Using the Advice & Consent Clause with the Filibuster to Impede the Function of Government

We’re witnessing what I believe is a dangerous new form of political gamesmanship being played out in Washington, one that could, if allowed to continue unchecked, truly undermine the way that our government is supposed to function.

First, let’s remind ourselves of what the Constitution says:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and 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, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

(Article II, Section 2, ¶¶ 2-3.) Fairly straightforward, no? Well, it used to be. But not anymore.

Traditionally, Presidents have been given great deference when it comes to nominating people to serve in their cabinets, in other appointed positions, and on the courts. That isn’t to say that the Senate didn’t “grill” nominees, but they were almost always approved and in a reasonably timely manner. However, in the last few decades, that has begun to change. Nominations, especially judicial nominations, have been subjected to a much higher degree of scrutiny and some have even been rejected (Robert Bork, of course, being the classic example). And the nomination process has often been subject to very lengthy delay. Similarly, when it comes to cabinet and similar appointments, Presidents seem to be given less deference by the Senate than they traditionally enjoyed. I’m not sure if that was what the Founders intended when they wrote this portion of the Constitution, but the Senate does have the right to consent to an appointment, so that’s the situation we have to deal with.

There are two problems that are making this situation much worse and, I think, taking it into dangerous territory that threatens the functioning of our government, especially if it becomes a precedential way of doing things. What am I talking about? Well first, it’s worth noting that traditionally, opposition to a presidential appointment has been on the basis of some problem with the nominee or the nominee’s positions on certain issues. And I guess that’s fair. After all, the Constitution provides for Senatorial consent, so a President facing a Senate controlled by the other party must make some accommodations in the nominees presented. On the other hand, should a President of one party be compelled to appoint only members of the opposition party if the Senate is controlled by the opposition party?

Similarly, should one party be able to completely stop presidential appointments? More critically, should the minority party be able to completely stop presidential appointments? And should the minority party be completely able to stop presidential appointments when the opposition to the nominee has nothing to do with the nominee?

Which, as you’ve probably guessed, brings us to filibusters and recess appointments.

Before even discussing the filibuster, it’s worth calling attention to a little-known provision of the Senate’s rules that permits a single senator to anonymously put a “hold” on a nomination and prevent that nomination from coming to the floor for a vote. Like the filibuster, a hold is subject to a 60-vote cloture motion. It’s like a secret filibuster. But query whether the intent of the advice and consent provision of the Constitution really contemplated a tool by which a single senator could anonymously derail a nomination unless a supermajority voted to end the hold. I don’t think so.

Ezra Klein, writing for The Washington Post'’s Wongblog in May 2012 looked at the use and constitutionality of the filibuster. He offered the following chart and analysis (quoting, in part, from The Senate Filibuster: The Politics of Obstruction by Emmet J. Bondurant):

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.

And even then, filibusters were a rare annoyance. Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

…

In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That majority vote played into another principle, as well: the “finely wrought” compromise over proper representation. At the time of the country’s founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with the filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop a majority in the Senate. “The supermajority vote requirement,” Bondurant argues, thus “upsets the Great Compromise’s carefully crafted balance between the large states and the small states.”

Just think about that for a minute. One senator can put a hold on a nomination anonymously or filibuster a nomination and the senators representing just 21 of the 50 states (and only 11% of the population) can block the majority from ending the hold or filibuster. Is that what the Founding Fathers contemplated when they drafted the “advise and consent” clause? Remember, they specifically rejected proposals to require supermajorities in all but a few limited instances.

But, unfortunately, the situation is even worse that that.

Remember the part of the Constitution quoted above concerning recess appointments? The very concept of that provision was to give the President a way to fill vacancies in federal offices when the Senate refused to act. The appointment is temporary, lasting only until the end of the current session of Congress. However, in recent years, senators in the minority party have recognized the “danger” of allowing the Senate to recess, for if the Senate is in recess, then a President can get around the minority’s holds and filibusters, even if only for a temporary appointment. The solution that the minority parties devised? Simple: Don’t allow the Senate to recess, thus stripping the President of his constitutional authority to make recess appointments. How do you keep the Senate from recessing, even if everyone has gone home to be with their families or be with their constituents? Simple. Just have one senator show up every three days, call the empty Senate chamber to order, and then immediately adjourn for three days without conducting any real business. That way, even though the Senate isn’t actually doing anything and even though only one senator is actually present, there is the fiction that the body isn’t really in recess. What do you think? Did the Founding Fathers intend for a power specifically given to the President to be nullified by a parliamentary trick?

And thus Presidential appointments remain in limbo. Worse still, a federal court just ruled that several of President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional because the Senate wasn’t really in recess (due to these pro forma sessions). While some on the right crow about how President Obama was “caught” or acted contrary to the Constitution, they completely ignore the political games being played to create the need for the recess appointments or the machinations undertaken to try to prohibit the recess appointments. More importantly, they also ignore the fact that the ruling casts into doubt all recess appointments made over the last hundred years or so and with them the rulings, decisions, and actions by those thus appointed. That part of the ruling isn’t limited to Democratic recess appointments. By way of simple and recent example, President Bush’s controversial appointment of John Bolton to be the ambassador to the United National was a recess appointment (as was the appointment by President George H.W. Bush of Alan Greenspan to the Federal Reserve Board).

Moreover, with regard to those recess appointments thrown out by the Court, it’s worth noting that they were to the NLRB which cannot function without 5 members. With the 3 recess appointments nullified, not only are a year’s worth of NLRB decisions nullified, by the agency reverts to a status of limbo in which it cannot function at all because Republicans have now spent literally years blocking a Democratic President from making appointments to the agency.

Which brings me to the final problem.

I’ve already discussed how Presidents now seem to get less deference from the Senate with their nominations. And that may be OK. But at least the opposition to a nominee has traditionally been about that nominee. Democrats (and some Republicans) thought Robert Bork’s judicial views were too extreme. John Tower was rejected as Secretary of Defense because of allegations of alcoholism and womanizing (do people still use that phrase?).

So let’s turn our attention to the nomination of Richard Cordray to head the Consumer Financial Protection Bureau. He was one of the people given a recess appointment by President Obama. Let me quote from my January 2012 post Republicans Claim President Obama Arrogantly Circumvents American People … After Republicans Refuse to Consider Any Action Unless They Get Their Way First in which I first touched on these issues (typos corrected):

The Senate didn’t reject Cordray because of his views. Republican Senators didn’t really object to Cordray. Instead, Republicans objected to the establishment of the Consumer Financial Protection Bureau. They objected to the fact that, like other federal agencies, it had a chair (instead of a board of directors). And they objected to it having an budget that did not require the Bureau to come back to Congress for new funding each year. You see, Republicans refused to allow Cordray’s nomination to come to a vote unless President Obama agreed to change the structure of the Consumer Financial Protection Bureau in ways that would weaken the nascent organization. As CNN noted:

[W]ithout a director, for example, the bureau can't regulate financial products from non-banks, including student loan providers, debt collectors, payday lenders and check cashers.

Without a chief, the bureau also can't regulate mortgage originators and servicers, which played a big role in the financial crisis by providing subprime mortgages to families who couldn't afford them.

Just in case you think that I’m being a bit too hyperbolic in my explanation of Republican objections, here’s what Speaker Boehner had to say:

This position had not been filled for one reason: The agency it heads is bad for jobs and bad for the economy. It’s clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward.

Or there is this statement from Sen. McConnell following the recess appointment (emphasis added):

Earlier this year, 44 of my Senate Republican colleagues and I served notice that we will not confirm any nominee as director, regardless of party, until structural changes are made to make the bureau accountable to the American people — and more transparent.

You see? Nothing about Cordray at all. The objection is to the Bureau that Congress created in 2010. Republicans lost that debate but now they’re trying to hold up the President’s right to appoint a nominee, not because they object to the nominee, but because they object to the structure and purpose of the Bureau. Go back to Sen. McConnell’s claim that the recess appointment has “arrogantly circumvented the American people”. I’d argue that refusing to allow a vote, not because of any issue with the nominee, but because Republicans don’t like the nature of the Consumer Financial Protection Bureau is the real case of “arrogantly circumvent[ing] the American people”.

President Obama appointed Cordray via recess appointment, but that appointment is now in question following the recent court decision (which only dealt with the NLRB appointments). Nevertheless, we have to put all of the pieces together to see the scenario being played out and the danger it poses for our way of governing. Republicans are abusing holds and filibusters and using ludicrous pro forma sessions to prevent the President from appointing people to fill offices, not because Republicans object to the person, but because they object to the very office in question or to another policy of the administration.

We’re seeing this play out again right now, when several senators have suggested that they may filibuster the appointments of Chuck Hagel as Secretary of Defense or John Brennan as head of the CIA, not because of direct opposition to those men, but because the senators don’t approve of how the administration responded to questions about the terrorist attack in Benghazi. For example, appearing on CBS’ Face the Nation yesterday, South Carolina Sen. Lindsey Graham said:

“I don’t think we should allow Brennan to go forward for the CIA directorship, Hagel to be confirmed to Secretary of Defense until the White House gives us an accounting,” said Graham. “Did the president ever pick up the phone and call anyone in the Libyan government to help these folks? What did the president do?”

…

“Face the Nation” host Bob Schieffer pressed Graham on his plan, asking, “You are saying that you are going to block the nominations, you’re going to block them from coming to a vote, until you get an answer to this?”

“Yes,” Graham replied.

As an aside, and perhaps I’m mistaken, but I don’t recall Sen. Graham blocking any of President Bush’s appointments waiting to learn how the administration mishandled the intelligence predating 9/11 or regarding Iraq’s non-existent weapons of mass destruction. How many lives were involved in those matters? But Graham will block the nominees for Secretary of Defense and head of the CIA because of four deaths in a terrorist attack in Benghazi? Nope. No politics on display there. Move along. But before you move along, query further whether blocking the administration from having a Secretary of Defense and CIA Director might actually endanger or weaken our defense and intelligence systems?

Seriously, though, ask yourself whether we really want a system in which a single anonymous senator or even a minority of the Senate can almost permanently block a President from appointing people to offices especially when the opposition has nothing to do with the person being nominated and when the inability to have the nomination confirmed may render a federal agency (such as the NLRB or CFPB) completely unable to function? Is our system really designed to allow a minority of senators to prevent the government from functioning? I don’t think so.

And just think of the precedent that this could set. What happens when the minority decides that they will reject nominees unless the President appoints only those people that the minority wants appointed? What happens when the minority blocks appointments so long that entire agencies cease to function (the Bureau of Alcohol Tobacco and Firearms hasn’t had a permanent director in over six years, largely because Senate Republicans have refused to consider appointments to that post because they don’t like that division of the Justice Department). Can you imagine the screams we’d be hearing from Fox News is Senate Democrats, for example, refused to consider a President Romney’s appointment to head the Treasury unless and until President Romney released his tax returns, or refused to consider an appointment to the Secretary for the Interior unless the Romney administration agreed to stop the Keystone XL Pipleline? We’d hear all sorts of cries about how the Senate was getting in the way of democracy and we’d hear the refrain that “elections matter”.

Well, elections do matter. And right now, the minority in the Senate (where you’ll recall, Republicans lost seats), is doing what they can to stymie the will of the American electorate. This is a dangerous precedent for our democracy.