J. Scott Applewhite/AP Photo
Sen. Pat Toomey (R-PA), the ranking member of the Senate Banking Committee, tells reporters that Republicans will boycott a vote scheduled on confirming President Biden’s nominees to the Federal Reserve, February 15, 2022, outside a GOP strategy meeting at the Capitol in Washington.
An escalation in Republican obstruction of executive branch nominees potentially threatens the ability to get any of the Biden administration’s vacant positions filled, unless Democrats mount a drive to change Senate rules or recess-appoint the nominees.
The tactic involves Republicans boycotting committee markups, a typically routine procedure in which legislative action gets voted on and nominations get advanced. Because of complicated Senate rules, this makes it effectively impossible to get nominees a vote on the Senate floor, even if the nominee has the 50 Senate votes necessary to be confirmed.
Sen. Pat Toomey (R-PA) announced on Tuesday that his party would boycott a scheduled markup for five Federal Reserve Board of Governors nominees, including the chair Jerome Powell, who has been renominated for a second term, and the new vice chair Lael Brainard, who currently sits on the Board. Sandra Thompson, who has been nominated for the chair of the Federal Housing Finance Agency, was also scheduled for a vote at the markup.
Powell, Brainard, and Thompson are not the targets of the maneuver. Toomey and the Republicans want to block Sarah Bloom Raskin, the wife of Rep. Jamie Raskin (D-MD) and someone who is seen as a strong financial regulator, from becoming the Fed’s vice chair for financial supervision, the chief regulatory-policy position at the central bank.
Raskin has been confirmed twice in the Senate before, including to a previous role as a Federal Reserve governor, with unanimous support. “Instead of showing up to work to do their job, Republicans have walked out on the American people,” Senate Banking Committee chair Sherrod Brown (D-OH) said in furious opening remarks at the markup, where all the Republicans’ chairs were empty.
The ostensible reason for the boycott is Republican claims that they have not received full information from Raskin, particularly about her alleged role in helping a fintech company lobby a regional Federal Reserve bank for access to the central bank’s payment system. Brown rebutted this, noting that Raskin had answered 180 questions from the committee’s Republicans in writing, and that her responses were sufficient.
“Ms. Bloom Raskin has been the subject of an unrelenting smear campaign” of “malicious character assassination and innuendo, without offering a shred of evidence,” Brown said.
The committee held an unofficial roll call vote on the nominees. All 12 Democrats, including Sen. Kyrsten Sinema (D-AZ), who sits on the committee, voted the nominees to be approved for a full Senate vote (save for one dissenting vote on Powell from Sen. Elizabeth Warren of Massachusetts). But the vote was unofficial because, without any Republicans present, the committee did not have a quorum to move into executive session. Committee rules in general require that at least one member of the opposition party be present to provide a quorum.
We have seen several instances during the power-sharing agreement in a 50-50 Senate when nominees have come out of committee with a tie. In that case, the Senate can vote to discharge that nominee from committee by a majority vote. However, under the Senate standing rules, a majority of the committee must be physically present to vote on pending nominations in order for them to get a vote on the floor. So the discharge process is not available; as long as the standing rules require a majority present, nominees would remain stuck.
“In today’s 50-50 Senate, Democrats are boxed in by the GOP boycott,” said Sarah Binder, a professor at George Washington University and an expert on Senate rules.
Democrats could do a traditional discharge to get a nominee to the floor, but that would require 60 votes under the current rules, and if Republicans are boycotting committee hearings, they are exceedingly unlikely to give the necessary votes to get a nominee out.
The bottom line is that under the current Senate rules, Republicans committed to obstruction can indefinitely block nominees they don’t like. And we know this works because it already has.
LAST YEAR, REPUBLICANS boycotted five separate committee markups for the nomination of Dilawar Syed to become the top deputy at the Small Business Administration (SBA). The reasons for this obstruction shifted over time, from Syed’s service on the board of the Muslim organizing group Emgage, which Republicans consider antisemitic, to the performance of the SBA during the pandemic.
Whatever the reason, the tactic was successful in keeping Syed out of that slot at the SBA. Eventually, the Biden administration shifted course; on Tuesday, Syed was announced to a nonconfirmable slot as special representative for commercial and business affairs at the State Department.
Republicans have been threatening to use the boycott tactic in other committees, like the Senate Commerce Committee, where Gigi Sohn, a nominee to the Federal Communications Commission, and Alvaro Bedoya, a nominee for the Federal Trade Commission, have been lingering. Without those nominees confirmed, Democrats do not have a majority on those two crucial commissions.
But Toomey’s action in the Banking Committee is the first escalation of boycotts since the successful effort on Syed. And some observers believe this tactic will grow as we near the midterm elections, with Republicans expecting to win back the Senate. That means there may be a time limit for Democrats to get nominees through. “They’re trying to waste time until they potentially retake control,” said Jeff Hauser, executive director of the Revolving Door Project.
The bottom line is that under the current Senate rules, Republicans committed to obstruction can indefinitely block nominees they don’t like.
During the Trump administration, Democrats did boycott committee hearings for nominees like EPA administrator Scott Pruitt. But this was known to be a symbolic show of opposition; because Republicans had a clear Senate majority throughout that term, they could get a nominee to the floor anyway by suspending committee rules. The issue here is that in a 50-50 Senate, the rules negotiated between Majority Leader Chuck Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY) apply, and as currently constructed, they prevent nominees from getting confirmed without a committee quorum advancing them.
But the Senate rules can be changed. Some progressive activists are loudly suggesting that the Senate take action to ensure that nominees with majority support can get a vote on the floor.
“[President] Biden and Schumer might very well need to work together to change the rules or use recess appointments to push through these critical nominees,” said David Segal, executive director of Demand Progress. “Allowing quorum denial to block or delay will lead to ongoing dysfunction and stymie popular initiatives to push back against corporate power. Abiding these tactics cannot be an option.”
SEGAL HIGHLIGHTED two alternatives. The first would be to use the so-called “nuclear option” to change the standing rules, and allow nominees whose markup didn’t get a quorum in committee to advance to a floor vote. The procedure would go like this: The Senate would move to vote for, in this case, the Federal Reserve nominees, and a Republican senator would raise a point of order that a majority was not physically present in committee. The chair would likely accept that, but Democrats could appeal the ruling and override the chair of the Senate. This would require all 50 Democrats and Vice President Harris to agree, and effectively set a new precedent. As Binder described it, that precedent would be: “A majority does not have to be physically present to make a committee quorum when the panel is evenly split.”
With Sen. Ben Ray Luján (D-NM) still recovering from a stroke and brain surgery, Democrats only have 49 votes in the Senate. Luján’s return is expected in a matter of weeks. But there’s no certainty that the likes of Sinema or Sen. Joe Manchin (D-WV) will vote to change the rules. It’s notable that Sinema voted for the Federal Reserve nominees, but that doesn’t necessarily translate to overriding the rules on the floor. “This strikes me as a high hurdle for this Senate majority,” Binder said.
Manchin and Sinema may also want guarantees on the type of nominees Biden would bring forward in exchange for changing the rules.
Senate leadership has no plans to seek rules changes at this time, preferring to see how the Toomey situation plays out. There’s a belief that obstructing high-profile Federal Reserve nominees right when inflation is the top political issue, given how those nominees will play a central role in managing interest rates in an attempt to tamp down inflation, might backfire politically on Republicans.
“I hear Republicans every day talk about inflation,” said Sen. Jon Tester (D-MT) at the boycotted markup. “What group is out there to deal with market forces better than anyone? The Fed. But [Republicans are] not showing up to do the constitutional duty that they were elected to do.”
The second option, without changes to the rules, would be to make recess appointments for the Fed positions, and any others that Republicans might obstruct. With Democrats in control of both chambers, they could adjourn, and give President Biden the time to make the recess appointments. Under the Constitution, those recess appointments would last until the end of the next legislative session. That would translate to the end of 2023. (Each Congress has two legislative sessions, one for each year. We are in the 2022 session now, so the next session would be for 2023.)
Advocates believe that some action must be taken, looking ahead to how Republicans may capitalize on the momentum of blocking nominees and do a blanket obstruction if they retake the Senate. “The Senate is way behind dealing with nominations already,” said Hauser. “The longer they take to fight, the longer before GOP intransigence looks unreasonable.”
