Biden’s Manchin Problem Has a Solution
Newsletter 71: Neither Mitch McConnell nor Joe Manchin won 306 Electoral Votes, something Biden should remind both Grenell and Kavanaugh supporters
Even after the Georgia runoffs, many had braced themselves for a punishing Cabinet confirmation process, anticipating significant obstruction from Republicans. After facing down McConnell’s grandstanding in the committee organization process, however, the Democratic majority has been able to successfully, albeit very slowly, shepherd through Cabinet confirmations with little controversy.
Until they reached Biden’s nominee for the Office of Management and Budget, Neera Tanden. In this case, however, it is not Mitch McConnell who is erecting the roadblock. It’s West Virginia Senator Joe Manchin, who has chosen to object not because of her record or her qualifications, but because of her mean tweets.
Even more worrisome is the fact that Manchin seems eager to repeat the maneuver. Soon after his announcement on Tanden he indicated that he was still undecided on Deb Haaland for Interior and Xavier Becerra for Health and Human Services, this time with little justification.
So, is that it? Will Biden have to abandon his choices for someone more to Manchin’s liking (Jeff Sessions, perhaps)? No. In November, when control of the Senate was still up in the air, and people feared that Mitch McConnell would deny Biden a Cabinet altogether, we argued that the Vacancies Act meant that the then-Senate Majority Leader was not, in fact, the de facto 46th President. Well, it means Joe Manchin isn’t either. If Biden wants to close the curtains on Manchin’s little show, he can simply make clear that he’s willing and able to work around him. Already, Biden is using the Vacancies Act extensively to ensure operations continue while offices await permanent leaders. If he’s willing, Biden could even render Manchin’s grandstanding counterproductive by installing rejected nominees, or equally or more progressive counterparts, to fill key roles in an acting or delegated capacity. Even just the threat of such an escalation might be enough to convince Manchin to drop his theatrically expressed concerns.
Transition:
Merrick Garland, who sat for two days of hearings this week, appears set to receive bipartisan support. Unfortunately, while Garland made several admirable commitments during his hearings, we are increasingly skeptical that he will take the steps necessary to make those words a reality.
Step one should be shutting BigLaw out of the Justice Department and tapping figures from other backgrounds instead, including public defenders, academics, plaintiffs side attorneys, public interest/civil rights organizations, labor lawyers, and others. We, alongside 36 other groups, called on Garland to make that commitment this week.
Sadly, at his Monday hearing Garland made clear that he does not share our collective skepticism for corporate America’s defenders. While Garland indicated that former Facebook lawyer Susan Davies was not in the running to lead the Department’s antitrust division, he was explicit that it was her supposed lack of interest in the role, not her past work that was to blame.
He then went further to say, “a lot of the best antitrust lawyers in the country have some involvement [in] high tech and we can't exclude every single good lawyer from...[DOJ’s antitrust] division.”
That statement was just about enough to make our heads explode. Curiously, the supposed “best antitrust lawyers” failed to do much in the way of antitrust enforcement when they were in these roles the last time around. The fact that we have reached this point, where antitrust is at the top of the agenda is certainly no thanks to these figures but to advocates, law professors, Hill staffers, and others who dared to challenge the status quo. “The best antitrust lawyers” were focusing their energies on shoring it up. So forgive our skepticism that they would deliver the sort of bold and creative antitrust enforcement that we need.
Without significant pressure, it seems likely that BigLaw will dominate areas beyond the antitrust division as well. Already, Acting head of the Civil Division, WilmerHale alum and for-profit college defender, Brian Boynton, is taking Trump and DeVos’ side in ongoing student debt-related litigation. Meanwhile, the new associate deputy attorney general Emily Loeb, “most recently represented Apple in the House antitrust investigation, and was described by those involved with the investigation to have been an obstructionist force.” Several others are lined up to take jobs or use their connections to influence the Department from the outside.
If Garland follows through with these picks, we can likely kiss significant white collar enforcement against polluters, financial criminals, pharma profiteers, and other corporate villains goodbye. The same goes for what remains of public trust in the department.
That is why the Revolving Door Project will be monitoring developments at the Justice Department carefully and drawing attention to any indications of a return to the broken status quo. As outlined in a press release published this morning, that includes personnel but also norms that have limited utility in a post-Trump reality. We encourage you to give that release a read and keep an eye out for updates.
Independent Agencies:
Despite new confirmations this week, Biden still has less than half of his Cabinet in place. It will be months before many lower level appointees are able to assume their roles. And while acting officials are able to fill those vacancies throughout the executive departments, no such remedy exists for independent agency boards. That means that many agencies will not be able to wield their full power to tackle the public health, climate, economic, and racial justice crises until nominees are confirmed to fill the vacancies.
These delays, however, are not inevitable. It is, for instance, within the Senate’s power to change the rules governing floor time which can significantly slow the pace of confirmations. Over the past several years, floor time requirements have been repeatedly reduced so that most nominations no longer demand 30 hours of debate but just two. On the blog, we argue that Democratic Senators can go even further by, for example, grouping nominations together for debate, rather than considering them consecutively. Thus, the Senate might debate 30 nominees in a ten hour block rather than five nominees.
These changes only get us so far towards majorities on independent agency boards so long as the Senate is awaiting nominations from the White House. Despite many vacancies, Biden has only submitted one nomination for an independent agency board (Chairman of the Securities and Exchange Commission) thus far. As you surely know, vacant seats on the USPS board stand between Biden and his ability to deliver the Postal Service from the hands of Louis DeJoy.
This week, RDP’s Sion Bell, highlighted vacancies on a lesser known but also consequential board, the United States Parole Commission (USPC). That commission, which reviews parole requests for prisoners convicted of federal crimes before November 1, 1987 (the Sentencing Reform Act of 1984 eliminated parole for federal prisoners convicted as of that date), those convicted of a crime under the District of Columbia Code, those convicted of a Uniform Code of Military Justice offense, Transfer Treaty prisoners, and state offenders in the Witness Protection Program, has been without a quorum for several years. The two sitting commissioners, both serving expired terms, are Bush and Obama appointees, respectively, and each have troubling criminal justice records (including, for one, a stint as President of the Fraternal Order of Police Lodge of Lexington). Luckily, replacing them, restoring a quorum, and setting the commission on a new path is as simple as making five new nominations to fill the board.
Congressional Oversight:
Committees have been formed. Impeachment has reached its disappointing end. Now, other oversight, including from the new Senate Democratic majority, is heating up. Last week, the House Financial Services Committee grilled many of those involved in the Gamestop fiasco, including the CEO of the trading app Robinhood. This week, in his first hearing as chair of the Senate Budget Committee, Senator Bernie Sanders has invited the CEOs of McDonalds and Walmart to answer for their companies low wages. It was once more routine for lawmakers to interrogate corporate CEOs and we regularly called for House Democrats to take up that tradition in the 116th. Very few heeded that call; hopefully, there will be a greater appetite for this sort of hearing in both houses of Congress in the 117th.
We were also encouraged to see Gerry Connolly convene a hearing on the challenges facing the federal workforce. Connolly was one of the few lawmakers who took the Schedule F executive order seriously and put up a spirited fight to see it defeated. It’s clear that he will continue to monitor these issues under Biden. Next, we would love to see more targeted hearings that spotlight particular agencies and issue areas (e.g. contracting) to build support for budget increases and reforms. And, as we’ve noted before, congressional oversight of potentially politicized hiring processes will be able to uncover far more than efforts by outside advocates like ourselves.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Acting Officials Can Govern for Years. They Deserve Scrutiny.
Garland Must Lock BigLaw Out Of DOJ Leadership To Enact Biden Agenda, 37 Groups Say
The Trump Administration Made a Mockery of the Law. Why Hasn't Biden Tossed its Cases?
Senate Must Clear Obstacles and Avoid False Tradeoffs
The Industry Agenda: Fossil Fuel
Neglected US Parole Commission a Crucial Component of Criminal Justice Reform
American primacy on the menu for big industry donors at CNAS – Responsible Statecraft
Why Democrats Are Split Over Potential Biden Pick Michael Barr
Facebook just handed its critics in Washington a lot more ammunition
Surgeon general nominee Vivek Murthy made millions from coronavirus consulting
Groups Want Top BigLaw Attys Kept Out Of DOJ Leader Roles
It’s Looking Like the Department of Justice under Biden Will Have Major Influence from Corporate Law
Tanden’s Confirmation on Shaky Ground as More Senators Voice Opposition
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