The Confirmation Crisis Solidifies

Biden and Congressional Democrats should direct some of their new momentum towards breaking the confirmation stalemate.

Crisis Mode

The hyper-politicization of the Senate’s confirmation process, and the manipulation of the procedures by which it is governed, has led us to a dire moment in which Republican Senators have effectively given themselves the power to deny President Biden and the public a fully-staffed federal government. This iniquitous procedural politicking has stalled crucial agencies while denying Democrats rightful majorities at several independent agencies and the long-sought regulatory policies those majorities would bring. 

Federal agencies are responsible for much of the ground level implementation of the White House’s policy priorities, priorities which have the backing of his electoral majority. Yet Republican Senators have functionally impeded Biden’s ability to implement his priorities by denying Biden votes on his chosen (and imminently qualified) leadership. Republicans are holding a functional federal government hostage in order to score themselves cynical political points on behalf of corporate donors who understand all too well the potential populist power of these agencies. 

Even more worrying, though, is that this crisis may grow even worse. With Republican Senators angry over Democrats’ quick passage of the Inflation Reduction Act, and with several of them (like Tom Cotton, Ted Cruz, and Josh Hawley) having already turned to this petty abuse of their Senatorial authorities, Democrats must prepare for the worst should Republicans decide to exacerbate the confirmation crisis even further. 

The consequences of this fraught procedural maneuvering are broad ranging and extreme, from the sheer amount of time that these baseless and bad-faith disruptions consume on the Senate floor to the hobbling of regulators and desperately needed regulation that inevitably results from it.

Time Wasted 

In June we released an analysis that deconstructed just how costly this broken confirmation system is relative to the amount of time that can be forcibly dedicated to it, which subsequently divests hours and days of Senate floor time from actual debates and policy pursuits. 

Little progress has been made since June, and the confirmation crisis remains a crisis. As of August 30th, Biden has 327 appointed seats left to fill, broken down as follows:

U = US Attorneys // 36 

J = Judicial (Non-Circuit) // 69

JC = Judicial (Circuit) // 7

G = General Agency Vacancies // 82 (outright) + 1 (awaiting official appointment) + 132 (before the Senate) = 215

As per our analysis from June, each of these positions correlates to a set number of hours of post-cloture debate that can be forced for each individual candidate through the denial of “unanimous consent.” Most nominees, like U.S. Attorneys, non-Circuit Court federal Judges, and the majority of independent agency nominations, take two hours of Senate floor time when unanimous consent is denied (typically for frivolous reasons). For others, like Supreme Court Justice nominees, Circuit Court nominees, and many Cabinet and Cabinet-equivalent nominees, the process may take 30 hours of Senate floor time per individual. For the current breakdown of vacancies, the numbers add up as follows:

2U + 2J + 30JC + 2G = Y Total Hours of Potential Hours of Debate

2 (36) + 2 (69) + 30 (7) + 2 (215) = 

72 + 138 + 210 + 430 = 850 Maximum Potential Hours of Senate Debate 

With a Senate workday that averages just six hours, this means that confirmation activities could at present be forced to take more than 141 days.

Setting aside the fact that this Congress still has to work out a budget agreement for FY23, even assuming no recesses, the Senate also has only 125 days left in the entirety of its session. Meaning, if Republicans took their belligerency to its most extreme, they could occupy every single day left of this session with only confirmation activities and there would still be nominees left over. For Democrats, whose slim Senate majority is hardly guaranteed following the midterms, time is literally running out.

Holding Nominees Hostage

From employment discrimination to data privacy to housing, Republicans are using the confirmation crisis to prevent federal agencies from fulfilling their mandates. Here are several examples of important nominees currently held hostage:

Perhaps the best known victim of the confirmation crisis is Federal Communications Commission nominee Gigi Sohn who has been awaiting confirmation since last October. While Sohn has been stalled in the Senate, the FCC has been trapped in partisan gridlock that has prevented its Democratic commissioners from restoring net neutrality, expanding broadband access, and otherwise innovating new and necessary telecommunications policy to better serve the public. 

Similarly, Republicans are also holding hostage the nomination of Kalpana Kotagal, Biden’s pick to sit on the Equal Employment Opportunity Commission. Kotagal is a civil rights attorney who is expected to cement the Democratic majority on the commission and help usher in a new rush of progressive regulatory guidance for employers, including items related to LGBTQ+ issues and sexual harassment. Also at the EEOC, Karla Gilbride (the top lawyer at non-profit legal advocacy group Public Justice) is stuck awaiting confirmation as the Commission’s General Counsel. As General Counsel, Gilbride could also help cement the progressive bent of the EEOC’s regulatory interests while leading the jumpstarting of the EEOC’s litigative action against employers which violate workplace anti-discrimination policies. 

At the Federal Energy Regulatory Commission, an agency charged with the regulation of “the interstate transmission of oil, gas, and electricity,” Richard Glick’s floundering renomination risks creating partisan gridlock at the agency. Gridlock there could undermine Democratic priorities for acting on climate chaos and changing the federal approval process of interstate pipelines, and other issues. 

On housing issues, David Uejio, Biden’s nominee to be Assistant Secretary of Fair Housing and Equal Opportunity at the Department of Housing and Urban Development, has been waiting for a vote for more than a year. Solomon Greene, the nominee to be Assistant Secretary for Policy Development and Research, has been awaiting confirmation since April of 2021.

These months-to-years long battles, over eminently qualified nominees, are unacceptable. The government’s most basic functionality cannot be made into a mere political pawn for Republicans to play with when and if it suits them. Democrats have to do more to protect the public, and the president’s policy priorities, from this shameless malfeasance. 

Democrats do have short and long term options to tighten confirmation timelines, limit the number of officials eligible for Senate confirmation, and close some of the procedural loopholes that are dragging out the process. They must finally act on them. Waiting for Republicans to grow a moral backbone, or to simply get bored of their villainy, isn’t a realistic political strategy with time literally running out for these crucial positions. Democrats should take the threats posed to our system of governance by these tactics seriously, and return from the August recess prepared to finally address this crisis with the urgency that it merits.

Crime’s Fruits and White-Collar Suits

Our long-form piece out in Democracy Journal late last week—“Enforcement: The Untapped Resource”—outlines how cracking down on corporate wrongdoers is not just smart populist politics, but easy to sell to deficit hawks as well. We make the case for Democrats in Congress to unite behind increased spending on enforcement and crack down on environmental, health, consumer and labor standards violations. Why would centrist Democrats get on board with increased spending? Because enforcement at the IRS, EPA, FTC, SEC and elsewhere brings down the deficit. These and other agencies collect far more money in fines and penalties than their enforcement operations cost. 

Enforcing existing laws is one of the most potent tools at any administration’s disposal. Unfortunately, “the government’s most well-known, well-funded enforcers are not those enforcing labor laws, returning stolen wages to workers, or protecting organizing employees from illegal union-busting tactics; they’re not those enforcing environmental laws or investigating industrial plants in neighborhoods with high levels of cancer. ‘Federal law enforcement’ in the American imagination means the security state: Border Patrol, the FBI, the Secret Service. Federal spending backs up that impression; immigration enforcement receives more than ten times as much funding as labor standards enforcement.”

“To undercut public skepticism of the government’s role in their lives,” we write, “messaging won’t be enough; there needs to be a demonstrable shift in priorities toward holding the most powerful to account. Chronic underfunding means that the agencies with the most laudable missions—the ones seeking to protect ordinary Americans from profit-driven exploitation—often struggle to go up against powerful corporate interests. Strengthening funding for enforcement to protect Americans from environmental, health, consumer, and labor standards violations is an existing, easily justifiable tool for changing that balance of power.”

Politico asserted yesterday that the Mar-a-Lago search, and Republicans’ subsequent cries to “defund the FBI,” give Biden an opening to reframe the partisan politics of crime. Rather than doubling down on retrograde calls to “fund the police,” we’d like to see Biden use that opening to push for a broadscale corporate crackdown, directing federal resources to stand up against the corporations and elites who make illegal profits at the public’s expense—of which Trump is emblematic. 

On the topic of whether the government will prosecute powerful lawbreakers, after the D.C. Circuit Court rebuked Merrick Garland for his “indefensible decision” to hide the Office of Legal Counsel’s memo to Bill Barr on Trump’s obstructionism from public view, the memo was finally released in full last Wednesday. 

The nine-page memo “presents a breathtakingly generous view of the law and facts for Donald Trump,” according to Citizens for Responsibility and Ethics in Washington, who fought for years to get the memo released. The memo is not merely an insider glimpse into how Trump’s cronies in the Justice Department used craven contortions of legalese and flagrant misinterpretations of the law to justify the former president’s whims. As Randall D. Eliason wrote for The Washington Post, it is also a dangerous “whitewash — a failed effort to provide legal cover for Barr’s foregone conclusion exonerating the president.” This flimsy legal shield should not be left intact.

While Garland wrongly chose to continue his inherited defense of this memo’s secrecy, there is still fast-dwindling time for the Justice Department to make a public prosecutorial judgment about the possible acts of obstruction detailed in the Mueller Report. Trump is no longer the sitting president, but the five-year statute of limitations on his actions when he was is steadily ticking away. For at least six possible counts of obstruction, including Trump’s efforts to fire and curtail Mueller, the window for prosecution has already closed.

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

Enforcement: The Untapped Resource

Marc Goldwein and the Limits of Deficit Scolding

Some Trump appointees become critical figures for Biden

Third time's the charm: Top Biden adviser's corporate clients draw scrutiny

Anita Dunn advises Biden while her firm undermines Democratic Party priorities

FTC Files 'Urgently Needed' Suit Against Data Broker, Citing Threat to Abortion Patients

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