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Senate Confirmation Process Goes ‘Nuclear,’ but Some Burdens Remain | Commentary

Individuals nominated for executive or judicial branch positions will now have a very different road to confirmation than those in the past. While the road to confirmation has gotten much smoother for some, effective navigation is still needed to avoid the many obstacles that could force a nomination or appointment off course. Nothing the Senate achieved this past month reduces the burden placed on those going through the vetting process.

On Nov. 21, led by Majority Leader Harry Reid, a majority of the Senate utilized the “nuclear option” and effectively changed the rules for considering nominees to all executive branch positions and most judicial branch positions (except nominees to the Supreme Court).

This change, however, does not address the other long-standing problems with the confirmation process, especially for executive branch positions.

The confirmation process for executive branch nominees was part of the deal to end the filibuster standoff in 2011, when the Senate passed the legislation of a bipartisan working group — led by Sens. Charles E. Schumer, D-N.Y., and Lamar Alexander, R-Tenn. — that eliminated Senate confirmation for certain executive branch offices and streamlined the process for Senate confirmation for other nominees.

Last summer, a last-minute deal averted the nuclear option, and the Senate confirmed nominees to fill the executive branch positions at issue. That deal apparently broke down, which led Senate Democrats to go nuclear. From here on out, future nominees will now need to secure a majority of senators, rather than 60, for confirmation.

However, individuals being vetted should not expect smooth sailing just because the threshold for confirmation has effectively been reduced. The change in process will also have little impact for those appointees not subject to Senate confirmation. Anyone who is looking to join the administration in this postnuclear world should prepare now, as there may be additional resources devoted to pushing forward appointments to fill vacancies.

First, the change does nothing to affect the financial disclosure requirements that many appointees and nominees face. Strict guidelines and rigorous disclosure burdens set out by the Office of Government Ethics are still in place and — especially for State Department appointments, for which a new electronic system is being used — require careful attention. OGE Form 278 is the financial disclosure form for executive branch personnel and its purpose in part is to expose any possible conflict of interest with the appointee and the prospective position he or she is expected to fill. The information included may require the individual to divest his or her holdings. This complicated process at times deters those from seeking out a nomination or appointment, and it needs to be handled with care.

Second, for those positions subject to Senate confirmation, expect certain senators in the minority and their staff to be even more rigorous in scrutinizing information supplied to the committee, including one of the 17 different Senate committee questionnaires. These questionnaires will seek sensitive information such as the financial information sought in OGE Form 278, and, given different interpretations, it is a possibility that the same question in the end may yield different results.

A creative approach to the issue of overlapping disclosure was included in the 2011 law, which established a working group to study the problems in executive branch confirmation paperwork.

A White House working group (to which Robert Rizzi contributed) recommended a series of reforms which would ease the burden on those seeking to serve their country, including building an electronic system with a smart form, creating a “common set of core questions,” reducing the duplication between the SF-86 (the Questionnaire for National Security Positions) and OGE Form 278, and eliminating the White House Personal Data Statement. A new electronic “smart form” is being tested by the Office of Government Ethics as well.

It remains to be seen how this new era of confirmations will influence the selection and vetting processes. One thing is near certain, however, given that a 60-vote threshold is still required for cloture for all legislative matters: Expect the Senate to take up a significantly large workload of confirmations. Whether or not an appointee is subject to Senate confirmation, he or she will be well-served by learning about the process and taking steps to ensure a smooth appointment or confirmation.

Robert Rizzi is partner at Steptoe & Johnson and has counseled individuals nominated or appointed to executive and judicial branch positions in both Democratic and Republican administrations. Jason Abel is of counsel at Steptoe & Johnson and former chief counsel of the Senate Rules and Administration Committee.

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