Consultants and Kludgeocracy

One more on this topic and then I'll let it go. As I said in the Prospect piece, I pretty much agree with Steven Teles in his description of "Kludgeocracy" and the causes for it. 

The one possible exception I have is something pretty important: the outsourcing of government work to outside contractors, particularly in the national security area. Here's Teles:

Finally, kludgeocracy is now self-generating, as its growth has created a "kludge industry" that feeds off the system's appetite for complexity. In the name of markets and innovation, and driven by increasingly strict (and often arbitrary) limits on government personnel, the United States has created what public administrators call a "hollow state," in which core functions of government have been hired out to private contractors, operating under the oversight of increasingly overwhelmed civil servants. Christopher McKenna, in his book The World's Newest Profession, shows that, for over half a century, management consultants brought in to advise governments (at great expense) have — not surprisingly — recommended a greater role for consultants and contractors.

This army of consultants and contractors then became a lobby for even greater transfer of governmental functions to outsiders — including, as Janine Wedel shows in Shadow Elite, the transfer of such core roles as formulating policy recommendations and overseeing contractors. This kludge industry, having pulled the fundamental knowledge needed for government out of the state and into the private sector, has thus made itself nearly indispensable. And with its large, generally non-competitive profits, the kludge industry has significant resources to invest in ensuring that government continues to layer on complex policies, and hence continues to need to purchase more services.

I agree with all of this, and think it's a potentially very big deal, and very bad for US democracy and governance.

What I'm not entirely certain of is that it's similar to other "kludeocracy" examples -- the overly complex health insurance reforms, the climate proposals designed as workarounds when Congress won't co-operate and the courts give some latitude and take other options away, and more.

This one, to me, is at least potentially something that could happen in any system once it starts down the path of outside contractors. And I suspect that the first steps down that path are driven not by a system with lots of veto points, but a combination of voter imperatives and politician incentives: both are driving politicians to find ways to cut government without touching government services.

In other words, it's very possible for me to imagine a US Conservative Party in a Westminster system doing the exact same thing in order to make anti-government conservatives happy without upsetting swing voters. Or even a US Labor Party in a Westminster system, with a Bill Clinton as Prime Minister, doing the same thing in order to be able to brag about ending "big government" without taking any hits for removing actual government services.

Now, on the other hand, as far as I know it hasn't happened elsewhere (has it?). So maybe it is driven by the US system; surely the weaker bureaucracy in the US has fewer tools to resist outsourcing government than stronger bureaucracies elsewhere.

So I'm disagreeing; just raising the question. I'd love to hear some experts chime in on this one. I will say that if it really is an inherent part of the US system under modern conditions, it bothers me quite a bit, certainly more than the occasional government shutdown or even the kludgey ACA.

Elsewhere: Nominations, Tree-Shaking

Today at PostPartisan, I suggested the possibility that daily briefings are driving the need to have something to say at the daily briefings, rather than the other way around. And that it reminds me of the "shake the trees" business from the end of the Clinton administration.

Yesterday, I put in another call for reforming executive branch nominations.

And one earlier one: I wrote a pretty optimistic assessment of the ACA website fiasco.

That's all for now. Should have the usual Salon column over the weekend and a Monday TAP piece; that seems to be getting to be a fairly regular schedule.

Quick Oversight Hearing Primer

I'm not watching the big House Obamacare oversight hearing this morning, but half my twitter stream is, and we've reached the point in which they're complaining that we're not going to learn anything.

Here's why they are actually very useful. Even when they're boring.

Time for a quick primer. Congressional oversight hearings are mostly useful because they exist. The actual hearing itself? Not much usually happens. But the threat of being called to account, and then the process of being called to account, should and probably does put pressure on executive branch agencies and departments. That's a good thing!

There's also a part of it which is just getting everyone on record in a formal setting. That's not going to be very informative, usually, at least for attentive observers, since all anyone is going to do is to confirm what's already out there. But there really is some utility to having these things on record, officially out of the mouths of those who are supposed to be getting things done.

Remember that this is part of separated institutions sharing powers; oversight hearings are one tool Congress has to compete over who gets to execute the laws, and how those laws will be executed. So the public part can be very bland but still be a key part of bullying bureaucrats, administration officials, and outside contractors (among other things, a bland hearing can be their reward for being bullied).

Moreover, since the public testimony might be irrelevant to the point of having the hearing, individual committee members can use the time for producing clips that can run on local TV news shows. Every once in a while that will make good TV, but usually not. Don't forget; the witnesses usually have an interest in not making news, and so if they're smart they'll leak things out beforehand in order to better manage the spin. Which again might make the actual hearing boring even if it's been successful in generating information that would otherwise have remained unavailable.

Conclusion: if everyone does their job properly, most oversight hearings will be both (1) boring, uninformative (especially to beat reporters who know the subject) occasions for the worst self-aggrandizing politician behavior; and, (2) a highly useful and functional part of the process of separated institutions sharing powers.

Nominations Update

Good news #1: The Senate processed a large batch of nominations before they left town for the month. Some ambassadors, some miscellaneous board members, but also a bunch of assistant secretaries. Fewer empty desks is good.

Good news #2: Barack Obama has cranked up the judicial nominations. Last week he sent up six;
yesterday he nominated six district court judges and three circuit court picks.

Good news #3: Along with the judicial nominations, Obama also this week sent up a slew of executive branch nominees. Fewer empty desks is good!

Bad news #1: There are still far too many vacancies without nominees, including over forty seats on the federal bench.

Bad news #2: Yes, they were busy with the executive branch nominations...but the Senate only confirmed two judges in July. They will do two more right away when they get back in September.

Bad news #3: Everyone is still ignoring my call for executive branch nomination reform: far less vetting! Which means that even if we now have simple majority confirmation, or at least least we have it as long as it lasts, it's still far too difficult to fill these spots. Again: the vetting for judges is insane, but at least plausibly justified -- no one wants a lifetime-appointment crooked judge, and those jobs are valued enough that it's unlikely the insane vetting creates any shortage of top-qualified people. But the current vetting procedures for exec branch nominations almost certainly is massively counterproductive. Among other things: I'm willing to bet that crazy over-vetting narrows the pool enough, and filters out enough perfectly good candidates, that the overall effect is to wind up with more crooks and incompetents, not fewer.

How the Senate Deal is Working

The Senate today is confirming all the NLRB nominees. That's a big deal, substantively and with regard to procedure. It means that Republicans stayed with the nuclear-avoiding deal through the original seven nominees that Harry Reid was attempting to get through -- given, that is, that Barack Obama was willing to substitute two new NLRB nominees of his choice.

A little analysis.

Through the first four closely contested cloture votes -- Cordray for CFPB Perez for Labor, McCarthy for EPA, and Hirozawa for NLRB...

Four Republicans voted for cloture all four times: Collins, Corker, McCain, and Murkowski.

Three Republicans voted for cloture three times: Alexander, Flake, and Graham.

Five Republicans, Ayotte, Wicker, Isakson, Portman, and Kirk, voted for cloture twice.

And another nine Republicans voted for cloture a single time.

In those closest vote, Perez for Labor, Alexander (3 times) and Kirk (twice) voted with the solid four to make it 60-40.

Those are the cloture votes. The confirmation votes were generally close; Hirozawa and Perez were party-line votes.

So what seems to be the case is that Republicans are going to tag-team to make sure that they get at least six votes for cloture on all (most?) nominations, with four of them perhaps on board for every vote, and the others rotating through.

Here's what I don't understand. Through the Hirozawa cloture vote, I have 21 Republicans voting for cloture on at least one of these nominees. That's not quite half, but it's close. It sure seems to me that those Republicans are being victimized by the other half of the GOP conference. Remember, there's no need to have a cloture vote at all -- except if either the minority forces it by filibuster, or the majority insists on it, either for traffic management purposes or because they just want the vote. I'm assuming that Reid would not be holding extraneous cloture votes under the deal, so it's Republicans who are forcing these votes.

Granted, it's possible that Wicker, Cochran, Chambliss, and the rest just want an opportunity to differentiate themselves from Cruz, Paul, and Lee. I'd be pretty surprised if that's the case.

I'll point out, for whatever it's worth: 55 Democrats (all except Levin) and the 21 Republicans who have supported cloture at least once on these nominees add up to 76, which is more than enough to implement "by the rules" Senate reform and reduce the number needed for cloture on executive branch nominations to a simple majority, thereby freeing everyone to vote how they want.

What Mattered This Week?

Well, yes, I do think the Senate showdown mattered quite a bit. To begin with, just the confirmations that have already happened are a big deal. Assuming that the NLRB picks also go through (and I'll be very surprised if it doesn't hold through that point), it's even a bigger deal.

Then, if the deal holds through the 113th Congress, that means plenty of other exec branch nominations going through.

That Harry Reid was able to line up 53 Senators for a nuclear threat may also mean that Republicans will be even more selective about blocking judicial nominations. Note that they haven't been obstructing many of them at the Senate floor stage this year, anyway.

And then there's the broader issue: they eventually didn't go nuclear, which may mean that the filibuster in general is safer in the long run than it would have been otherwise.

So, yes, all of that mattered.

For something that doesn't matter? How about the efforts over on the House side to keep the IRS scandal going as a presidential scandal.

That's what I have, but it was a very newsy week, so: what did you think mattered this week?

Read Stuff, You Should

Happy Birthday to Alex Winter. Esq. 48, and always most excellent.

Good stuff:

1. Eric Schickler and Greg Wawro on the Senate showdown.

2. Brad Plumer asks: Does the Senate really need to confirm 1,200 executive branch jobs? I think his answer is probably no, and my answer is more-or-less yes, but it's a good and fair overview of the situation.

3. Nice one from Paul Krugman about markets, firms, and other such things.


4. And I'm a big fan of Taegan Goddard's Political Wire -- if you are, and you should be, be sure to check this out.

Wait -- The White House Has Backup Nominees Quickly Available???

Following the Senate nominations deal, which seemingly happened late last night or early this morning, the White House needed replacement nominees for the two NLRB picks who were the losers in the compromise.

And what do you know: they were named this afternoon! In fact, as Harry said just said on the Senate floor, they'll get their hearing on Tuesday (that is, in one week), the HELP Committee will vote on them on Wednesday, and they'll be considered on the Senate floor on Thursday. Soup to nuts in nine days. Huh?

Well, obviously, the larger part of this is that Republicans are removing procedural obstacles by agreement. Which reminds everyone of a key point: it's not just about defeating nominations by filibuster; it's also about delaying them, and about using up the Senate's time.

It's also worth noting that as slow as Congress is normally, they can move very quickly when they all agree to.

But the big thing to notice here is: what about the months of vetting?

Two possibilities. One is that Harry Reid and Barack Obama figured on this outcome months ago, and were prepared for it.

More likely? It's as if all of that vetting isn't really necessary after all. That is, it's not necessary for making sure hat the nominee will do a good job in office; it's only needed in part to get nominees through the confirmation process without surprises, and in part just because of bureaucratic standard operating procedure that has no other purpose.

All of which is to say: if it's good enough for these two NLRB picks, it should be good enough for most administration posts. Reduce vetting now!

Catch of the Day

To Christian Beckner at Foreign Policy who notes that, with Secretary of Homeland Security Janet Napolitano announcing that she's leaving, that there are now -- ready? -- 15 key slots at that department that will be vacant.

Let's see...I think I'll do this one bullet point style.

* It's fairly likely that there are other similar cases at other departments and agencies. Hey, reporters! There are stories out there about this stuff.

* Some of this really is a filibuster story. Some of it is about the impossible vetting standards that have built up over time. Senate reform is only a part of the solution, here.

* And some of it is almost certainly Barack Obama's fault. Indifference to governing? Failure to understand the importance of personnel? Don't know. I do know that every failure to appoint someone to fill a vacancy is a wasted opportunity.

* Yes, it's still the case that nominations, both judicial and executive branch, are Obama's biggest unforced errors of his presidency.

* Democrats haven't receive nearly the bashing they deserve over the creation of the Department of Homeland Security. Terrible idea to begin with, and as far as I can see it's had even worse consequences than I expected. 

* And that's not to mention the awful name. 

* Nevertheless, there's nothing to be done about the department as a whole at this point. It would just create more pointless set-up costs.

* Did I mention the awful name yet? 

I think that'll do it for now. Also: nice catch!

An End Game on Executive Branch Nominations?

I wrote yesterday over at PP about what, from my perspective, is the very good news about Senate reform -- it appears that Harry Reid and the Democrats are now planning to decouple judicial and executive branch nominations, with the current plan to threaten to go nuclear only on the latter. That plan appears to be further confirmed in a NYT story today. It now strongly seems that Showdown July in the Senate will be primarily, and perhaps exclusively, about exec branch nominations -- indeed, while the three DC Circuit appeals judges are going to be moving through committee, there are hardly any judges remaining ready for the Senate floor. 

Long-time readers will know that I support simply-majority cloture for exec branch nominations -- that is, leaving the hold/cloture procedures in place, but making it impossible for a minority to permanently prevent confirmation. Why are holds respected? Well, to some extent it's about mutually protecting every Senator's interests; holds (on exec branch nominations) give Senators leverage not over other Senators, but over executive branch departments and agencies, so the practice of holds is good for the Senate in general. To some extent, however, holds are respected because they are threats to filibuster once something reaches the floor. Since one Senator can, basically, force a cloture vote (and make trouble in other ways), and cloture votes are inconvenient for the majority, the majority respects holds in order to use floor time more efficiently. 

So, basically, if via the "nuclear option" the Democrats rule out filibusters of any kind on exec branch nominations, the majority leader could nevertheless continue to honor holds...or not. There would still be a positive reason to do so (that is, increasing the leverage of individual Senators), but the negative reason would be mostly -- but not entirely -- gone. Not entirely, because a Senator could still threaten to make mischief in unrelated areas (such as objecting to routine procedures). 

What I'd rather have happen is a compromise that retained cloture, exactly as it is, but with the simple majority threshold. Unfortunately, that seems extremely unlikely -- even though, as I've argued many times, the minority party should be perfectly happy with that arrangement, because they really don't care about defeating most exec branch nominees.

If I had to guess, by the way? I'm guessing substantial Republican retreat, with that being enough to stall majority-imposed reform. EPA and Labor get confirmed, along with, perhaps, either NLRB or CFPB. They probably make happy noises on at least one, and perhaps even all three, of the DC Circuit picks. So they still get one, or maybe two, nullifications going forward, and with that the most reluctant Democrats decide that it's not worth going through with destroying the filibuster.  

And that's not such a bad solution! 

Again: the proper follow-up to all of this would be real exec branch nomination reform, focused not only on removing the supermajority hurdle but also on massively reducing vetting on both ends of Pennsylvania Avenue. It's what Barack Obama should be pushing for, but so far, no sign of it.

Congress Gags Itself

I like this Kevin Drum item on NSA and oversight, but it repeats something which I think shouldn't be accepted so easily by everyone:

The traditional method of oversight is via congressional committees and the court system. But even if you assume that intelligence organizations are reporting their activities honestly, those don't really work anymore. Once a program is in place, courts end up rubber stamping virtually every application and congressional committees do pretty much the same. They simply become too accustomed to what's going on to truly pay attention. And in the case of Congress, even if some members do have issues, they're all but gagged from speaking out about them.

Congress is gagged, yes -- but because they allow themselves to be gagged. It's not inherently up to the bureaucracy or the president to set the rules about secrecy. Congress can do that. And they do, either explicitly or implicitly.

Granted: both the president and the bureaucracy can fight for the rules they prefer, too. But Congress, when they really want to do something, have plenty of tools to make it happen.

The reality here is that Members of Congress, with only a few exceptions, have been perfectly happy to gag themselves. To some extent that's because they approved of policies they didn't want publicity about, perhaps because they believe publicity would harm the consensus for those policies. To some extent it probably is because they are concerned about actual national security damage if secrets were publicized; that can be sincere even if it's wrong. But to a large extent, it's probably because pretending that they have no ability to do anything -- they can't even talk about it! -- is a very nice way of ducking responsibility.

I wrote something over the weekend saying that those upset about the NSA stories should be putting a lot of the blame on Congress, and this is yet another part of it. This is Congress's job. no one should let them off the hook with the excuse that they "have to" do what the NSA or the president says.

Time for Some Nominations. A Lot of Nominations

(UPDATED)

Today's news, outside of the continuing scandal stuff, is Greg Sargent's big scoop that Harry Reid is tentatively planning for July to be nominations month -- complete with the threat of majority-imposed reform. I already wrote about it as a chess move over at PP today (I think Reid did well), and I probably should write something at some point about what the substance of the threat in terms of Senate rules and procedures. But there's one more point that's important to get to:

If Harry Reid is willing to spend serious floor time on nominations, he needs more nominees. Lots more nominees.

In particular, he really needs those three DC Circuit Court selections that the president still -- still! -- hasn't sent up. Okay, there's some excuse on one spot because he had a nominee who was defeated by filibuster. But still, that cloture vote was ten weeks ago, and she withdrew her name almost two months ago (and it's not as if the cloture vote defeat was a big surprise, either).

But that's not all! Reid needs Obama to supply a full complement of executive branch nominees. Yes, as Greg points out, the high-visibility slots are the head of EPA, Secretary of Labor, and the nullification case of CFPB. There's also a Commerce Secretary nominee to confirm, and a full set of NLRB nominees. There should be, however, far more. With Reid signaling a window of available floor time, it sure would be nice to have as full a slate as possible of subcabinet executive branch nominations for the Senate to confirm.

And, yes, as many of the other 50-plus judicial nominees as possible.

To get all of those picks through committee and ready for the Senate floor in July, they really need to be selected very soon. C'mon, Mr. President: it's time for a fully functioning administration, and that takes executive branch nominees.


UPDATE: I should note that in the last couple of weeks the White House really has been starting to roll out more judicial picks -- one circuit court selection and three district court selections yesterday, on top of a few last week. That's good! But there's a lot more to go. And plenty of executive branch vacancies as well.

Dogs, Not Barking

Here's a special executive branch nominations edition of "Dogs, Not Barking." A quick search found pretty much zilch news about any of these: that's a big story! On the good side, at least the White House has finally updated their nominations page, at least through two weeks ago. On the bad side,

1. Secretary of Commerce: a month ago, Penny Pritzker was reported to be the candidate for this opening, which has existed since June. Since then, nothing much. Can Barack Obama make it a full year without nominating anyone for this cabinet post?

2. Secretary of Transportation Ray LaHood announced in January he would leave when his successor was confirmed. Good luck with that! Two months plus later, no nominee, let alone confirmation.

3. United States Trade Representative is a cabinet-level post. This one is vacant since January.

4. Then there's the Small Business Administration. Outgoing administrator Karen Mills is apparently staying on until someone is in place...Good luck with that! She resigned two months ago;

5. I have no idea what's happening with subcabinet executive branch nominations. I'm guessing it's nothing good; there certainly haven't been a lot of subcabinet nominations this year, and I'm guessing that plenty of people below the cabinet level have moved on. Hey, reporters: there's probably a story here! In fact, there are probably lots of stories here!

In the meantime, I'll end with the question: what's the worst unfilled spot? I know I have some readers who follow these things closely, either government-wide or for specific agencies or issue areas -- where has the administration failed to nominate anyone for the longest, or for an extended period for a key position?

Elsewhere: Teens Vote, More

New column up at the Prospect today supporting teen voting. Regular readers know that I've been on this for a while -- this one is primarily about just dropping the voting age a couple years.

Speaking of old themes, I hit Mitch McConnell and the GOP for exec branch nominations obstruction over at PP today.

Wednesday at PP I said that tax reform is the new repeal-and-replace, and made an actual prediction that there won't be a tax reform bill this year (or at least a scoreable, revenue-neutral one).

And then yesterday it was the House Republicans, in one amazing quote.

Crazy, or Crazy Like a Fox?

Kevin Drum has a conniption because....well, I better tell this in order. First, the TSA announces they're going to relax the restrictions on stuff you can take onto an airplane -- including a bunch of fairly boring stuff such as a bunch of sports equipment, but also including small knives. Second, like clockwork, a politician decides to demagogue the issue: knives?!? On airplanes?!? In this case, the first-off-the-mark pol appears to be, no surprise, Chuck Schumer. Which is where Drum (and presumably other critics of "security theater") come in, hitting Schumer and defending the (relatively more) sensible TSA.

Fair enough! I had noticed the knife thing when it was announced last week, and I expected a grandstanding politician to join with the flight attendants in complaining about it.

Here's what I wonder, however. The hardest thing in the world is to relax safety restrictions. No matter how stupid they are, or how pointless, or even how counterproductive, there's always a risk that something will go wrong and the person who eased off will be blamed. It doesn't even have to be directly related; it's always easy to toss the blame on the person who was removing the restrictions (not concerned enough about safety!). And no, the Kevin Drums and James Fallowses of the world are a tiny minority when it comes to this. For anybody, when it comes to avoiding blame on security, the safe bet is always to ratchet up, and never never never to ratchet down.

So what I've wondering is whoever is making this happen over at TSA is actually really smart about that, and added "knives" to a collection of innocuous stuff to draw fire away from everything else. Not that I'm saying small knives should be banned, or even that TSA thinks they should be banned. Just that it's probably a viable bureaucratic strategy to toss in one item on the list that politicians can go after, thus allowing everything else to go into effect.

Well, probably not. And I'm not expert, but on the substance I'm sure Drum is right. But if the next step for the TSA is to announce that they're going to stop making people take off their shoes and also allow in very small amounts of explosives...well, whatever it takes, right?

Catch of the Day

Goes to Theodoric Meyer for an excellent reported piece on executive branch vacancies. Guess what? There are more at this point of the Obama Administration than at similar points during the Bill Clinton and George W. Bush presidencies (via Goddard). Not an overwhelming difference, but still a real one.

Meyer does a good job of not only detailing the difference, but pointing out the consequences of these missed opportunities:

The lack of appointed leaders can create problems. Too many vacancies can put agencies “in stand-down, waiting for policymakers to show up,” said Terry Sullivan, a political science professor at the University of North Carolina who has studied appointments.

Acting heads of agencies “don’t make any big decisions,” said Cal Mackenzie, a professor of government at Colby College who has studied appointments since the 1970s. “Your authority is not going to be recognized in the same way a Senate-confirmed appointee is going to be recognized.”

Meyer is absolutely correct that both Obama and the Senate are at fault. As far as what can be done, regular readers know my suggestions: more presidential attention to appointments; a lot less vetting from both the president and the Senate; and, as I argued again today, simple-majority cloture for executive branch nominations.

The first step, however, is to identify the problem and to realize it's important and has important consequences. So: nice catch!

Senate Reform and Blame for Nullification

Scott Lemieux blasts Democratic Senators today because they left the filibuster in place, thus allowing GOP nullification to continue in the case of the CFPB.

I have mixed feelings on this one, but to say that "the majority of the blame belongs" to Senate Democrats is wrong. The majority of the blame, if you need to apportion it, belongs to Senate Republicans who are practicing Constitutional hardball by ignoring the norms and precedents of the Senate and the political system. The problem with Constitutional hardball is that the only rational response is (1) for the other side to equally exploit every ambiguous rule, and (2) for the other side to attempt to codify things that worked reasonably well by norm. Neither of which is very healthy -- finding the perfect rules is usually pretty difficult. Basically, it's awful for the polity, and for democracy, and it's important to call out the people who are creating the Constitutional-level problem. Remember, it was certainly possible Republicans could have had a majority in the Senate now, and if so filibuster reform would do nothing about nullification -- but it would still be outrageous for a Senate majority to refuse to confirm any possible nominee for CFPB or other government agencies in order to shut them down.

Beyond that, I'm all for simple majority confirmation of executive branch appointments. As one who does believe that the best Senate would preserve a lot of influence for individual Senators and would limit the influence of the majority party, I still see no reason at all for supermajority confirmation on these nominations.

So I think that the Democrats were wrong not to press for it.

However, the blame here is shared by the person who has the institutional incentive to care about executive branch appointments: the President of the United States. Barack Obama has been pretty much AWOL on this. And while he obviously cannot order the Senate to reform, he certainly could press Democratic Senators to make exec branch confirmation easier; he also can bargain with Senate Republicans, including (to the extent that the courts will still let him) threatening a much more extensive use of recess appointments. Granted, that's more difficult now than it was in 2009-2010, but then again Obama didn't use them much then, either; nor did he make a public case that routine partisan filibusters of these picks is unprecedented and outrageous. No, a public case won't get most Americans to care about it, but it would certainly raise it higher on the priority list of Democratic activists and Democrat-aligned interest groups, and Senators listen to those folks.

The other point that's important to make (again, and again) is that there's no reason at all that Democratic Senators can't go back and threaten, now, that they'll revisit Senate reform -- soon -- if nullification continues. Reid should threaten it, and Obama should press for it. It doesn't matter that they haven't solved it yet; the problem continues, it's fairly easy to solve, and Democrats shouldn't tolerate it.

Going With Their Strength

I'm mostly over a Greg's place today, but I'll do a quick post here based on a twitter exchange...it's in reference to Ted Cruz's questioning of Chuck Hagel today, which featured a bunch of dubious Hagel quotes.

So I said: "GOP takeaway from 2012 seems to have been: wow, we need more campaigns built around out-of-context quotes"

To which Matt Yglesias had the sensible reply: "It’s a kind of hammer/nail issue, right? They’re really good at drawing attention to out of context quotes."

Yeah, that's just about right.

I suppose I can also do the "elsewhere" stuff here, since it's relevant: at Plum Line I said that the hearing won't matter much but that the question is whether Hagel will have 60 votes; oddly enough several people are treating the possibility of a filibuster as if it was 1990 and that Republicans might just let him win with 55 votes. And at PP I talked about what confirmation is supposed to be for.

Catch of the Day

To former Ambassaror Christopher Hill, who wrote a nice, concise column about the broken executive branch nomination and confirmation process (via Wonk Wire).

The key point here is that there are two ways in which the process is broken, and they really aren't all that closely related. The one we've all been talking about a lot, what with Senate reform in the works, is the difficulty nominations have had on the floor of the Senate. Holds, successful partisan filibusters sustained over cloture votes, and slow-walking filibusters that can't beat cloture but chew up too much time -- they're all real issues, and one would hope that Senate reform could smooth the process. I've been advocating for simple-majority cloture and for help on post-cloture time (perhaps use-it-or-lose-it rules, perhaps the Udall-Merkley idea of severely limiting post-cloture time).

But that's only the very final stage of things. As Hill makes clear, even if nominations sailed through from the committee stage to the floor and confirmation, the process up to that point is a disaster:

Today, any nominee to a position requiring Senate confirmation can expect to spend many hours listing past places of residence, attaching tax returns, detailing family members’ campaign contributions, and answering questions about the employment of domestic help or gardening services and whether such employees were legal, tax-paying US residents. The vetting process will even go back to one’s teenage years – all to ensure that anything that the Senate’s own investigators can find is known before the nomination is formally submitted.

During my career, the Senate confirmed me five times. Each time, the vetting essentially started from scratch. In addition to the countless forms, lengthy questionnaires, and background investigations, there was an interview with a paralegal whose job was to ferret out any information that might conceivably bear on the nomination.

As Hill points out, this can easily be a grueling year-long (or longer) ordeal -- for a job which the nominee may only intend to fill for two or three years.

It's nuts! I'll say it again: both Congress and the White House should agree to dramatically scale back the vetting. Way, way, back. Even if it proves impossible to clear up the mess on the Senate floor, there's absolutely no excuse for overvetting. It just takes some real presidential initiative to reverse the long-term inertia on this one. Which we haven't yet seen from this president, but I'll hold out hope that things may change in the second term.

Meanwhile: nice catch!

Senators Doing It Right

Chuck Schumer today finally said that he would support confirming Chuck Hagel for Secretary of Defense. This set off plenty of guffaws on the twitter machine, as savvy journalists pointed out that of course a leading, loyal, partisan Democrat would support Barack Obama's nominee for a cabinet position.

And, yes, that's true as far as it goes.

But the focus on whether Hagel will be confirmed (and he'll still need some Republican votes, or else a GOP willingness to allow confirmation by simple majority) misses that what Schumer was up to was a perfectly legitimate and meaningful part of the nomination/confirmation process; in fact, it's exactly how the process is supposed to work.

That is, Schumer had some concerns about Hagel and perhaps about administration policy more generally, and he used the confirmation process to press Hagel for commitments about the things Schumer was most concerned about. In this case, it was mostly making sure Hagel was on board with stated administration policy (and, perhaps, that stated administration policy matches actual administration policy). At any rate, technically Schumer could derail the nomination or at least severely delay it by deploying all the tools Senate rules give him; in reality, however, what those tools do is give individual Senators leverage to press nominees on specific issues of interest. 

That's how it should be; executive branch agencies and departments are supposed to be responsive to both Congress and the White House. And the whole idea of single-member (or I suppose dual-member in the Senate) districts is that various different discreet interests will be represented in the way that they really might not be by the president. Granted, I'm not sure how much actual policy commitment is going on in this case and how much playing to the cameras, but that's okay, too.

When it comes to Senate reform, that's why I have no problem at all with holds on nominations. Of course, holds are backed up by the ability of individual Senators to object, and the Majority Leader could move ahead using the cloture process. But as long as Senators who place holds are seeking to actively represent some particular interest (and not just a partisan opposition), then I see no problem with it. 

On the other hand, there's really no reason that a minority should be able to permanently defeat an executive branch nominee -- so cloture should, in my view, only require a simple majority in these cases. 

And again: the interest of the minority party is mostly just position-taking, which is perfectly served by opposing the nominee and then losing a vote. 

All of which is just to say that this is the easiest part of Senate reform: for executive branch nominations, all that's really needed is to reduce the cloture requirement to a simple majority. Toss in reduced (or use-it-or-lose-it) post-cloture time, and you've solved almost all of the problem.