Senate to Stay in Pro Forma Session Over Break After Final Talks on Nominees Break Down

Posted December 19, 2007 at 5:47pm

Following hours of intense talks that ended in a standoff, Senate Majority Leader Harry Reid (D-Nev.) decided late Wednesday to move several dozen nominees but still keep the Senate in business over the monthlong holiday break to block President Bush from making any controversial recess appointments while Senators are out of town.

Reid’s decision came after an afternoon of private negotiations with the White House to try to craft a far-reaching deal didn’t pan out. The two sides had tried to broker an agreement under which the Senate would agree to usher through scores of outstanding executive branch nominations — including some Democrats favored — so long as Bush opted against installing any incendiary picks in Senators’ four-week absence.

The Senate moved Wednesday night to approve by voice vote 60 Republican picks for executive branch posts and eight Democratic picks.

But the two sides didn’t see completely eye to eye, as Bush pushed to include in the deal Steven Bradbury’s nomination to be assistant counsel to the attorney general. Bradbury is unpopular with Democrats for his controversial role in formulating the administration’s position on torture.

“I tried very hard to work with the president but he indicated he would still use the recess … to appoint objectionable nominees,” Reid said on the Senate floor Wednesday night. “My only solution is to end this and call a pro forma session again.”

As such, Reid will stick to his earlier plan to hold the Senate in a series of pro forma, or nonvoting, sessions about every third day until the chamber returns on Jan. 22. The move keeps the Senate technically operating and thus prevents Bush from making the recess appointments.

In a brief interview earlier Wednesday evening, Reid expressed frustration with the lack of movement toward a deal but said he remained optimistic that the two sides might still meet in the middle. Asked whether he thought it could come together before the end of the day, Reid said: “That’s my hope.”

“We are continuing to negotiate,” Reid said at the time. “I’ve spoken three times today with [White House Chief of Staff] Josh Bolten.”

Democrats have been wary of going into a recess since their April break when the Bush administration opted to fill three controversial executive vacancies while Senators were out of town. Among those installed was prominent Republican donor Sam Fox as ambassador to Belgium.

The hangover from the Fox appointment prompted Reid and the White House to broker a recess appointment truce before heading into the monthlong August break. The two sides agreed then to push through more than 70 outstanding nominees in exchange for a recess-appointment-free period.

But such agreements have been elusive in recent months, including in November when the two sides attempted but failed to reach a recess deal before Senators went home for the two-week Thanksgiving holiday. During that period, Reid held the pro forma sessions and charged several Democratic Senators with the duty of gaveling the chamber into business — albeit briefly — every few days.

Virginia Sen. Jim Webb (D) will gavel the Senate into at least four of the pro forma sessions during the upcoming recess.

Until late Wednesday, it appeared as if Reid and administration officials were on the cusp of finding some common ground, with sources speculating that as many as dozens of nominees could win voice approval before the Majority Leader adjourned the chamber for the year. The talks included some of Reid’s personal picks for some key commissions, like extending the nominations of Jonathan Adelstein — a former aide to then-Sen. Tom Daschle (D-S.D.) — at the Federal Communications Commission, Stuart Ishimaru at the Equal Employment Opportunity Commission and Greg Jaczko at the Nuclear Regulatory Commission. Negotiations to fill soon-to-be-vacated Federal Election Commission seats also broke down Wednesday, likely leaving four commissioners out of work in the coming weeks — and the elections regulator largely toothless.

Senate Minority Leader Mitch McConnell (R-Ky.) appeared to stick to his guns on GOP nominee Hans von Spakovsky, a former Justice Department lawyer who allegedly pushed controversial voting policies under White House Justice Department appointee Bradley Schlozman.

Reiterating what he has said for months, the Minority Leader suggested to reporters early in the day that von Spakvosky’s nomination was not up for negotiation.

“The Democrats have picked their nominees and we’ve picked ours. What we have here — once again it happened with one of our nominees toward the end of the Clinton administration — the Democrats trying to veto one of our nominees,” McConnell said. “That isn’t going to happen. They’re all four going to go together or none of them will be approved.”

Reid attempted to cut a deal with McConnell, dicing up the block of nominations and holding a separate vote on each nominee. But by mid-evening Wednesday, both sides remained at an impasse: Reid wanted a 51-vote majority to confirm each of the four nominees; McConnell demanded a 51-vote majority to OK von Spakovsky’s nomination, but a 60 vote margin for the remaining three.

Democratic Sens. John Kerry (Mass.), Russ Feingold (Wis.), Sherrod Brown (Ohio) and presidential nominee Barack Obama (Ill.) all have placed holds on von Spakovsky’s nomination.

Von Spakovsky’s nomination was tied to those of fellow Republican David Mason, the panel’s current vice-chairman, and Democrats Robert Lenhard, a former union lawyer and current FEC chairman, and Steven Walther, Reid’s former lawyer.

Without a deal, only two commissioners — Mason, whose tenure at the agency predates term limits, and Democrat Ellen Weintraub, who is term-limited but may keep her job until her replacement is named — may remain on the payroll at the start of the next session. That would be two commissioners short of a necessary quorum necessary to fine and provide guidance to candidates and political committees.

Matthew Murray contributed to this report.