There is nothing particularly objectionable about the Small Business Administration, and there is no reason that it shouldn't have a chief counsel of advocacy. But by the time Winslow Sargeant took office via recess appointment, the office had been empty for more than a year. Likewise, the Department of Justice needs a director for its Office for Victims of Crime, and though President Barack Obama nominated Beatrice Hanson last December, the Senate has yet to move her nomination out of committee.
Progressives have been vocal about the Senate's obstruction of legislation and, recently, judicial nominees. But few people have noticed the Senate's obstruction of the executive branch and it's ability to function effectively. Indeed, at the 18-month mark of Obama's presidency -- this summer -- more than 20 percent of executive-branch positions were unfilled. At the moment, there are 177 pending nominations. Some, like Sargeant's, have been filled by recess appointment. But the vast majority have been left to languish.
This isn't new. Over the last two decades, the appointments process has become a wonky version of the beast with five heads; presidents are responsible for filling thousands of positions, nominees are forced to endure endless background checks and intense personal scrutiny, and appointees face the prospect of needless, partisan obstruction in the Senate. The result is an unwieldy process that discourages potential nominees from serving the government and keeps the president from staffing his administration with the best possible people.
Political scientists, not known for their way with words, have found pithy ways to describe the status quo. G. Calvin Mackenzie calls it "nasty and brutish without being short," and Brookings Institute scholar Paul Light says that it is "clogged with bureaucratic sediment and filled with distrust." Both descriptions come from a new Brookings report, by William Galston and E.J Dionne, which aims to provide lawmakers with the tools necessary to fix the appointments process. Unfortunately, their report is marred by a refusal to think through the implications of our polarized, partisan politics.
Galston and Dionne offer two approaches: "low-hanging fruit" and "heavy lifting." The first are practices that could be implemented by presidential candidates and president-elects, without any new legislation or changes from the Senate. For candidates, they want to encourage the creation of British-style "shadow governments." Instead of waiting for Election Day to begin assembling a Cabinet, they want candidates to plan ahead and announce their picks for major positions before the election. To that end, they want to move the election schedule forward, so that candidates begin their campaigns in the spring and remove the stigma from preplanning or "measuring the drapes," as they call it. They recommend an earlier election season -- beginning in the spring, instead of the summer. What's more, they want candidates to establish a clear process for the transition and to give a single person complete control over the whole enterprise.
As for the outgoing administration, Galston and Dionne want tight coordination between it and the incoming president. By their lights, President George W. Bush managed an excellent transition, and in their report, they hold up his effort as an epitome. For the Bush administration -- surprisingly, given its relentless partisanship -- it made no difference that Barack Obama won the election and not John McCain; the idea was to make the process as smooth as possible, regardless of who wins the election. Once in office, Galston and Dionne recommend presidents streamline the vetting process, through executive orders and a few commonsense measures, like simplifying the cumbersome personal-data statement and making background checks less comprehensive for previously vetted nominees.
If the "low-hanging fruit" is entirely focused in the executive branch, then the "heavy lifting" takes aim at the Senate, and the suggested reforms will be familiar to anyone who watched the constant obstruction of the Republican Party in the 111th Congress. At the top of the wish list is filibuster reform, followed by an end to secret holds, mandatory discharge procedures for nominees -- a nomination is automatically eligible for full Senate consideration after a set period of time -- and a reduction in the number of Senate confirmable positions (in exchange for term limits on some executive-branch appointees).
Since these problems were identified by a bipartisan committee, Galston and Dionne believe these reforms are achievable. And that's where the report goes off the rails. Both men are fully aware that the country has become more polarized and the parties have become more ideologically coherent, but they haven't really internalized the consequences. They desperately want bipartisanship -- or in Dionne's own words, "nonpartisanship" -- but they haven't grasped the fact that institutional change is as political as everything else in our partisan world.
In other words, you can't avoid the zero-sum nature of politics. The minority party will never disarm itself if it means advantaging the opposing president. For the sake of governance, it makes sense to streamline the appointments process, but from the perspective of a Senate partisan, it's completely nonsensical. Why would you do anything to empower the opposition president -- or any president -- when the status quo affords you the ability to obstruct and force concessions?
Recent history suggests that major reforms come by way of partisanship. The last attempt at reforming the Senate came in 2005, when Majority Leader Bill Frist threatened to end the filibuster on judicial nominees after Democrats refused to consider a handful of President Bush's nominees for the lower courts. In 1975, a Democratic-controlled Senate revised rules so that three-fifths of senators could break a filibuster and limit debate.
Despite this, Galston and Dionne want reform to be a bipartisan affair, and the report's timing reflects this; the 112th Congress is soon to begin, and with the potential for a rules change, their paper is offered in hope that reforms "might, at long last, be taken seriously by the president and by Congress."
On Tuesday, the same day Galston and Dionne released their report, 15 progressive organizations -- including the Sierra Club, SEIU, Common Cause, and the AFL-CIO -- issued a letter calling for filibuster reform. Likewise, Sens. Tom Udall and Jeff Merkley plan to introduce reform plans at the start of the next Congress, where a bare majority can vote to change Senate rules.
Galston and Dionne are right to call attention to our dysfunctional appointments process and the Senate's role in furthering the madness. But the bipartisan consensus over policy is unlikely to become a political consensus over action. Instead of hoping for bipartisanship, Galston and Dionne should throw their efforts behind the growing Democratic push for Senate reform. Partisanship can be ugly, but when it comes to actual reform, it's an excellent vehicle for success.
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