Friday, January 25, 2013

The Latest on Institutional Dysfunction

Yesterday, the U.S. Senate reformed its rules in a way that largely leaves the filibuster intact. Today, the D.C. Circuit Court of Appeals today ruled that President Obama's recess appointments to the National Labor Relations Board in early 2012 were unconstitutional. Taken together, these two actions are a recipe for another two to four years of institutional dysfunction in Washington.

Today's decision on recess appointments is particularly important. The president has the power under the constitution to fill positions requiring Senate confirmation for the duration of the current Congress while the Senate is in recess. The rule was designed for the eighteenth century, when the Senate would not meet for months at a time. The rule allowed the President to ensure the government continued to function while the Senate was away, without completely abrogating the Senate's right to advise and consent on Presidential appointments. In more recent times, Presidents have used the procedure to appoint controversial candidates while the Senate was on vacation. George W. Bush, for example, used this procedure to appoint John Bolton as Ambassador to the United Nations.

In the last Congress, enough vacancies occurred on the five-member National Labor Relations Board so that it could not achieve a quorum. Republicans in the Senate filibustered all of Obama's appointments, so the Board could not function. Obama threatened recess appointments to the Board. Republicans in the Senate did not like this, so they refused to allow the Senate to formally recess. So during the 2011-2012 holiday break, the Senate was gaveled into session and gaveled out of session every business day, but nothing substantive was done. The Obama administration made a finding that these pro-forma sessions were not real sessions, so Obama was free to make recess appointments.

The Court of Appeals disagreed. As a general proposition I think the court got it right. Determining whether the Senate is in session or not should be up to the Senate, not the President. The Senate plays an important role in approving presidential appointments. This is especially true when it comes to independent regulatory agencies like the NLRB and the federal courts. The President should not be able to easily circumvent this process.

This is where the relatively toothless filibuster reform comes in. Obama's recess appointments were not made because the Senate would have or did reject his appointments. They were made because the Republican minority would not allow them to come to a vote at all. The filibuster reform may change this for district court judges and lower-level appointments (that remains to be seen), but it will not change a damn thing for NLRB appointments. There are 55 Democrats in the new Senate. At least 51 of them will vote with the President on virtually every appointment he makes. The Republicans still have the power to prevent this.

This is not right. Arguments can be made as to the extent of the advise and consent authority of the Senate. Some argue that the President is entitled to his team and appointments should only be rejected in egregious cases. Some argue that the Senate is co-equal, or nearly so, in the appointment process and should extensively vet all appointments. Even if you accept the latter argument, there is no reason why a minority should be able to prevent any vote whatsoever.

A Senate minority should not have the power to completely shut down duly established governmental boards. This is exactly what the Republicans in the Senate are doing because they will not allow a vote on any new members of the NLRB because they are anti-Labor. They do this without great fanfare and largely out of view of the electorate. It is not part of the design of the Constitution and it is grossly undemocratic.

The only solution is the elimination of the filibuster as we know it. There are various plans for this afoot, but they will likely not be implemented any time soon. Harry Reid has already said no new reforms in this Congress. It is possible reforms will be passed at the beginning of the next Congress in 2015, but I am not optimistic.  

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