban on anyone who has received any reportable contribution from corporate lobbyists. However, they would like to see exemptions for those representing labor unions or certain nonprofits. The more moderate wing of the party opposes any such prohibitions.
The final factor we know Biden will be considering is diversity. He’s publicly committed to having one of the most diverse cabinets in history. The names being circulated for key spots reflect that. For example, he has nominated the first African American to serve as secretary of defense and may pick the first Native American to serve as secretary of the interior. With all that in mind, let’s take a look at some already-announced appointments and the most likely candidates for some positions important to our industry.
Secretary of Health and Human Services
In early December, President-Elect Biden made a surprising choice in California Attorney General Xavier Becerra to lead the Department of Health and Human Services (HHS). Since Biden will be sworn in during the pandemic, his choice for who will lead HHS will be heavily scrutinized. HHS is also the parent agency for the Food and Drug Administration (FDA), which has a significant impact on our industry.
Becerra’s name had been mentioned for a cabinet position, but most speculation focused on U.S. attorney general, not secretary of HHS. Becerra has been California’s attorney general since 2017, taking over the role from Kamala Harris, who had just been elected to the Senate. He previously served in Congress representing parts of Los Angeles for 12 terms. During his time as attorney general, he has made a name for himself in the health-care space. Among the more than 100 lawsuits California has filed against the Trump Administration are ones seeking to stop changes to the Affordable Care Act and access to Medicaid. He’s also leading a group of Democrat attorneys general who are seeking to defend the constitutionality of the Affordable Care Act in federal court against a Republican-led lawsuit. Becerra may face headwinds toward confirmation if Republicans maintain control of the Senate due to his lack of true health-care experience and his staunch pro-choice record.
A factor in some of Biden’s choices will be the intraparty tension between progressives and more moderate Democrats.
Biden also announced other key health-care-related positions at the same time. He tapped Jeff Zeints, a former Obama Administration official, to be his coronavirus response coordinator—a position that does not need Senate confirmation. Zeints’ only health-care-related experience was being tapped with fixing the failed healthcare.gov website, which marred the original implementation of the Affordable Care Act. Biden also chose Dr. Vivek Murthy to reprise a role he held under former President Obama as U.S. Surgeon General. Murthy had previously been mentioned as a possible choice to lead HHS but ultimately accepted a reprise of his previous role. Before making these announcements, it was made known that Dr. Anthony Fauci would remain as director of the National Institute of Allergy and Infectious Diseases at the National Institutes of Health. He also has accepted Biden’s offer to remain on the coronavirus task force and take on the role of chief medical adviser to the president.
Secretary of Treasury
In November, Biden made a historic selection for Treasury secretary with the nomination of Yellen, the former Federal Reserve chair, who would be the first woman to serve in the Treasury role. Many saw this pick as a safe one that would make it through the Senate confirmation process easily and appease both moderate and progressive Democrats. If confirmed, Yellen will lead the Biden Administration’s economic response to the COVID-19 pandemic and could play a leading role in future stimulus negotiations. Notably for the convenience and fuel retailing industry, as Treasury secretary, Yellen will have significant influence over payments policy and potential efforts to raise corporate or other business tax rates.
Secretary of Agriculture
With its oversight of the Supplemental Nutrition Assistance Program (SNAP) and work on biofuels, the U.S. Department of Agriculture (USDA) is an important agency in the convenience retail world. While it’s sometimes viewed as a lower tier cabinet position, it is expected that the secretary of USDA will have a larger role in the Biden Administration as the president-elect seeks to expand the role of the department in his climate change efforts. Marcia Fudge is a Democrat congresswoman from Ohio who was in the running for USDA before Biden chose her to lead the Department of Housing and Urban Development (HUD).
To lead the USDA, Biden has picked yet another alumnus of the Obama Administration. Tom Vilsack is a former governor of Iowa who also served as President Obama’s agriculture secretary for his entire term. Under his leadership, USDA proposed the SNAP “depth of stock” rule in 2016, which would have pushed almost all convenience stores out of the program. Following significant pushback from Congress and the industry, the agency rewrote the rule to make it more workable for small format stores. More recently, he was Biden’s key adviser on rural issues.
Vilsack’s name emerged fairly late in the process and seems to have pushed Representative Fudge (D-OH), a favorite of progressives and those advocating for an African American to take the post, to be chosen instead to run HUD. While likely preferable in the eyes of progressives to former North Dakota Senator Heidi Heitkamp, who was an early front-runner for the post, many on the left do not feel that Vilsack will change the direction of the department enough, particularly in terms of climate-change-related policies or civil rights policies related to the treatment of minority farmers. Despite those objections, his confirmation is considered non-controversial even under a Republican majority Senate.
Secretary of Labor
The Labor Department will likely be active early in the Biden Administration. The Labor Department is expected to roll back changes in the overtime rule and joint employer rules that the Trump Administration made in the past two years. The department will likely seek to make those rules much friendlier to labor unions and harder on businesses.
It is possible that Biden will make a more progressive choice here. The names being circulated for this position are directly associated with organized labor or seen as strong allies. Biden may attempt to get Senator Sanders through the nomination process for this role, the area where the former rivals are in the most ideological agreement.
Others under apparent consideration are California Labor Secretary Julie Su, Association of Flight Attendants President Sara Nelson and Representative Andy Levin (D-MI). Su fits the progressive mold; Nelson has been a darling of the labor community while advocating for her union’s members during the pandemic-related slowdowns in air travel; and Levin has a strong pro-labor record in Congress and before being elected. Levin, however, also represents a district that could yield a Republican win in a special election, which may weigh on Biden’s decision making.
U.S. Attorney General
The top post at the Department of Justice (DOJ) has been the focus of considerable controversy during the Trump Administration. Biden has declared he intends to ensure that whoever leads the department remains free of political interference from his administration. The DOJ post is important to the convenience retailing industry as the department has the ability to investigate the antitrust activity of the payment card networks and to make legal and prosecutorial decisions on issues such as internet gaming and cannabis sales.
Beyond climate policy, the usual debate between the oil and gas industry and the ethanol industry may factor into the confirmation process.
An early top contender for that position is Alabama Senator Doug Jones (D-AL). Jones first came to the Senate by winning a special election to replace former Senator Jeff Sessions (R-AL), who became Trump’s first attorney general. Jones, whose voting record is moderate, lost his re-election bid in Alabama. He is a longtime friend of Biden and has a strong record on civil rights from his time as U.S. attorney before coming to the Senate. Another name being considered is Lisa Monaco, a former Obama National Security adviser who spent 15 years working at the DOJ under the Clinton, George W. Bush and Obama administrations.
Progressives are unlikely to be happy with the selection of Jones and may prefer other candidates, including former Acting Attorney General Sally Yates, who was deputy attorney general under both Eric Holder and Loretta Lynch in the final years of the Obama Administration. President Trump asked her to serve as acting attorney general in the early days of his term in 2017 while Sessions’ nomination was being considered. However, she was quickly fired by Trump on January 30, 2017, after refusing to enforce his executive order restricting travel from a number of predominantly Muslim countries.
Secretary of Transportation
Biden has indicated he will seek to expand his efforts on climate change beyond the Department of Energy (DOE) and Environmental Protection Agency (EPA). He is likely to seek more involvement from departments such as Transportation and Agriculture in those efforts. The next Transportation secretary certainly will explore expanding the use of electric vehicles and other alternative fuel sources. A leading candidate for the position is Los Angeles Mayor Eric Garcetti. He has the experience of overseeing Los Angeles’ massive public transportation infrastructure and has been a strident ally of Biden’s for years. He’s also term-limited as mayor in 2022. Other names reportedly under consideration are Representative Earl Blumenauer (D-OR) and former Chicago Mayor and Obama Chief of Staff Rahm Emanuel.
Environmental Protection Agency Administrator
Whomever Biden picks as EPA administrator will be in the eye of the storm in the fight over climate change policy. The administrator will have significant influence over fuels and environmental regulations that directly impact the convenience and fuel retailing industry. Biden will seek to undo many of the Trump Administration’s actions and will likely eye someone with a strong clean energy and/or conservation background for the post. This is another position where the Democratic Party’s left wing will want a nominee with a progressive record, but it is also one where it will be difficult to get a progressive past a Republican Senate.
Candidates popular with the left wing of the party are Mary Nichols, who is the current chair of the California Air Resources Board; Heather McTeer Toney, who is a former EPA official and currently a senior official at Moms Clean Air Force; and Washington Governor Jay Inslee. Beyond climate policy, the usual debate between the oil and gas industry and the ethanol industry may factor in the confirmation process. If Republicans do retain the Senate majority and block these nominees, other names that could be considered are two executives from the National Wildlife Foundation. CEO Collin O’Mara, who served in the same Delaware cabinet with Biden’s late son, Beau, or Vice President Mustafa Santiago Ali, who resigned from a senior EPA position after more than two decades serving there soon after Trump took office in 2017.
Special Presidential Envoy for Climate
With climate change a priority, the president-elect announced that former Secretary of State John Kerry will serve as special presidential envoy for climate, which will put Kerry in charge of coordinating the administration’s climate strategy. Often referred to as the “climate czar,” this position does not need Senate confirmation. In this role Kerry will hold a seat on the National Security Council—the first time the council will include someone dedicated to climate change—a longtime goal of environmental groups. If Republicans hold the majority in the Senate, Biden will have to rely on executive action on climate policy, and naming a special envoy on climate is critical to this effort.
There is still a lot to be learned about who will serve in Biden’s cabinet. These are the positions that are likely to most directly impact our industry, but there are many others NACS will be monitoring. It remains to be seen how long it will take the Biden Administration to get all of the necessary appointments through a Republican or evenly divided Senate.
Editor’s Note: This information was current as of December 10, 2020.