Earlier this month, President Obama used his recess-appointment power to install Richard Cordray as the head of the Consumer Financial Protection Bureau, and to place three members on the National Labor Relations Board.
It should not have come to this. The Senate is supposed to “advise and consent” on all presidential nominees. But in recent years, senators have made a mockery of the nomination process, refusing to vote on many presidential appointees and rejecting others for reasons that have nothing to do with their qualifications.
Despite howls of outrage from senators about abuses of presidential power and constitutional controversy among legal experts, one should not be shocked by what the president did. Faced with a new consumer bureau that had been leaderless for seven months and a labor board that didn’t even have enough members to form a quorum, the president concluded that he had little choice.
We’ve been down this road many times before. As of late 2011, more than 200 presidentially appointed positions remained unfilled, reflecting the new normal that old Senate rules — combined with increased partisanship — make even the most routine confirmation vote a dogfight.
Although Republican senators were clearly the obstructionists in this case, the problem crosses party lines. During former President George W. Bush’s administration, Democrats also embraced filibusters and legislative trickery to thwart the confirmation of his nominees.
Needless to say, an incredibly partisan nomination process — focused on exploiting loopholes in the Senate rulebook — was not what the Founders meant by “advise and consent.” Writing in the Federalist Papers, Alexander Hamilton hoped that when reviewing presidential appointees, the Senate would avoid conflicts of interest — and never reject a nominee “where there were not special and strong reasons for the refusal.”
Hamilton’s hopes have been dashed. In some cases, a minority of senators band together to filibuster consideration of a nominee. In others, a single senator exercising a “hold” can derail an appointment. In one notorious example from 2010, one senator placed an anonymous hold on more than 70 nominations in order to gain political leverage and secure more federal funding for his state.
These nomination fights are often portrayed in the media purely as power struggles between the president and the Senate. But they also leave key government agencies undermanned at a time when our nation faces significant challenges.
For example, the directorship of the Federal Emergency Management Agency (FEMA) was still unfilled five months into President Obama’s administration. The sheer number of federal judgeships blocked has prompted legal reform groups to declare a “vacancy emergency” in our courts. And at Treasury — where many key officials remain unconfirmed — Secretary Timothy Geithner said that Senate obstruction is impeding the department’s ability to monitor the financial system.
It seems that preventing the critical business of our government has become business as usual for Congress.
But there is a solution to this problem. No Labels — the group of Democrats, Republicans and independents that we co-founded to help make our government work — has recently released a proposal to fix the presidential nomination process.
The No Labels proposal is simple: All presidential nominations should be confirmed or rejected within 90 days of a nomination with all forms and background checks completed being received by the Senate. This time frame includes both committee and floor action. If a nominee’s name is not put to an up-or-down vote within 90 days, the nominee would be confirmed by default.
The proposal doesn’t require a new law. It simply requires a change of Senate rules, which can be adopted the day the 113th Congress convenes in January 2013.
The No Labels “Up-or-Down Vote on Presidential Appointments” proposal is just one of a dozen proposals featured in our Make Congress Work! action plan. These proposals — ranging from fixing the filibuster to withholding congressional pay if budgets aren’t passed on time — can have an immediate, positive impact on solving America’s national challenges.
Although the American people will be justifiably focused on the 2012 elections, these elections will be no panacea. If we don’t fix the outdated rules, procedures and traditions that govern Congress and make it impossible for anything to get done, we’ll be in for more polarization and gridlock when the next Congress is seated in 2013.
The two of us might not agree on who should be representing us in Congress. But we’re in total agreement that the place itself needs to be fixed, and the broken presidential nomination process is a great place to start.
Galston and McKinnon are co-founders of No Labels. Galston is a senior fellow in governance studies at the Brookings Institution. McKinnon served as senior adviser to former President George W. Bush.