As President Obama settles into his second term, a number of presidentially-appointed positions that require Senate confirmation remain vacant – more than were vacant at the end of Bill Clinton’s and George W. Bush’s first terms in office. Of the 68 positions that remained vacant at the end of Obama’s first term in office, 43 had been vacant for more than a year. Those vacancies, spread across several agencies, have the effect of nearly bringing government to a griding halt. Agencies operating under acting directors, without fully authorized leadership, effectively operate in “stand-down mode”
The lack of appointed leaders can create problems. Too many vacancies can put agencies “in stand-down, waiting for policymakers to show up,” said Terry Sullivan, a political science professor at the University of North Carolina who has studied appointments.
Acting heads of agencies “don’t make any big decisions,” said Cal Mackenzie, a professor of government at Colby College who has studied appointments since the 1970s. “Your authority is not going to be recognized in the same way a Senate-confirmed appointee is going to be recognized.”
Therein lies the problem. In a 2010 Brookings Institution paper titled “A Half-Empty Government Can’t Govern: Why Everyone Wants to Fix the Appointments Process, Why It Never Happens, and How We Can Get It Done,” E.J. Dionne and William A. Galston describe a system clogged by abuses of the Senate confirmation process, and end up weakening both the executive and legislative branches, and alter the very structure of our government.
Abuses of the confirmation process, far from strengthening the executive’s accountability to the legislative branch, instead call forth ever more creative executive actions to get around Congressional scrutiny. And that creativity has, in turn, led to an executive branch potentially weaker and less able to control and influence the departments and agencies it depends on to implement its policies.
Without any formal Constitutional change, the very structure of the American government is being altered. A confirmation process designed to safeguard Congress’ prerogatives has, in important ways, undermined them.
As we know all too well by now, Senators wield considerable power over confirmations. Individual Senators can single-handedly shut down the whole “terrible, horrible, no-good Senate confirmation process” by placing “holds” on confirmations, which amount to “silent filibusters” that prevent a vote unless the Senate can round of a two-thirds majority and squeeze in time for debate. Republicans have used such “holds,” and exploited every trick in the book to keep block President Obama’s nominees.
Most recently, Republicans on the Senate Environment and Public Works Committee refused to even show up for a vote on the nomination of Gina McCarthy to head the Environmental Protection agency. Republicans resorted to the parliamentary equivalent of holding their breath, because they claimed McCarthy failed to comply with their “very reasonable” request that she answer over 1,000 questions (a record number, which The Daily Beast’s Michael Tomasky labeled “the new McCarthyism.” ). Republicans notified Democrats 30 minutes before the hearing that they would not show up to hear the answers they complained about getting.
(McCarthy’s not alone. Treasury Secretary Jack Lew received 444 questions from senators before his confirmation; more than the last seven nominees combined.)
The Republican’s “boycott” of McCarthy Hearing was merely a tactic employed in the service of the underlying GOP agenda: making sure the EPA could not fulfill its mission. Republicans aren’t going to confirm McCarthy unless she stoops to answer their questions about the “underlying data used to justify EPA’s job-killing regulations,” and promises to force the EPA to subject everything it does to a “business-friendly analysis,” and force the agency to undertake a “whole economy” cost-benefit analysis of its rules and regulations. The result would be enough bureaucratic red tape to ensure that the EPA did almost nothing else. by insisting on conditions that no nominee to head the agency is likely to agree to, the GOP could ensure that the EPA operates in “stand-down” mode for the duration of Obama’s presidency.
The vacancies on the National Labor Relations Board are another example of how GOP obstructionist tactics are impacting government.
After President Obama took office anti-union Senators rolled out a strategy of blocking confirmation of any appointees to the NLRB to keep the agency from having a quorum so it could not operate.
In 2010 the anti-union judges on the Supreme Court ruled that the NLRB could not issue rulings without at least three confirmed members.
Anti-union Senators continued to block confirmations to the NLRB.
In January, 2012 President Obama made recess appointments to the NLRB to enable it to operate again.
In January, 2013 anti-union judges on the U.S. Court of Appeals for the D.C. Circuit ruled that recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.
(As Dave’s post points out, the courts play a huge role in this, Republican obstruction of court appointments has far-reaching implications that are better addressed in a separate post.)
The list of top-level vacancies is long and disturbing.
- The IRS has been without an appointed commissioner since last November, when Bush administration holdover Douglas Shulman resigned.
- A quarter of the senior positions at the State Department remain unfilled.
- Republicans blocked President Obama’s appointees to Election Assistance Commission — an agency charged with helping Americans vote, and which Republicans wanted to do away with in 2011.
- The Centers for Medicare & Medicaid Services hasn’t had a director since 2006, and still doesn’t since Republicans blocked a vote on Donald Berwick’s nomination. (Obama managed a recess appointment for Berwick, who has since resigned.)
- A hearing on Tom Perez’s nomination as Secretary of Labor was postponed after Republicans threatened to invoke an obscure procedural rule to stop the Senate Health, Education, Labor and Pensions Committee from meeting. The move was driven purely by objections to Perez’s “ideological background.”
- Republicans are attempting to sabotage health care reform by refusing to offer Republican nominees to the Independent Payment Advisory Board, charged with achieving savings in Medicare without sacrificing quality.
Without a presidentially-appointed, Senate confirmed director, the EPA can’t effectively fulfill its mission to “protect human health and the environment.” The NRLB cannot effectively safeguard “employees’ rights to organize and to determine whether to have unions as their bargaining representative, if it lacks enough members to operate. Health Care Reform can’t be fully implemented, and thus can’t help 32 million uninsured Americans, if the agencies that must implement it are without leaders who have the authority to set policy.
All of this is just fine with Republicans in Congress. Breaking government by keeping offices vacant, though ongoing obstruction of presidential nominees, is a tactic that serves the conservative agenda.
It’s not that the GOP is “no longer a serious partner in governing,” as a New York Times editorial put it. That which Republicans didn’t win the right to govern last November, they have resolved to make ungovernable. But Republicans aren’t just disrupting the agenda that won President Obama a second term. By keeping vital government positions vacant, they are implementing an un-mandated shrinking of government.
Conservatives have always said that government doesn’t work, when they really believe that it shouldn’t work. Given enough power to do so, once elected they set about making damn sure government can’t work. And, like I said earlier, government can’t work if there’s nobody around to run it.