What Senate Democrats Can Still Do to Promote the General Welfare

Today on TAP: Until December 31st, they can still confirm some Biden nominees to crucial regulatory and judicial posts.

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Democrats still control the Senate and will until year’s end. The impending demise of their majority status doesn’t mean they have to be brain-dead today.

As the Senate can confirm the president’s nominees to the federal bench and regulatory agencies by just a simple majority vote, rather than having to clear the 60-vote cloture hurdle, the Democrats’ simple majority of 51 still has substantial power, if all members of the caucus choose to exert it. As my colleague David Dayen noted today, President Biden has sent more than 30 nominations for federal judgeships to the Senate which that body has yet to vote on. (That list doesn’t include a new Supreme Court justice, as Associate Justice Sonia Sotomayor has made clear she has no plans to step down.)

But judgeships aren’t the only important offices that Senate Democrats can place in good hands. A host of key regulatory agency nominations are also before the Senate. Since June, the Senate has had before it Biden’s renomination of National Labor Relations Board Chair Lauren McFerran, under whose leadership the Board has established some long-overdue procedures that protect workers’ rights, including compelling companies that violate labor law while trying to thwart their employees’ unionization efforts to enter directly into bargaining with that union if a majority of those employees have signed union affiliation cards. If reconfirmed, McFerran would be the third Democratic-appointed and pro-worker member of the five-member board, enabling the Democrats to keep their board majority until 2026. (As is the custom, Biden also nominated a Republican candidate, who’d be the fifth member of the board.)

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Trump will surely fire NLRB General Counsel Jennifer Abruzzo (unless she resigns first), who’s been the most effective pro-worker federal official since New York Sen. Robert Wagner, who authored the National Labor Relations Act in 1935 (and, for good measure, the Social Security Act in the same year). But if the Senate confirms McFerran, the Democratic NLRB majority will at least be one line of defense against the Republicans’ war on unions for the next couple of years.

Other Biden nominees still before the Senate include Caroline Crenshaw, who’s been renominated to a seat on the Securities and Exchange Commission, and Christy Romero, a nominee to the Federal Deposit Insurance Corporation. Given Trump’s new love affair with cryptocurrency, and the threat that poses to our financial system, as my colleague Ryan Cooper spelled out today, oversight of that system has become even more crucial than usual, and Senate confirmations of those nominees can only help.

The eagle eyes at the Revolving Door Project, who monitor all federal appointees for conflicts of interest and assess them for their commitment to both law and the public good, have compiled an even longer list of Biden nominees awaiting Senate confirmation. They’ve also suggested that Biden still has time to renominate, and the Senate time to reconfirm, the trust-busting chair of the Federal Trade Commission, Lina Khan, whose term expired last month. And they’ve further noted that if Senate Majority Leader Chuck Schumer opts to recess the Senate for a week or two between now and December 31st, Biden can make a number of recess appointments that will last throughout 2025.

The question all this raises, then, is whether Senate Democrats will provide those 51 votes required for these various confirmations. As two of those Democrats are the soon-to-be-ex-senators Joe Manchin (WV) and Kyrsten Sinema (AZ), who in 2021 and 2022 combined to shoot down Biden’s proposals for paid sick leave, affordable child care, and a permanent Child Tax Credit—those elements of the Democrats’ agenda that would have benefited Americans immediately, rather than, as with industrial policy, years from now—it’s not clear that they’d be inclined to bolster such causes as workers’ rights and financial oversight this time around.

Still, if understandably dejected Democratic voters are looking for something constructive to do between now and the end of the year, letting Democratic senators (Chuck Schumer most particularly) know that they’d like the Senate to vote on Biden’s nominees would be a good way to let off steam, and just maybe, blunt some of the Trumpian assault about to descend on our country.

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