As of July 22, the Senate has confirmed only 50 of President Donald Trump’s 229 executive nominations. Put another way, less than a month from the August recess, the Senate has confirmed only 22 percent of those nominated to serve in the Trump administration. By the same point in President Barack Obama’s first term, the Senate had confirmed 53 percent of Obama nominations.
This situation is clearly the result of a breakdown in the Senate. The rules for nomination allow any senator to use hours—sometimes days—of precious Senate floor time to debate the confirmation of that nominee. But that rule is being abused, as evidenced by the first six months of the Obama and Trump administrations.
By the first August recess of the Obama administration, only four nominees needed cloture votes—that is, a vote to end the debate on a nominee so that senators can move on to a confirmation vote. Democrats, on the other hand, have required more than 30 Trump nominees to go through this burdensome and time-consuming process. Any president, Republican or Democrat, deserves better.
I have a simple proposal: Change the rules of the Senate to limit debate on sub-Cabinet and lower-court nominees to two hours on the Senate floor. Use Senate committees to vet nominees and report on them to the full Senate, where leadership can assign appropriate members to make the case for or against a nominee in the allotted two hours. Then vote.
For my Republican colleagues who might resist such a change in the Senate rules, let me remind everyone that the nuclear option—changing Senate rules with a bare majority of votes—has already been deployed by former Senate majority leader Harry Reid, D-Nev. In early 2013, he and his fellow Democrats were frustrated that Senate Republicans were not allowing them to pack the U.S. Court of Appeals for the D.C. Circuit. Reid, unable to bring about an agreement on future confirmations, eventually decided to employ the nuclear option on Nov. 21, 2013—despite bipartisan reluctance to altering Senate rules.
To gain public support for this unprecedented action, Democrats accused Republicans of obstructing the confirmation of Obama’s nominees. These accusations ignored the fact that five years into Obama’s presidency, 1,560 of his nominees already had been confirmed and only four had been formally blocked. But Reid never let truth get in the way of a good political attack.
Of course, Republicans are not innocent, either. There are many ways to hold up nominees, and both Republicans and Democrats have employed those tactics over the years. In fact, Republicans grew so frustrated with Democrats in 2005 for blocking President George W. Bush’s judicial nominations that they also proposed changing the rules. It was only because of a bipartisan “Gang of 14” opposing the nuclear option that their proposal was never enacted.
But it was Reid who then in 2013 acted and changed the Senate permanently: Now, whenever one party has a bare majority, it can follow the Reid precedent and change the rules with 51 votes. Republicans did so earlier this year to confirm Supreme Court Justice Neil Gorsuch. The Senate’s rules will inevitably be changed again in the future using Reid’s 51-vote precedent.
Regardless of one’s opinion on Reid’s action, the precedent has been set. It cannot be repealed or undone. The post-nuclear Senate is now our reality. It would make sense to at least try to use this precedent and make Washington somewhat less dysfunctional.
The Senate committee process works well with nominations. Candidates are thoroughly vetted by committee members and staff who are well versed on the issues that nominees will be empowered to address. Once a nominee is processed and voted out of committee, it would be sufficient and entirely appropriate to hold an expeditious vote on the Senate floor.
But when it comes to nominations, the number of executive agency positions that must be confirmed—between 1,200 to 1,400—is absurd. Current Senate rules that allow for one delay after another in the confirmation process are equally so.
Our country is facing enormous challenges. An administration that is denied its nominees will be unfairly and unnecessarily crippled. We should not sit idly by in the post-nuclear world imposed by Reid and accept the dysfunctional confirmation process or allow these significant problems to remain unaddressed.
I would like to comment on the speech given by Sen. John McCain on the floor of the US Senate on July 26. This was a very good speech for our time. He channeled the ghost of Henry Clay when he called for compromise and a need for senators to work together for the common good of our Union just as they did during the era from 1820 to just before the Civil War. I hope we may be able to remember his words in our local interactions in Twin Falls for we must also work together as community members to bring about the common good.
People who want to use the power of government as a hammer—in action or in political talk—often talk about all those regulations, which both federal and state agencies have, intrusive or not, in abundance.
But they remain mysterious for many people, so it seems reasonable to take a moment to look at what they are, how they happen, and where to find them.
There is a compilation called the Code of Federal Regulations, but it’s cumbersome to go through. The place to go to find out what’s happening in the federal rules is the Federal Register, a daily (on weekdays) publication that includes all sorts of notices, rules and regulations prominent among them. The whole thing is almost a daily diary of what the federal government does, and it’s more than most people could read. I have an e-mail subscription to the daily table of contents (free at https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new) and use it to scan through what the agencies are up to. Links to the full text of all of it is included.
A lot of it is unexciting maintenance stuff, and meeting notices, funding awards, findings of fact and other material is mixed in. But if a rule is being created or amended or repealed, it has to—by law—show up in the Federal Register. Anyone interested in tracking what the federal agencies actually do could do worse than to start there—and it is searchable.
The states all set up rules and regulations that accompany the state laws; laws are passed by the legislature to set the outlines and general policies, and the rules and regulations are developed through the agencies, often to fill in the gaps left by the laws, often with participation—or at the request—of various interests involved with them. Business and environmental groups, for two examples, often pay close attention when rules are being crafted, and often get their message into the mix.
The states report on their regulations in different ways. Until a couple of decades ago, Idaho had no comprehensive catalogue, or publication of changes, to its rules. Now it does, via the state Department of Administration, in the office of the rules coordinator (that’s a state job). You can find it online at adminrules.idaho.gov.
That office puts out a monthly publication called the Idaho Administrative Bulletin, which includes all the changes either being made or under review. It expands and contracts in size through the year like an accordion, because the Idaho Legislature reviews all the rule changes each session, and during the legislative season rulemaking activity comes to a near halt. Other months, there’s a good deal more, especially not long after and not long before the session. In the July edition (it publishes the first Wednesday of each month), the Bulletin runs 117 pages, reflecting a mid-cycle stretch. In certain months it can become much larger; the edition from last October ran 863 pages.
That’s a lot of Idaho rule-making, but not especially unusual. The legislature’s job, when it passes laws, isn’t to try to work out every detail of how a law is supposed to work; but by the time state employees have to make it work, they have to know what to do and how to do it, in a practical and consistent way. Hence the rules.
The regulations are in other words where you really get down into the weeds, into the details of how things work. It’s not the most exciting place to prowl around, as a general rule. But if you want some real insight into how governments, federal or state (or local too, for that matter) work, this is where you can most readily get some solid insight.