Senate Fails to Confirm Biden’s Pick to Lead Benefits Agency (2)

The US Senate failed to confirm Lisa Gomez to head the Department of Labor’s Employee Benefits Security Administration, an unexpected turn for the nominee but not the first time one of the president’s picks for key posts at the agency has been derailed.

The Senate voted 49-51 Wednesday on the question of confirming Gomez as assistant secretary of labor for the employee benefits agency. Gomez could be reconsidered before the full Senate at some point in the future, because Senate Majority Leader Chuck Schumer (D-N.Y.) changed his “yes” vote at the last minute to allow it. A spokesperson for Schumer didn’t respond to a request for comment.

This is the second labor nominee the Senate has failed to advance. The Senate tanked David Weil, Biden’s pick to be the Labor Department’s Wage and Hour Division administrator, in March, when moderate Senate Democrats voted against him.

Today’s vote wasn’t expected to be a tie, according to a senior Senate Democratic aide. Republican Sen. Lisa Murkowski (Alaska), who voted in favor of Gomez’s nomination twice in Senate Health, Education, Labor and Pensions committee markups, ultimately voted against Gomez on the Senate floor.

“When it came down to an up or down vote on confirmation—Senator Murkowski opposed Lisa Gomez’s nomination on the floor due to policy concerns with the Biden administration’s actions on fiduciary regulations and Gomez’s role in implementing those regulations as the head of EBSA,” a spokesperson for the senator said in an emailed statement.

Murkowski voted in favor of Gomez’s nomination first in December, and then again in January. Gomez had to be renominated at the beginning of the year, which is why she required two markups. Murkowski did not vote on the question of whether to limit debate on Gomez’s nomination on May 25.

Vice President Kamala Harris would have been required to break the 50-50 party line vote to confirm Gomez, but she is currently in Los Angeles, according to her public schedule.

A senior Senate Republican aide told Bloomberg Law that Schumer “didn’t do his homework, and was caught by surprise—again—that a radical labor nominee generated concerns.”

Vote Failure

The vote outcome “showed there are enough votes to confirm Gomez to the position, and Majority Leader Schumer’s (D-NY) vote against the nomination will allow him to bring it to the floor again for a successful confirmation vote soon,” the Senate labor committee said in a written statement. A spokesperson for the committee didn’t respond to further questions on why the vote failed.

Michael Kreps, a former Democratic staffer on the Senate labor committee who is now an employee benefits attorney, said there’s nothing to be gained by delaying the confirmation.

“The vote was unfortunate, and it is incredibly disappointing that confirming a qualified nominee to head EBSA has, for some reason, become a partisan issue,” he said. “Workers, retirees, and the entire retirement industry benefit from having competent leadership at DOL.”

He said he expects Gomez will be confirmed, because Democrats can do so without GOP support.

“Qualified nominees deserve better treatment by the United States Senate,” Kreps said.

Ary Rosenbaum, a former colleague of Gomez’s from Cohen, Weiss & Simon LLP in New York, was shocked by the vote outcome.

“I’m flabbergasted. This is just so strange,” he said. “Procedurally, I guess Vice President Harris wasn’t there to break the tie vote, but I don’t know why they brought it up.”

Veteran Benefits Attorney

Gomez is a long-serving partner at Cohen, Weiss & Simon, where she focuses on employee benefits.

The Labor Department agency is charged with protecting employee benefit plan participants and beneficiaries. It’s currently facing litigation over recently issued guidance that cautioned the inclusion of cryptocurrency in 401(k) plans.

The agency is also deliberating over whether and how it could proceed with a proposed regulation on environmental, social, and governance retirement investing—a pitch that’s drawn ire from more conservative parties, and which held up Gomez’s nomination last year.

“She’s very level-headed,” Rosenbaum said. “She has the right temperament for this position.”

(Editor’s Note: Gomez is co-chair of the Board of Senior Editors for Bloomberg Law’s Employee Benefits Law treatise.)