[Senate Hearing 118-390]
[From the U.S. Government Publishing Office]
S. Hrg. 118-390
SENATE PROCEDURES TO CONFIRM NOMINEES
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HEARING
BEFORE THE
COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
TUESDAY, JULY 30, 2024
__________
Printed for the use of the Committee on Rules and Administration
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
56-476 WASHINGTON : 2024
COMMITTEE ON RULES AND ADMINISTRATION
SECOND SESSION
AMY KLOBUCHAR, Minnesota, Chairwoman
CHARLES E. SCHUMER, New York DEB FISCHER, Nebraska
MARK R. WARNER, Virginia MITCH McCONNELL, Kentucky
JEFF MERKLEY, Oregon TED CRUZ, Texas
ALEX PADILLA, California SHELLEY MOORE CAPITO, West
JON OSSOFF, Georgia Virginia
MICHAEL F. BENNET, Colorado ROGER WICKER, Mississippi
PETER WELCH, Vermont CINDY HYDE-SMITH, Mississippi
LAPHONZA R. BUTLER, California BILL HAGERTY, Tennessee
KATIE BOYD BRITT, Alabama
Elizabeth Farrar, Staff Director
Jackie Barber, Republican Staff Director
C O N T E N T S
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Pages
Opening Statement of:
Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
State of Minnesota............................................. 1
Hon. Deb Fischer, a United States Senator from the State of
Nebraska....................................................... 3
Jenny Mattingley, Vice President of Government Affairs,
Partnership for Public Service, Washington, DC................. 5
Sean M. Stiff, Legislative Attorney, Congressional Research
Service, Washington, DC........................................ 7
Elizabeth Rybicki, Specialist on Congress and the Legislative
Process, Congressional Research Service, Washington, DC........ 8
Prepared Statement of:
Jenny Mattingley, Vice President of Government Affairs,
Partnership for Public Service, Washington, DC................. 20
Sean M. Stiff, Legislative Attorney, Congressional Research
Service, Washington, DC........................................ 39
Elizabeth Rybicki, Specialist on Congress and the Legislative
Process, Congressional Research Service, Washington, DC........ 52
For the Record:
SEA: New Report Highlights Importance of Career Executives for
Government Continuity.......................................... 70
Questions Submitted for the Record:
Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
State of Minnesota to Jenny Mattingley, Vice President of
Government Affairs, Partnership for Public Service, Washington,
DC............................................................. 72
Hon. Michael Bennet, a United States Senator from the State of
Colorado to Jenny Mattingley, Vice President of Government
Affairs, Partnership for Public Service, Washington, DC........ 75
Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
State of Minnesota to Sean M. Stiff, Legislative Attorney,
Congressional Research Service, Washington, DC................. 77
Hon. Michael Bennet, a United States Senator from the State of
Colorado to Sean M. Stiff, Legislative Attorney, Congressional
Research Service, Washington, DC............................... 78
Hon. Amy Klobuchar, Chairwoman, a United States Senator from the
State of Minnesota to Elizabeth Rybicki, Specialist on Congress
and the Legislative Process, Congressional Research Service,
Washington, DC................................................. 80
Hon. Michael Bennet, a United States Senator from the State of
Colorado to Elizabeth Rybicki, Specialist on Congress and the
Legislative Process, Congressional Research Service,
Washington, DC................................................. 80
SENATE PROCEDURES TO CONFIRM NOMINEES
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TUESDAY, JULY 30, 2024
United States Senate
Committee on Rules and Administration
Washington, DC.
The Committee met, pursuant to notice, at 2:45 p.m., in
Room 301, Russell Senate Office Building, Hon. Amy Klobuchar,
Chairwoman of the Committee, presiding.
Present: Senators Klobuchar, Fischer, Merkley, Butler, and
Wicker.
OPENING STATEMENT OF HONORABLE AMY KLOBUCHAR,
CHAIRWOMAN, A UNITED STATES SENATOR FROM
THE STATE OF MINNESOTA
Chairwoman Klobuchar. All right. I call to order this
hearing of the Rules Committee on Senate Procedures to Confirm
Nominees, or get them confirmed. That is our goal. I would like
to thank Ranking Member Fischer and our colleagues for being
here, as well as our witnesses, Jenny Mattingley from the
Nonpartisan Partnership for Public Service, as well as Sean
Stiff, and Elizabeth Rybicki of the Congressional Research
Service. Thank you all for joining us.
Today we are going to hear from these three nonpartisan
experts about the increasing amount of time it has been taking
for the Senate to confirm nominees from Presidents of both
parties. We want to make that clear from the beginning. This is
not actually any kind of a partisan fight we are engaging in.
Senator Fischer and I get along quite well. We are looking at
this in the context of now and in the future and how this has
been getting worse and worse and worse, regardless of party,
and the impact these delays have on our government, have on the
people that we want to recruit to be in our government, and
what we can do to address it.
The facts speak for themselves. In recent decades, it has
taken longer to confirm nominees for each successive President.
According to the Partnership for Public Service, in the first
two years of the current Administration, it took more than 156
days, on average, to confirm each executive branch nominee, up
from 107 days during the Trump administration, 92 days under
President Obama, and nearly three times as long as the Clinton
administration, which was 56.8 days.
As the Senate spends more of its time working on
nominations, this leaves less time for legislating on issues
that are important to the American people--difficult issues
that sometimes take days to resolve bills. More than 55 percent
of Senate votes in the first two
years of both President Biden's and President Trump's terms
were on nominations, which is over a sixfold increase compared
to the average under the four previous Presidents, which was
8.5 percent of votes.
The number of cloture votes--the votes we take to end
debate on a nomination--has also skyrocketed, with more than
200 so far for executive branch nominees under our current
President and 170 under his predecessor, a dramatic increase
from the total of just 20 under both Presidents George W. Bush,
who had 9, and Clinton at 11. That is 20 for two Presidents,
and now we are at over 200 and before that--the last
administration had 170.
There are a lot of other statistics that I know you want to
hear me roll off here, but one thing is clear and it is very
straightforward: under both parties, we are spending a lot more
time voting on nominations than in the past, and it is taking
more time under each administration. Pretty soon we are going
to become a full-time employment agency. Although we do not
really even discuss the applicants, we just go in and vote, and
go in and vote.
The time the Senate is spending to confirm nominees not
only impacts our work and legislation, but also delays a
President--no matter his or her party--from filling important
positions.
Here is what that looks like. While the Secretary and
Deputy Secretary for five key Cabinet departments--Commerce,
Defense, Energy, State, and Treasury--took an average of 18 and
67 days, respectively, to confirm during this Administration,
other positions at those departments, like undersecretaries and
assistant secretaries--the people that you may not read about
in the newspaper--they took more than 350 days.
Significantly, it is taking longer for nominees during a
President's first year in office, when they are trying to
jumpstart their work on key issues, to get confirmed. The
average time taken to confirm these nominees in the current and
previous administrations was nearly triple what it was under
President Reagan.
We know that there are qualified people interested in
serving in government regardless of party, and you can leave
talented people in limbo for literally a year, years, or at
least months, creating uncertainty in their lives. It is a
reason a lot of people do not even want to try doing it. That
is not what we want in our country.
The good news is there are actions we can take to improve
things. One idea is to change the rules of the Senate so we
could consider multiple nominees at the same time. We would
still have a vote, but we would do what we call blocking them
together. We would not do the top Cabinet people that way, but
you could do a group within a department that way. That is
something that Senators King and Cardin and I have been working
on to bundle up to 10 nominees at once--we are not talking
about 100--10 nominees at once.
This would have allowed the 27 Department of Defense
positions we confirmed in the first year of the current
Administration--not including the Secretary of Defense--to be
confirmed in three sets of votes during a single week. What a
game changer for the Defense Department and our country's
security.
We could also consider an idea such as one Senators
Lankford and Blunt proposed in 2019, so that either side could
yield back
time on the Senate floor if they wanted final votes to happen
more quickly by dividing the two hours of time after cloture
equally between the parties.
There are also ideas like reducing the number of positions
that require Senate confirmation, which is now more than 1,200.
I know Chairman Peters on Homeland Security has been interested
in this topic.
There is precedent for bipartisan efforts in this area like
in 2011, when the Senate passed two proposals with overwhelming
support from a bipartisan working group led by Senators Collins
and Schumer with Senators Lieberman and Alexander--one to
expedite consideration of certain nominations by a vote of 89-
8, and one to reduce the number of Senate-confirmed positions
by 163, by a vote of 79-20. No, it is not much when you are
dealing with 1,200, but it is still 163 people that can
actually get into the jobs. I supported both these proposals at
the time, as did Leader McConnell and Senator Wicker, who are
on this Committee.
What we are here to discuss today is not about giving an
advantage to one party or the other. That is why it is good to
do it when the election is in flux, and with bipartisan
support. These options could be designed to take effect in the
future when you do not know who is going to be the President,
regardless of the outcome of this election.
The Framers recognized the importance of the Senate's role
to provide a check on the executive branch by requiring advice
and consent over key positions in our government. As the Rules
Committee, it is important that we take a close look at Senate
procedures and how they are working, and that we are willing to
partner across the aisle on commonsense measures to improve how
we do our work on behalf of the American people.
The only other possibility, if we are not able to do this
together, is that one party the other can just do it by
invoking what we call the nuclear option--that has happened in
the past. I would rather do this together, but of course, that
is also a possibility, and it would at least speed things up.
Whatever it is, what we are doing now is not working, and
we are spending all our time on being a full-time employment
agency, when there are so many pressing issues before the
United States Senate.
Thank you for our witnesses for being here. I will now
recognize Ranking Member Deb Fischer for her opening. Thank
you.
OPENING STATEMENT OF HONORABLE DEB FISCHER, A UNITED STATES
SENATOR FROM THE STATE OF NEBRASKA
Senator Fischer. Good afternoon. I would like to thank
Chairwoman Klobuchar for holding this hearing, and I would also
like to thank our three witnesses for being with us.
Today we are here to learn about the nomination process in
the United States Senate, changes to the process, over time,
and what, if any, changes may improve that process.
In taking up a nomination, the Senate is carrying out its
constitutional responsibilities. First, the Appointments Clause
of the Constitution explicitly directs the Senate to provide
advice and consent. Second, nominations provide the Senate an
opportunity for
oversight, and while oversight responsibilities are not
explicit in the Constitution, the Supreme Court has said they
are inherent in the legislative process, set forth by Article
I.
The Constitution does not subject every Presidential
appointment to the advice and consent process. It only requires
advice and consent for the principal officers. However, the
Constitution does allow Congress to decide whether to apply
advice and consent to inferior officers. I am sure our experts
from the Congressional Research Service will explain the
difference between a principal and an inferior officer.
But the important thing to remember is that these
individuals will be charged with carrying out the President's
policy agenda and the laws passed by Congress. These
individuals will be accountable to Congress for the agencies
they have been appointed to manage.
The oversight process is a valuable oversight tool. It
provides leverage to get responses to congressional oversight
requests from agencies that might otherwise be reluctant to
share that information. It is also a chance for the Senate to
speak directly to nominees about Senate priorities.
Outside of the Senate's constitutional responsibilities,
the Senate has a tradition of robust debate and protections for
the minority party. Those traditions apply to the nominations
process, as well. When an individual Senator holds a nomination
through the unanimous consent process, that Senator is engaging
the Senate's tradition of robust debate. Conversations
surrounding the Senate's confirmation process have been going
on for decades. There have been large and small efforts to
reform the process over the years. The last large-scale change
came in the 112th Congress and removed 163 positions from
Senate confirmation and created the Privilege Calendar.
Those conversations continue today. Just last week, Senator
Grassley and Senator Cortez Masto introduced a bipartisan bill
that would require Senate confirmation for the Director of the
Secret Service. It is a call to subject that director to
greater oversight after the assassination attempt of President
Trump. While this bill only applies to one position, it is an
example of how oversight concerns can drive changes to the
nominations process.
It is also an illustration of why proposed changes to the
nomination process must be carefully and thoughtfully
considered. The nominations process must balance the
constitutional responsibilities of advice and consent and
oversight and traditions of the Senate, with the desires of an
administration to fill positions quickly.
I look forward to today's testimony. Thank you, Madam
Chair.
Chairwoman Klobuchar. Thank you, Ranking Member Fischer.
I will introduce our witnesses, two of them, and then
Senator Fischer will introduce Mr. Stiff. Thank you.
Our first witness is Jenny Mattingley, Vice President for
Government Affairs at the Partnership for Public Service. She
previously served with the Office of Management and Budget and
as founding director of the White House Leadership Development
Program. She received her bachelor's degree from Whitman
College and her master's from GW University.
Our next witness is Elizabeth Rybicki, a specialist on
Congress and the legislative process, also at CRS, where Sean
Stiff also
works. She first began her career at CRS as an intern, and
after time with the National Archives and Records
Administration returned to CRS in 2002. She received her
bachelor's degree from Dartmouth College and her doctorate from
none other than the University of Minnesota. Excellent choice.
Ranking Member Fischer.
Senator Fischer. I thought you were going to have me
comment on the excellent choice.
Chairwoman Klobuchar. No, I was going to--you could do
that.
Senator Fischer. I will say very good choice.
Chairwoman Klobuchar. We will not go over that Nebraska-
Gophers game I attended.
Senator Fischer. Stop. Stop. Do not be harsh.
Chairwoman Klobuchar. Go ahead.
Senator Fischer. Mr. Stiff, welcome. Mr. Stiff is a
legislative attorney for the American Law Division of the
Congressional Research Service. He principally covers
appropriations law, federal credit programs, government
organization, oversight, and related constitutional issues. He
joined CRS in 2019, after practicing litigation with an Ohio-
based firm on a broad range of federal and state legal matters.
I welcome you here today and thank you for your information
you are going to provide us with.
Chairwoman Klobuchar. If the witnesses could rise and raise
their right hand.
Do you swear that the testimony you are about to give is
the whole truth, and the truth, and nothing but the truth, so
help you God?
Ms. Mattingley. I do.
Mr. Stiff. I do.
Ms. Rybicki. I do.
Chairwoman Klobuchar. Thank you. You can all be seated, and
Ms. Mattingley, you are recognized for five minutes.
OPENING STATEMENT OF JENNY MATTINGLEY, VICE
PRESIDENT OF GOVERNMENT AFFAIRS, PARTNERSHIP FOR PUBLIC
SERVICE, WASHINGTON, DC
Ms. Mattingley. Chairwoman Klobuchar, Ranking Member
Fischer, and Members of the Committee, I am with the
Partnership for Public Service, a nonpartisan, nonprofit that
focuses on building a better government and stronger democracy.
The Partnership is home to the Center for Presidential
Transition, a nonpartisan source of knowledge and resources on
transitioning of government from one administration to the
next.
One specific area of focus for our work is the role that
strong leadership plays in effective agency performance and
service delivery for your constituents. Senate-confirmed
appointees are crucial to that leadership.
Thank you for the opportunity to speak with you today about
the Senate confirmation process. As you know, this is a
fundamental role of the Senate, as enshrined in Article II of
the Constitution. This process is meant to give the Senate a
strong role in assessing the quality of nominees for the most
critical appointments and to
serve as a crucial part of the checks and balances between the
branches.
But it has become unworkable and is likely to get worse.
The data tells an eye-opening story. Between 1960 and 2020, the
number of Senate-confirmed positions increased by over 70
percent, from 779 to around 1,340. In President Reagan's first
term, it took an average of 49 days to confirm his nominees.
For President Trump's first term is soared to an average of 160
days, and now, for the first term to date for President Biden,
that average is 182 days, an almost four times increase.
In the 1990's, over 85 percent of votes were on
legislation, very few on nominations. Today, over 60 percent of
votes are on nominations. During the 1990's and early 2000's,
there were only 35 cloture votes total on executive nominees.
Since then there have been 425 cloture votes on nominees.
What you have experienced as Senators, and what our
research confirms, is that filling these positions is not just
an issue between Election Day and early into a new
administration. It is a major challenge throughout the term of
any modern presidency.
Delays in getting leadership in place have ripple effects
across our government and ultimately impact the people
government serves. Under the current dysfunctional system, each
stakeholder in the process loses--the Senate, the executive
branch, the public, and individuals who step up to serve our
country as appointees.
For the Senate, the time spent processing nominations
clearly eats into time it could be spending on legislative and
other priorities. Potential appointees undergo an appropriately
intense vetting process but face uncertainty of how long the
confirmation process will take and if their nomination will be
considered at all. To make this investment and have their
lives, as well as that of their families, stuck in confirmation
limbo, discourages qualified individuals from wanting to serve.
For agencies, the lengthy vacancies slows decision-making,
long-term strategic planning, modernization efforts, and
undermines employee morale. This harms the performance of
agencies and impacts services, from veterans' care to support
for American's farmers. Nowhere is that clearer than the
national security space. After the horrible attack on our
country on September 11, 2001, the bipartisan commission tasked
with investigating the attack raised alarm about vacancies in
top national security positions in a President's first year,
and recommended that these positions be expedited for
consideration. In 2001, only 57 percent of top national
security positions were filled on the day of 9/11, yet 20 years
later, on September 11, 2021, only 27 percent of those
positions were filled. While that raised to 67 percent by the
end of the calendar year 2021, we are clearly falling short of
the 9/11 Commission's call to action.
It is clear that the confirmation process needs to be
reformed to preserve the Senate's constitutional role of advice
and consent while also providing reasonable, efficient paths to
confirmation for qualified individuals. Key areas of
consideration offered in my written testimony include
developing a bundling model for nominations to allow for at
least some nominations to be batched together for a final vote
on the Senate floor; improving the Privileged Calendar;
and pursuing other changes to Senate processes for executive
branch nominations.
Just as in 2011, when then leaders for the Rules Committee,
Senator Schumer and Senator Alexander, led confirmation reform
efforts, it is imperative to pair reduction in the overall
level of Senate-confirmed positions with any process changes.
If not, any process reforms achieved will be diminished by the
unwieldy number of positions subject to confirmation.
Improving the Senate confirmation process is not just a
good government initiative. It is a national security, public
health, and economic imperative. Our government needs capable
leaders to address the country's most urgent needs and to act
in moments of crisis.
Thank you again for your focus on this important issue. We
look forward to working with you to find solutions to these
tough challenges.
[The prepared statement of Ms. Mattingley was submitted for
the record.]
Chairwoman Klobuchar. Very good. Thank you very much.
Mr. Stiff.
OPENING STATEMENT OF SEAN M. STIFF, LEGISLATIVE
ATTORNEY, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, DC
Mr. Stiff. Thank you, Chairwoman Klobuchar, Ranking Member
Fischer, and Members of the Committee. My name is Sean Stiff. I
am a legislative attorney in the American Law Division of the
Congressional Research Service, and I am honored to testify
here today on the Appointments Clause of the United States
Constitution and the Senate's advice and consent function.
The Appointments Clause appears in Article II, Section 2.
It begins by stating that President shall nominate, and by and
with the advice and consent of the Senate, shall appoint
Ambassadors, other public ministers, and consuls, judges of the
Supreme Court, and all other officers of the United States
whose appointment is not provided for elsewhere in the
Constitution.
Writing in April 1788, Alexander Hamilton argued that
giving the President the sole responsibility to pick a nominee
would instill in the President a livelier sense of duty, and
giving the Senate the sole power to then confirm a nominee
would restrain the President's choice.
Now the Senate does not need to confirm all officers, and
that is because the clause continues by recognizing a class of
officers called ``inferior'' officers, for whom Senate advice
and consent is the default method of appointment but not the
only method. The clause says that the Congress may, by law,
vest the appointment of such inferior officers as they think
proper, in the President alone, in the courts of law, or in the
heads of departments.
If Congress chooses to reexamine an existing Senate
confirmation requirement--and there are hundreds of existing
statutory positions that do call for advice and consent--
Supreme Court precedent helps identify Congress' legal
discretion in this regard. That precedent distinguishes
officers from non-officers and principal officers from inferior
officers.
Deciding whether an individual is an officer determines
whether the clause applies at all. An officer holds an office.
The court has said that holding office connotes tenure,
duration, and duties that are described in statute. Contrast
that with a non-officer, who, for example, has only occasional
duties.
In addition, the court has said an officer exercises
significant authority under federal law. A non-officer does
not. We know some of the powers that count as significant
authority from Supreme Court case law, issuing a regulation,
for example.
Now if the person holds a statutory position and wields
significant authority, they are an officer, but what kind of
officer? A person is an inferior officer, the court has said,
if some other person appointed as a principal officer
supervises or directs their work. They are a principal officer,
by contrast, if no other principal officer directs their work.
The Senate must, under the Appointments Clause, confirm
principal officers. It does not need to confirm inferior
officers or non-officers.
There are potential tradeoffs for requiring Senate
confirmation when the Constitution does not. The advice and
consent function could be a powerful tool. The court has said
that the Senate's confirmation decisions are unreviewable, so
Senators can reject or confirm a nominee for most any reason.
The confirmation process allows Senators to obtain
commitments from nominees about how the nominee will conduct
themselves when in office, if confirmed, and it also gives
Senators a point of leverage with the administration who is
looking to have that nominee confirmed.
On the other hand, as we have heard, the confirmation
process can take time, both for the executive branch and for
the Senate. Some positions might go vacant as a result. Acting
officials might fill others, which a Senator might not prefer.
Whether confirmed or not, officers are subject to Congress'
broad power to inquire and to control agency funding. These
potential tradeoffs for requiring Senate confirmation when the
Constitution does not point in one direction, and Senators can
and do disagree. But what is clear, according to the court, is
that in those circumstances where the Appointments Clause does
not require advice and consent, it is up to Congress to decide
how to strike that balance.
I welcome your questions.
[The prepared statement of Mr. Stiff was submitted for the
record.]
Chairwoman Klobuchar. Thank you very much.
Next up, Ms. Rybicki.
OPENING STATEMENT OF ELIZABETH RYBICKI, SPECIALIST
ON CONGRESS AND THE LEGISLATIVE PROCESS, CONGRESSIONAL RESEARCH
SERVICE, WASHINGTON, DC
Ms. Rybicki. Thank you, Madam Chair, Ranking Member
Fischer, and Members of the Committee. I am truly honored to be
here to speak about the Senate rules and procedures for
considering nominations.
I want to tell you at the outset that there are many people
at the Congressional Research Service who work on the
confirmation
process and legislative process who have helped, and especially
Mike Greene, who has worked a lot in this area, as well, with
me.
As you know, the Senate relies on its committee system to
process the high number of nominations that it receives, and
this means the job of the committees is not just to review the
information that is received from the executive branch, like
the financial disclosure report, but also to do their own
investigations. Committees have their own questionnaires.
Committees meet with nominees, because after all, these
nominees are going to be the ones who are ensuring that the
laws are being executed the way Congress intended.
Committees have also the responsibility of holding public
hearings, right. Most nominations have hearings in which
nominees can be questioned by all Senators, and sometimes they
are even asked to commit to returning to the Senate to answer
questions as those come up.
When a committee recommends further action, that does
require the committee to meet with a majority of its members
present to vote to report that nomination. The only other way
for a nomination to be removed from committee is through
unanimous consent action on the floor. The full Senate could
discharge a committee. But otherwise a committee has to meet to
report.
Now there is a special category of nominations, as the
Chairwoman mentioned in her opening statement, of privileged
nominations. These nominations are not formally sent to
committee, and so the committee does not have to meet to report
them. But the committees of jurisdiction are still collecting
that information. They are doing the same kinds of
investigations. Once they have indicated that the information
has been gathered, then that nomination can be--it is in the
same parliamentary status as if the committee had reported.
This Privileged Nominations Calendar was a result of the 2011
bipartisan reforms that took place, that put a number of
nominations in that category.
Now, for the full Senate to act there are essentially two
routes for consideration on the Senate floor. The first, and
most common, if we look back several Congresses, is to use
unanimous consent, right, and unanimous consent, this is
cleared in advance with all personnel offices, and as long as a
Senator does not indicate that they have an objection, then
that nomination can pass rapidly on the floor.
Absent unanimous consent, then the Senate has to use its
cloture process, and the cloture process has five steps. First,
there has to be an agreement to take up the nomination. This is
a non-debatable motion. It is a simple majority vote. Once on
the nomination, the second step, you can file cloture on the
nomination. Cloture proposes to bring the nomination to a vote.
But the vote on cloture does not happen the day that cloture is
made. There is a two days of session ripening period before the
Senate votes on cloture. That is a majority vote for
nominations, but what it does is limit further consideration to
a maximum of two hours for most nominations. It is 30 hours for
the highest ranking.
The fourth step is debate, and then the fifth would be the
vote on confirmation. We have, to process a single nomination,
by the cloture process, taking up the nomination, filing
cloture, 2-day
waiting period, vote on cloture, up to two hours of debate for
most nominations, of debate, and then the vote on confirmation.
What we see in practice in the Senate is the use of
stacking motions. The vote the Senators just took before this
meeting, that was a cloture motion on the nomination. By
unanimous consent, they will be voting, after this hearing,
they will vote to actually confirm the nomination.
The stacking of cloture motions is what the Leader can do
in order to have that 2-day ripening period occur at the same
time. Yesterday the Majority Leader filed cloture on three
nominations. Those three cloture motions will ripen tomorrow.
But then from that point on they have to be considered
sequentially, absent unanimous consent. There could be a
cloture vote, by the book and under the rule there would be,
two hours later, the confirmation vote, then immediately after,
the vote on the already ripened second cloture motion, and then
up to two hours of debate before the vote on confirmation of
the second nomination, followed by the cloture vote on the
third nomination. The Senate schedules these votes by unanimous
consent agreements for the convenience of all Senators, so we
have predictability about when the vote is going to occur. But
those unanimous consent agreements reflect the terms of the
rules.
My written testimony talks about the rules changes, some of
which have been bipartisan in the Senate, most prominently the
2011 reforms. I look forward to answering your questions. Thank
you very much.
[The prepared statement of Ms. Rybicki was submitted for
the record.]
Chairwoman Klobuchar. Very good. Thank you all.
United States women just won gold in gymnastics. I just
want to point that out. Suni Lee, from Minnesota. I just want
to point that out.
Okay. Let's talk about getting gold, how we could improve
this process, move our team along, regardless of side.
Could you talk, Ms. Mattingley, about how reliance on these
acting officials impacts the work of the Federal Government,
when you do not have people that have actually been confirmed
in the jobs for sometimes years?
Ms. Mattingley. Absolutely. Thank you for that question.
One of the things we have seen, and likely you have seen, is
that many agencies rely on the use of acting officials when a
position is vacant, when it is awaiting confirmation. Agencies
often either have career officials or other political
appointees act in those positions.
One of the things we have seen, both on what I have heard
from officials who are acting, is that it is very tough
sometimes to make those long-term decisions, especially if an
agency is in need of reform, and dealing with management
challenges, because acting officials are only there for a
certain length of time.
Additionally, with vacancies for agencies and the staff
that is in agencies, they also are in a bit of a limbo because
they do not know which work is going to be carried forward once
the political appointees comes in.
Chairwoman Klobuchar. Good. Mr. Stiff, can there be legal
constraints on the actings?
Mr. Stiff. Thank you for the question. The primary statute
that provides for acting officials is the Federal Vacancies
Reform Act, and it limits the extent to which someone can
temporarily serve as an acting official in essentially two
ways. First, who can serve, and then for how long someone can
serve. There is the possibility that at some point if the
statutory time period is run, for example, then the office
would go vacant, which raises questions about whether the non-
delegable duties of that office can be exercised, and if so, by
whom.
Chairwoman Klobuchar. Right. Ms. Mattingley, just one other
quick question. What impact do you think it has in your roles
with OMB and the like on people being willing to even put their
name in, when you could have your whole family put on hold for
a year or so?
Ms. Mattingley. Absolutely. Thank you for that question. I
have certainly talked to many folks who are being considered
for positions over the years, and one of the things that they
are concerned about is whether and how long it will take them
to get confirmed. When I think about it, I was talking to a
group of technologists the other day, senior folks who work on
cyber, on AI, some of the big issues agencies are facing. They
were highly concerned about whether they would need to relocate
their families, especially since they have aging parents to
care for, as well as spouses to consider.
It becomes this limbo, if you will, and this uncertainty of
how the process works. It becomes a really personal, tricky
decision to getting these qualified folks to step up.
Chairwoman Klobuchar. Exactly. Ms. Rybicki, talking about
solutions here, this idea of bundling. Could you talk about
what the process now is with multiples and why it takes so long
and how they end up--when I look at this more non-controversial
ones, they end up getting confirmed anyway, with nearly a
unanimous vote, and if we could just put them together you
could have literally the same person could vote against the
group of ten, or can vote against each one. They could still
have their voice heard in that way. But we would not have this
crazy situation.
Do you want to answer that?
Ms. Rybicki. Yes, you are correct that under the current
process, while many nominations are approved en bloc, meaning
all together, that is done by unanimous consent. Absent
unanimous consent, then each nomination has to be considered
one at a time. You cannot bundle together under the current
procedure.
Chairwoman Klobuchar. We have bundled a few times here and
there, but the same person who may want to object to the same
thing would object to the bundling.
Ms. Rybicki. Well, right, even excluding some military
promotions and foreign service nominations that arrive in the
Senate and in lists of dozens or hundreds, so those are
routinely. It is about half, historically, are still passed by
unanimous consent, and a large proportion, over 80 percent of
the hundreds or so that are approved by unanimous consent are
approved in en blocs. But that is by unanimous consent only.
Chairwoman Klobuchar. Right. Right. But if you were to
change the rules somehow, with some thresholds you get to your
blocking, probably with the committee chairs agreeing to it. I
just
keep thinking--Senator Wicker had to walk out for a call--the
Department of Defense argument that I made with these three
groups of ten. You could get them done in a week instead of the
months and months and months it took.
Ms. Mattingley, do you think the blocking idea would be an
improvement?
Ms. Mattingley. We do think that it is a very promising
idea to look at batching nominees together so that there is one
vote for several nominees at a time, particularly those that
are non-controversial, and both looking at ones that are
already on the Privileged Calendar or looking across other
nominees.
Chairwoman Klobuchar. Just one last question because my
colleagues are here. 2011, successful in the Privileged
Calendar--and also was that the time some of them were omitted
then? What made that successful, that that worked back then?
Ms. Mattingley. What made it successful is that there were
multiple Senators who took a look at the data, took a look at
how the process was impacting the Senate, impacting agencies,
and determined that a solution at that point needed to be made.
It was a bipartisan effort, as mentioned earlier.
Really the data at that time was already showing trend
lines that the process was getting slower and slower, and that
data has just gotten worse from here in terms of length.
Chairwoman Klobuchar. Okay. Thank you. Senator Fischer.
Senator Fischer. Thank you, Madam Chair. Mr. Stiff, you
told us a little bit about the principal officeholder and the
inferior officeholder, and just what identified them as such,
that obviously an officer holds and office. You said it
exercises significant authority, including regulations.
If Congress did decide to remove a position from advice and
consent, how would Congress signal its view that the position
does not fit within that principal definition?
Mr. Stiff. Ultimately the question of whether a position is
a principal officer is determined by the duties and
responsibilities of that office and the relation to other
officers. One way to signal it, in sort a non-binding sense,
would be a finding section or a Sense of Congress expressing
the view of Congress that this is not a principal officer. More
directly, pairing the change in the appointment method with
changes in the relationships of that office to other officers,
to make them as a legal matter or a principal officer, make
their work subject to direction and supervision by someone
else.
Senator Fischer. In the findings, basically we need a
checklist, like you provided, that would define what a
principal is, what an inferior officer is. Would you recommend
something that concrete to be in the legislation? What would
you do?
Mr. Stiff. You could use, and certainly Congress does use,
Sense of Congress provisions. They are not typically deemed
operative, though. At the end of the day it is still going to
be a legal question of whether the substantive authorities of
the office are those of the principal officer or the inferior
officer.
Senator Fischer. If we would remove a principal officer
from the process, as we have it now, for advice and consent,
what would be possible consequences of that? Do you see
positives and negatives? What do you see as consequences?
Mr. Stiff. I can sort of speak for the legal consequences
of taking someone who, as a legal matter, is a principal
officer and making them appointable in some way other than
advice and consent. In that circumstance there would be the
potential that if a party with standing or a party that is the
subject of an enforcement action raises an Appointments Clause
argument saying that this is, as a legal matter, a principal
officer, but they are improperly appointed, the court has said
that a person in that position exercises authority that they do
not lawfully have.
In past cases we have seen the Supreme Court, for example,
set aside actions of officials who are acting in a way that was
inconsistent with their method of appointment.
Senator Fischer. How would the court determine standing in
a case like this? Would it depend on what position it would be
for, what department it would be in? How would that be
determined, would you wager a guess on?
Mr. Stiff. The standing analysis is whether the person
bringing or maintaining the suit suffered an injury that is
traceable to the challenged government action. Oftentimes,
though, these Appointments Clause issues are raised as defenses
to actions that are brought by the government itself.
Senator Fischer. Would that be difficult to be able to
prove that you would suffer from that?
Mr. Stiff. I think it depends on the case. But when the
court has taken up Appointments Clause issues in recent years
it has focused on sort of the merits question of whether this
is a properly appointed officer.
Senator Fischer. Okay. Thank you.
Ms. Rybicki, in the past when we have watched the Senate
consider nomination reform there have been advantages and
disadvantages that have been considered. What do you think
would be advantages and disadvantages that we should consider
when we are looking at future effort in reforming the
nomination process?
Ms. Rybicki. Yes. When you look at the history of past
efforts to change procedure you can see that there is general
agreement on the goal of the confirmation process in that
generally Senators want the vacancies to be filled, right.
There is not a Senator saying that we want to this to take
forever. There is an efficiency goal.
There is also, though, a goal of meeting the advice and
consent role of the Senate, right. Senators do not want the
Senate to be a rubber stamp, so there is an important
evaluation rule.
But what you see from a procedure prospective, we have got
these two goals of efficiency and evaluation, and what really
matters and what we see from the history of this is what the
details of that procedural reform are. Because you are trying
to strike a balance where it is both letting the Senate make a
decision, right, as well as still preserving this ability of
evaluation.
Senator Fischer. When we look at the reform that took place
in 2011, that has been brought up a couple of time here, did
any of those changes result in any meaningful change at the
pace we are doing nominations currently in the Senate?
Ms. Rybicki. I defer to the excellent data by the
Partnership as well as my colleague, Barry McMillion has cut
circuit and district court nominations--if by ``pace'' you mean
length of time?
Senator Fischer. Yes.
Ms. Rybicki. Right. As we have heard, one way to measure is
how many days it takes for confirmation, right, that has
increased. But when looking at various changes, you know, it
also can be we are looking at a particular type, like could
circuit court nominations possibly go through faster than the
district court nominations, and that can be something to look
at, as well.
The 2011 reforms were ones that allowed them move without
going to committee, right, and so it did not have a process for
floor consideration. It is just about skipping that committee
step. We do see, in another study by one of my colleagues,
about 11 percent of those do get requested to be referred to
committee by one Senator. But that means for the vast majority
they are not going to committee, and the committee is not
having that meeting and voting to report.
Senator Fischer. Thank you.
Chairwoman Klobuchar. Very good. Next up, Senator Merkley.
Senator Merkley. Thank you, Madam Chair, and thank you to
both you and Ranking Member Fischer for holding this
conversation. The perspective that many of us see on
nominations is that the challenge is a reflection of almost
tribal-level warfare between the parties.
The minority, regardless of if there is a President of the
opposite party in the Oval Office, has an incentive to slow
things down, make it difficult, extract promises, regardless of
who is there, which is why right now is the right time for us
to have this conversation. We have no idea who will be in the
Oval Office. We have no idea who will be in the majority of the
Senate.
I would love--there have been three nuclear options, both
parties have engaged in it, regarding nominations. Wouldn't it
be great if this committee could really sit down and hash out
reforms, recognizing that this expanding tension in which
warfare is conducted by the minority against the President of
an opposite party is just not serving our democracy well.
Again, thank you for holding the hearing.
But the only way I see us pursuing these reforms is by that
type of conversation, when we are uncertain about who will be
in charge in the future, or it is going to happen by nuclear
option, when one side is extremely frustrated, as has happened
three times so far.
Anyway, so that says how challenging this is. I think the
stats, Ms. Mattingley, that you put forward about how many of
our votes are now on--I think it was your testimony--on cloture
votes on nominations, that 15 percent of our votes under Bush
and 14 percent under Obama in their first terms were on
nominations, and with President Trump it was 64 percent. It has
just gotten higher.
I mean, here you have 100 talented people coming together
with all their experience in the world, and we just spend an
incredibly, tediously slow nomination process instead of
putting all those talents to work on legislation to make
America better.
Senator Merkley. One of the things mentioned was the
Privileged Calendar and how it was reformed, that was intended
to work better but did not work so well, and there are some
ideas in your testimony about how we could improve that. Could
any of you elaborate?
Ms. Mattingley. I am happy to go ahead and take that one.
We do think there are a couple of ways that you could think
about reforming the Privileged Calendar currently. Right now we
could think about raising the number of Senators it takes to
refer a nominee back to committee. As mentioned earlier, the
nominees that go onto the Privileged Calendar are not going to
committee first, but a Senator can request that they go back to
committee. You could also look at making that request referral
come from a member of the committee of jurisdiction who is
going to be overseeing that.
We also think that more positions could be added. One of
the groups of positions that is on the Privileged Calendar are
part-time boards and commissions. Think about National Council
of the Humanities. There are all these boards and commissions
that Congress has created multiple positions on, and many of
those positions have advice and consent requirements from the
Senate. But a lot of these boards and commissions currently are
vacant. They do not actually have anybody sitting in there on
them.
Some of these are positions that do not need to be
confirmed, because they are not the top agency folks who are
overseeing these large agencies with significant management
experience, these are part-time folks. We could certainly look
at some of those positions, about both whether they need to be
converted to a different type of political appointment or if
they should be moved to an improved Privileged Calendar for
faster consideration.
Senator Merkley. But what I have seen in the testimony was
that the actual time for folks on the Privileged Calendar is
slower than those who go to committee, and it is slower now
than when that reform was passed. Just getting fewer people, or
more people on the Privileged list does not help us.
Ms. Mattingley. That is correct. That is why one of our
recommendations is for a lot of these boards and commissions
that are part-time, for persistently vacant positions, for
positions like chief financial officers, chief information
officers, where a vast majority are already not Senate-
confirmed--we think those are ripe for consideration of moving
to a different type presidential appointment and moving them
away from needing Senate confirmation.
Senator Merkley. Yes. Thank you. Just earlier today we were
having a conversation in Foreign Relations Committee about the
damage that is being done to our competition with China because
they have Ambassadors in place, working hard, in so many
countries, where we have so many vacancies. Just an example of
how there was a bipartisan conversation earlier today about the
damage being done to the United States' interests because of
this broken nomination process.
Somehow we have to find a way to overcome our partisan
instincts in a very partisan world, and I think now is a great
time, when we do not know who will be in charge. I am really
glad we are holding this hearing.
Chairwoman Klobuchar. Okay. Thank you. Thank you, Senator
Merkley, for your leadership in this area for so long. I am
just hoping something is going to happen where we can move on
one of these proposals, and one of these days we are going to
be victorious
because no one wants to come--they did not run for the Senate
to run an employment agency, year after year after year.
Senator Butler, you are next. Senator Butler is here with
us for a short period of time. She has a very big interest in
moving this along.
Senator Butler. Thank you, Senator Klobuchar and Ranking
Member Fischer, for today's hearing. I am sure my appearance at
today's hearing was a little curious for folks. Not only do I
take my service to the Committee seriously, and to the chamber,
but this is actually one of the areas that I am dumbfounded by.
I have been trying to understand, through conversations with my
colleagues, Committee Members, how does this work, how does
these rules get created, why do we do it this way.
To be here and to be able to ask questions here, from
people who are actually looking at this objectively, with the
intention of trying to further enable this body to do the
people's work, it was an opportunity that I could not pass up.
Senator Klobuchar appropriately characterized it. My time
here is short, and I want to have as great an impact on doing
the work of the people of California and the people of this
country, in as an impactful way as I possibly can. That being
said, I have not only been dumbfounded but have reached times
of great frustration trying to understand exactly how to do
that.
I serve on the Judiciary Committee, where many district
courts in California have vacancies, and have had longstanding
vacancies, and vacancies that truly create a delay in justice
for California residents. This is not just an exercise in
trying to understand the processes of the Senate. It truly is
about how do we do the best job that we can, for the most
people that we can, to, in my opinion, further enable the
functions of government on behalf of the people who need it
most.
Here are my questions.
There was a set of potential solutions that were outlined
in some of the documents, and in conversations that I have had
with my colleagues, solutions that have been proposed in the
past, solutions that have not yet been proposed but are under
examination.
Mr. Stiff, I just wanted to note, there was this sort of
question of reducing the number of Senate-confirmed positions,
and we have had some conversation and questions about that. I
would like to know your thoughts about Ms. Mattingley's, just
last comment, about reducing the number of positions that go to
advice and consent, or could be sort of just left to the
executive office to figure out.
You talked about a standing question. But when I think
about my service on Homeland Security, for example, and our
responsibility of oversight of the United States Postal
Service, there is a board of directors for the United States
Postal Service and then there is Postal Service commission,
both requiring hearings and the like. Talk to me a little bit
about some of those more secondary positions, like the
commission. How do you respond, or how would you apply your
response to Senator Fischer in situations where there
potentially are redundancies and positions that have been
vacant for a while, and Ms. Mattingley's sort of reference in
her last comment?
That is a lot, but I am really just trying to--I want to
understand how your opinion on standing applies across the
spectrum of duties and appointments.
Mr. Stiff. Sure. The sort of fundamental question, right,
is whether there is another appointment methods that the
Constitution allows for a given position. That is answered by
determining whether the person we are talking about is a
principal officer versus an inferior officer. I cannot speak to
any particular position here today. But in the past the court
has determined whether someone is subject to direction and
supervision by another principal officer by asking, for
example, can they be removed by that other person? Does that
other person review and have the ability to revise the
decisions they make? Do they exercise other sorts of
administrative control, like establishing procedures, that the
person we are looking at has to follow?
Those are all the sorts of direction and supervision
questions you would consider if you were looking at a given
position, to say can we change the appointment method without
running afoul with the Appointments Clause.
Senator Butler. Thank you, Madam Chair. I intend to submit
a couple of questions to the record for the----
Chairwoman Klobuchar. Okay. If you have an extra one, that
is fine.
Senator Butler. No. I will submit them to the record. I
know we are trying to move along.
Chairwoman Klobuchar. Yes. We are trying to show how we can
be efficient in the Senate.
Senator Fischer, did you want to ask anything? Okay, good.
Senator Merkley and I were just talking, in a very
constructive way, just how we really have to move on this soon
if we are going to, obviously in the fall, in September, if we
are going to make even minor changes to confirmation. It would
take a lot of people agreeing. I just think it would be so
smart. As we know, many of these have passed when we did not
know what the outcome of an election was, and as I noted, the
other alternative is one party or the other, if they end up
winning, we are just going to have to do something, because it
is just so unfair to people who are up for these positions. It
is so unfair to the country. It so hurts our competitiveness
and our security interests internationally when we hold these
off. There are a lot of Senators interested in moving on this,
so we will make it our job to try to figure out, with Senator
Fischer, if there is anything we can do before this election.
But I really appreciated your thoughtful commentary today,
and thank you for the productive hearing. I look forward to
continuing to work with my colleagues on this Committee in a
bipartisan manner to ensure the Senate functions efficiently.
We are always good when there is something sudden that comes up
we have to do, but it is grinding, day in and day out, and some
of these major issues are just left out there, where I think we
could come together on something on housing or childcare,
budget issues. It just becomes very frustrating for everyone.
With that, thanks for your ideas and your thoughtful
discussion. The hearing record will remain open for one week,
and we are adjourned. Thank you.
[Whereupon, at 3:44 p.m., the hearing was adjourned.]
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