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Obama Should Force Recess Appointment Fight

I write this column after the Senate has returned from its recess and before the president’s State of the Union message. The tension between Congress and the president is palpable, and nowhere is that more true than in the controversy over recess appointments. 

Back in January 2002, amid another controversy over recess appointments between the Democratic majority in the Senate and the Bush administration, I was quoted in an Associated Press story saying, “The flaw here is not so much in the Constitutional design as it is in the politics of confirmation and nomination. Frankly I have a significant amount of sympathy with the president.”

The same is true now, but even more so because in the past 10 years, the politics of confirmation and nomination have gotten significantly worse.

Back then, Senate Democrats shirked too frequently their responsibility to bring nominations made by the president for executive positions to the floor to get up-or-down votes. The Senate is perfectly within its constitutional rights and framework to reject a presidential nominee for whatever reasons a majority might have, but to quash nominees without even a chance at a vote, in many cases in committee, is simply wrong. And it is wrong whether the decision to keep confirmation votes from occurring is made by the Senate Majority Leader, a committee chairman or by any random Senator who exercises a hold that effectively kills a nomination.

In the past three years, individual Senate holds on nominations have soared (unfortunately, we do not have hard numbers to quantify the change, but it is evident in the backlog of nominees.) At the same time,  it is clear that Minority Leader Mitch McConnell (R-Ky.) and his colleagues have used holds and the threat of filibuster to block large numbers of nominees, including many ambassadors, releasing some here and there only after intense negotiation with the president. That process may be typical — but there is a twist that is new, what Tom Mann has coined “the new nullification.”

Senate Republicans made it clear that they would block via filibuster any nominee to the Consumer Financial Protection Bureau, rendering the new agency nearly impotent, because they did not like the law that created it. If Senators don’t like a law, they ought to try to change it — but keeping the president from fulfilling his constitutional duty to see that the laws are faithfully executed is not acceptable behavior.

 At the same time, Senate Republicans used a similar tactic to keep the National Labor Relations Board from filling vacancies, leaving it without a required quorum to do business, all to thwart the clear legal responsibility of the NLRB.

There were (and are) enough votes in the Senate to confirm Richard Cordray as head of the CFPB and to confirm all the nominees from both parties to the NLRB.

But the House — which has zero role under the Constitution in the confirmation process — intervened to keep Congress from a formal recess. That led President Barack Obama to adopt a plan initially crafted — but never implemented — by Bush administration Justice Department and White House officials to declare the Senate in recess when it held pro forma sessions but self-evidently was in hiatus, and to choose recess appointments to fulfill his constitutional executive duties.

Congressional Republicans understandably went ballistic — although it was more than amusing to watch lawmakers denounce the president for his perfidy and then say they would take care of it — when they got back from their recess!

I wish we were not in this place. It would be so much better if the Senate would adopt reforms, including those commendably recommended by Sens. Susan Collins (R-Maine) and Joe Lieberman (I-Conn.), among others, to streamline the nomination and confirmation process. It would be even better if all nominees were guaranteed up-or-down votes after specified periods of time following their formal nomination, limiting the power of holds and filibuster threats. But we are where we are, and I think the president acted as he had to, given the efforts by his adversaries to cripple legitimate laws. 

It would be nice to have a truce now between the White House and Senate Republicans on the swath of nominations still pending, finding a balance that respects the executive’s right to have his nominees in place and the Senate’s legitimate advise and consent role. But it is far more likely that McConnell and his colleagues will now protest by blocking all pending nominees.

If that is the case, and if I were the president, I would think about one other area to employ the same recess appointment strategy: Make five recess appointments to the Federal Election Commission to fill seats now held by commissioners (three Democrats and two Republicans) whose terms have expired.  McConnell has been delighted to keep the status quo on the FEC because the three past GOP appointees have acted regularly to ignore the law and court rulings to create a lawless environment in the campaign arena.

McConnell has made it clear that nullifying all existing campaign finance laws and regulations is a top priority of his, and he would go to DEFCON I if Obama went ahead and picked FEC commissioners he did not OK.

It is time for the president to defy McConnell — and his own party hacks as well — to pick five individuals who will uphold the law and the court when it comes to disclosure and true independence of super PACs, and not follow their own ideology. That one action would do more to improve American politics and governance this year than any possible set of reforms right now. And let’s be frank: Would McConnell do anything to spite or damage the president that he would not do now if he could get away with it?

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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