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DLC | E-newsletter | August 20, 2010
A Simple Solution to the Appointment Mess

The Senate takes it on the chin in George Packer's celebrated New Yorker article last month: long speeches to empty chambers, constant filibusters, few new laws, endless rounds of fundraising, frustration. We've pointed out that Congress has actually achieved a lot more than many realize. But we are struck by one of Packer's anecdotes, because it illustrates a problem that the DLC's Ed Gresser pointed out a year ago -- and this problem has a simple solution that might let the Senate achieve more by trying to do a bit less.

The problem is the struggle over appointments and nominations. Packer raises it as he recounts an unpleasant day last April:

"On April 20th, Claire McCaskill took the trouble to read off the names of fifty-six Obama nominees languishing in the limbo of secret holds, and Jon Kyl objected to every one of them."

Some of the names have changed since then, but the basic landscape is about the same. Nineteen months after the inauguration and a third of the way through President Obama's first term, fully 141 officials languish in the netherworld of vetting, committee hearings, holds, and Senate floor scheduling. One of them is Rafael Borras, nominated as Under-Secretary for Management at the Department of Homeland Security and reported out of the Homeland Security Committee last October. Elisabeth Ann Hagen is another, nominated in January as Under-Secretary for Food Safety at the Department of Agriculture. Anne Harrington has waited since early summer to take up her rather important work as Deputy Administrator of the Energy Department's Defense Nuclear Non-Proliferation Office. Michael Mundaca, nominated as Assistant Secretary of the Treasury for Tax Policy in October 2009, now serves temporarily with a recess appointment; Teresa Takai, the nominee for Chief Information Officer at the Department of Defense, has been waiting since early April.

Gresser's point was that this is totally unnecessary. These are line officials who are part of the president's policy team, not the sort of top official in which the Constitution envisions a role for the Senate. By trying to confirm too many appointees, the Senate has slipped into micromanagement of appointments, eroded the separation of powers and diverted its own members from their main jobs.

Some background: Nominations have an aura of deep tradition and constitutional rigor, and the Constitution explains them in suitably ornate language:

"[The President] shall nominate, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for."

To the diplomats and Justices specified in the Constitution, early Congresses added lower tiers of judges, military officers, and Cabinet-rank officials. Since the 1950s, though, the nomination system has spread swiftly down the ranks of the civilian agencies. The Senate now confirms not just a couple of dozen cabinet officers and agency heads, but well over 300 mid- and upper-middle appointees: 41 Deputy Secretaries, Deputy Administrators and Deputy Directors; 43 Undersecretaries; 170 Assistant Secretaries; and six Associate Secretaries and Associate Administrators -- not to mention 15 General Counsels, 12 Deputy Undersecretaries, 10 Chief Financial Officers, a Chief Scientist, a Chief Counsel, and a Chief of Protocol, assorted Solicitors and Bureau Directors, and more.

This system is time consuming and expensive. Vetting even one nominee eats up dozens or hundreds of hours of staff time at the White House and in agencies, with investigations going well beyond the FBI's professional security clearances to pore through meaningless old blog posts, e-mails, and payment records for part-time dog-walkers and babysitters. In the Senate, both parties now hire their own investigative staff for the same job, meaning confirmations eat up twice the time and expense in Congress as in the Executive. And these, mostly pointless, investigations are only the beginning. Clearing a path for a vetted nominee then requires personal negotiations among senators for hearing times and floor scheduling. Then, if all goes as planned, the nominee gets a perfunctory hearing and a voice vote, three to six months after the president wanted him or her on the job.

And as Packer pointed out, it rarely goes as planned. Nominees patient enough for the vetting ordeal then become motionless targets for the "holds," cloture motions, and other delaying tactics sprinkled through the Senate rule book. Sometimes these holds are simply malicious partisan harassing fire, meant to make life difficult for a president of the other party. More often they are tactics meant to achieve petty, parochial and local goals -- Kentucky's retiring Senator Bunning blocked confirmation of a top American trade negotiator for Europe and Latin America over Canadian policy vis-ยด-vis candy-flavored cigarettes, and Alabama's current Senator Shelby blocked 70 nominees earlier this year in the hopes of winning earmarks for local spending projects like aerial tanker refueling contracts and money for an FBI explosives research center.

Such abuses are obviously grossly unfair to the nominees and their families -- many have to put their houses on the market in preparation for a move to Washington, and those with young children don't know where to enroll them in school -- and while achieving little for the perpetrators, guarantee mirror-image revenge on that faraway day when a Republican president takes office.

Gresser's solution was simple: abolish all the unnecessary confirmations and return to the Constitutional formula. The Senate should continue to confirm officials who need special attention. Judges are members of a separate branch of government who shouldn't be wholly under any president's control. Ambassadors and Consuls speak for the nation as well as a particular president to foreign governments. Cabinet officers, as the principal spokespeople and policy advisors on particular issues, should go through a rigorous nomination process, too. And Inspectors General, as officials who need independence from the agency they serve to be effective, probably also need the support Senate confirmation gives. Otherwise, presidents, Democrats and Republicans alike, should be free to pick their own teams, assuming they pass the FBI's professional security investigations.

Confirmations for the mid-level appointees waste time the Senate could use for its principal responsibilities -- passing and revising laws, debating treaties, overseeing the behavior of agencies, appropriating money, and the like. They take money we don't have, in a Senate whose operations already cost nearly $1 billion a year, and ought to get the same budget scrutiny other parts of the government are going through. And as they spread down the chain of appointments, they're intruding ever more deeply into the separation of powers, eroding the right of presidents to choose the people they want.

Why, then, do we have them at all?

RESOURCES:

Gresser on nominations and confirmations:
http://www.dlc.org/ndol_ci.cfm?contentid=254996
&kaid=127&subid=177

The Constitution (see Article 2, Section 2, paragraph 3 for nominations): http://www.archives.gov/exhibits/charters/constitution_transcript.html

George Packer on the Senate:
http://www.newyorker.com/reporting/2010/08/09/100809fa_fact_packer

The McCaskill/Kyl exchange:
http://thomas.loc.gov/cgi-bin/query/z?r111:S20AP0-0014:

The White House's Nominations and Appointments page:
http://www.whitehouse.gov/briefing-room/nominations-and-appointments

The Senate's nominations and confirmations page:
http://senate.gov/reference/Nominations/Index.htm

And the "Plum Book" lists administrative appointments. In total, the Senate has taken on the job of confirming 1141 Cabinet officers, line officials, members of Commissions and Boards, and other officials, not including judges:
http://www.gpoaccess.gov/plumbook/2008/index.html