“Shizpoodledog.” Claire McCaskill (D-Mo.) says that was her grandmother’s word for foolishness or time-wasting nonsense. And according to Senator McCaskill, it’s the perfect word to describe Republican senators’ unprecedented use of “holds” to block President Obama’s nominees to lead federal agencies. There are currently over 90 nominees whose confirmation has been indefinitely delayed by Republicans using this procedural tactic.
Usually, the only Senate confirmation hearings that get any attention are the big ones– cabinet members and Supreme Court Justices. But there are hundreds of other positions filled by the President that also need to be confirmed by the Senate- everything from the Administrator of the Rural Utilities Service to the Deputy Administrator of the National Oceanic and Atmospheric Administration (for a complete list of positions requiring Senate confirmation, click here).
Here’s how the process is supposed to work:
- The President nominates someone to a position
- The relevant Senate committee holds a confirmation hearing
- If approved by committee, the nomination heads to the floor of the Senate for a final vote
However, before the final vote, any Senator can place a “hold” on the nomination, which basically stops the confirmation vote from happening. And a Senator who places a hold doesn’t even have to announce it publicly- they can place a “secret hold” simply by telling the leadership of their party that they object to the nominee. The party leadership then announces that they don’t have unanimous consent to proceed- which is what you see happening in the video above, during the exchange between McCaskill and Senate Minority Whip Jon Kyl.
The only way to get around a hold placed by a Senator is by voting on “cloture” (in other words, to end debate). Then the rules are the same as for ending any filibuster- it takes 60 votes. The problem here though is that even if there are enough votes to end debate, the process takes about a week. The Senate usually has more urgent things to do than spend a week voting on members of the Marine Mammal Commission (where two current nominees are the subject of anonymous holds) or the Deputy Director of the Peace Corps (ditto), so those positions go unfilled. Or as Ezra Klein puts it:
To think about this differently, imagine how much hiring would get done at IBM if their board of directors had to spend a week considering each and every potential employee.
What this means in practice is that even if 99 Senators are ready to vote to confirm a nominee, just one anonymous Senator can block them.
And Senators can block nominations for any reason. For example, Sen. Jim Bunning, R-Ky., blocked Miriam Sapiro’s confirmation as deputy U.S. trade representative for more than six months because he wanted the Office of the U.S. Trade Representative to go after Canada for banning flavored cigarettes. According to an article in the Associated Press:
Many of President Barack Obama’s stalled nominees are in line for what appear to be noncontroversial jobs. Some confirmation delays, however, are clearly disruptive.[Senate Majority Whip] Dick Durbin said Larry Robinson, waiting six weeks to become assistant secretary of commerce for oceans and atmosphere, got a confirmation vote Thursday only because of the Gulf oil spill. “The embarrassment level for the hold became overwhelming,” he said.
The National Transportation Safety Board met Tuesday to discuss findings from last year’s splashdown of an airliner in New York’s Hudson River. But only three board members — instead of five — were there, because the Senate hasn’t acted on two nominees, one a Democrat and one a Republican. The Democrat has been on the Senate’s docket since December.
Then again, for some Senators who oppose any regulation of big business, weakening these agencies would be the point. Under the Bush administration, these Senators confirmed dozens of former corporate lobbyists and CEO’s to head agencies regulating the very industries they used to work for. (In just one of dozens of examples, Sam Bodman, Bush’s Secretary of Energy, used to run a chemical company that was named one of Texas’s top five worst polluters).
But with Obama nominating people who want to strengthen these agencies, not weaken them, Senators who are cozy with big business can still undermine their work by leaving key positions unfilled. And you can see this in the numbers: In the spring, there were holds on 77 of Obamas nominations (that number has since grown to 96). At the same time in Bush’s presidency there were only five holds.
In health care, the nominee for an Assistant Secretary in Health and Human Services has been blocked since December, and President Obama had to make recess appointments to fill several other HSS positions. (These are a stopgap way for the president to make appointments- by doing appointments during a Senate recess, the appointees can start working without Senate confirmation, but can only work until the end of the Congressional session.)
One extremely important nominee that Obama just announced is Donald Berwick as administrator for the Centers of Medicare and Medicaid services. If confirmed, he would play a key role in implementing the new health care reform legislation. But the way the rules work now, any anonymous Senator that wants to slow down health care reform could place a hold on his nomination.
Senators Ron Wyden (D-Ore.) and Chuck Grassley (R-Iowa) are trying to get the Senate to change its rules and put an end to secret holds. One Senator would still be able to obstruct confirmation, but at least they’d have to face questions about why they’re doing it. According to Wyden, the bottom line is:
“If you can’t make a good public case for why you are doing something, you shouldn’t be doing it.”
Meanwhile, the Gulf oil spill, the Massey Energy mine disaster a few weeks earlier, and the debate over new financial rules to protect us from an economic meltdown, have led many people to ask: “Where were the regulators?” Agencies with key positions unstaffed are just one of many ways that government regulators have been undermined for decades. Former labor secretary Robert Reich argues:
When shareholders demand the highest returns possible and executive pay is linked to stock performance, many companies will do whatever necessary to squeeze out added profits. And that will spell disaster – giant oil spills, terrible coal-mine disasters, and Wall Street meltdowns – unless the nation has tough regulations backed up by significant penalties, including jail terms for executives found guilty of recklessness, and vigilant enforcement.
After thirty years of deregulation, it’s time for the rebirth of regulation: Not heavy-handed and unnecessarily costly regulation, but regulation that’s up to the task of protecting the public from companies and executives that will do almost anything to make a buck.