Ask the Democratic senators how they spent their summer vacations, and some of them will mention returning to the Capitol and banging the gavel in an empty Senate chamber. For example, during the Memorial Day recess, Sen. Sherrod Brown of Ohio presided over a brief (lasting mere seconds) and lonely (almost no one else was present) "pro forma" session of the United States Senate, while most of his colleagues were back in their home state.
These pro forma sessions, used by the current Senate since the Thanksgiving recess of 2007, have prevented the president from exercising his constitutional authority to make appointments during congressional recess that would otherwise require Senate confirmation. Although derided as a childish stunt by some editorial pages, the use of pro forma sessions to block the recess appointment of nominees whom Senate leaders were unwilling to confirm was more than empty symbolism. Preventing the seating of certain nominees, particularly to independent agencies, was a clever strategy that may have prevented the current administration, now in its waning days, from having had an even greater impact on federal policy than it actually did.
Recess appointments can be made when the Senate is out of session continuously for more than three days -- pro forma sessions prevent a Senate recess from officially lasting that long. Recess appointees remain in office for roughly one to two years or until the nominee is confirmed or withdrawn. President Bush drew the ire of Senate leaders -- helping to precipitate the Senate's use of pro forma sessions -- when he appointed Swift-boat campaign donor Sam Fox to an ambassadorship during the spring recess of 2007.
Majority Leader Harry Reid has used pro forma sessions to block recess appointments to a variety of offices, including high-ranking offices within Cabinet departments like the head of the Department of Justice's Office of Legal Counsel. Preventing the seating of new Cabinet officials in the Department of Justice and other departments can send an important message. But, practically speaking, the administration will continue to have full control over Cabinet offices that go unfilled, because acting officials, answerable to the president, will still perform their departments' duties.
But the Senate's blocking of administration nominees has probably had the most significant influence on independent agencies, where the president lacks the authority to appoint acting officials and which are often granted sweeping authority by Congress, allowing their appointees to exert tremendous policy-making influence.
Unlike Cabinet departments, independent agencies are typically given discretion by Congress to implement a broad statutory mandate in an area too complex or fluid for Congress to exhaustively cover in the legislative text and which requires nonpolitical judgment and technical expertise. The agencies make and enforce rules to effectuate general principles set forth by Congress.
Because of the unusually broad discretion these agencies are given, Congress places greater limits on presidential control over them, unlike Cabinet departments for which legislative mandates are typically better-defined. Congress attempts to insulate independent agencies from political engineering by giving agency heads fixed terms and limiting the president's ability to remove them once they are appointed.
Dubbed a "fourth branch" of government by former Supreme Court Justice Robert Jackson, because they are charged with a mixture of legislating, interpreting statutes, and enforcing the law, without truly being under the control of any of the three branches, independent agencies have been the subject of heated debate among legal scholars, some of whom dispute their constitutionality, for years. (Those who espouse the unitary-executive theory believe that these agencies should be under the ongoing direct control of the president just like Cabinet departments.)
One might think that, precisely because independent agency heads, once confirmed, are outside the control of the president, Congress need not be too concerned about confirming the president's nominees to these positions. But although historically independent agencies have drawn fairly uncontroversial bipartisan nominees who have acted independently, since the Reagan administration, nominees have largely been ideological stand-ins for the president. Research in a Boston University Law Review article suggests that presidents now "have more influence on independent-agency policy-making than ever before."
Given the recent partisan character of many agency nominees, Senate rejection of a nominee to an independent agency can prevent an administration from placing its imprint on an area of law, because the president cannot appoint an acting head or otherwise influence the agency's policies other than by confirmation or recess appointment of his nominees. Moreover, independent agencies often have wide-reaching authority, and their policy-making cannot be immediately reversed by a new administration. Instead, changes must wait for new nominees to be confirmed and for the slow process of altering agency policies to run its course.
The current president has continued the trend of politicizing independent agencies, which began under the Reagan White House. In the case of some agencies, this administration appears to have solved the whole "fourth branch" conundrum -- which rankles adherents to the unitary-executive theory -- by seeking to appoint agency leaders who, in spite of nominal independence, march in reliable lockstep with the president on most issues.
One of the outgoing administration's candidates, Hans von Spakovsky, a nominee to the Federal Election Commission whose recess appointment Sen. Reid specifically hoped to prevent, was accused by opponents of allowing political considerations to guide his decisions while overseeing the voting section at the Department of Justice -- and thus to be uniquely ill-suited to administer campaign-finance laws in an election year. (Von Spakovsky withdrew his nomination earlier this year following continued resistance within the Senate.)
Given the power invested in agencies and their heads, even recess appointments, which last a relatively short period, can profoundly alter public policy. In the case of the National Labor Relations Board, an agency roiled by partisanship for decades, the recess appointment of anti-union lawyer Peter Kirsanow in early 2006 enabled a 3-to-2 majority of Republican appointees to unleash an onslaught of decisions in September 2007 that reversed long-standing NLRB policy in dramatic ways.
Now however, with some board-member terms having expired and only two of five seats filled, the NLRB is unable to issue any groundbreaking new decisions -- and, for the labor movement, it is better to have a hobbled agency than one hostile to unions.
It will take some time before the damage can be repaired, even if more union-friendly NLRB appointments are made in the future. Nominees like Kirsanow were not mainstream management-side labor lawyers like Republican presidents had historically appointed -- instead, this administration has chosen them because they had an axe to grind against unions.
With the Democrats back in control these past two years, congressional oversight of the administration was very much in vogue on the Hill. Oversight hearings have served a valuable purpose in bringing executive-branch misconduct to light. But congressional influence (particularly for an administration that does not seem particularly attuned to congressional input or ashamed of congressional criticism) was perhaps most strongly felt when the Senate blocked independent agency appointments who might otherwise have had a profound impact on our public policy.
