Our Founders had the best intentions when they built “advice and consent” into the Constitution. It was created to make sure that the balance of power was maintained by empowering the Executive and Legislative branches.
In these times, however, advice and consent are being used as political tools, and only delay the President’s receiving approval for the people he wants to serve during his term. And the whole process has also become cumbersome, instead of being a procedure that allows the President to have the people in place that he will need to hit the ground running. In President Trump’s term, it’s like watching a sloth navigate a tree: slow and ponderous.
How did this process to ensure fairness become a partisan tool and become mired in the swamp of the number of people to be approved by the Senate?
Here’s the explanation of Advice and Consent” (Article II, Section 2, Clause 2):
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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 Appointments are not herein otherwise provided for, and which shall be established by Law: but 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.
The time needed to approve nominees has also greatly increased:
The confirmation system is clearly broken, with the Senate routinely taking far too long to review and vote on presidential appointees — a problem that has grown worse over time and left important jobs vacant for lengthy periods in areas ranging from national security to public health and safety.
The number of political appointees subject to Senate confirmation — more than 1,300 — has grown by more than 70 percent since 1960, while the average time to confirm nominees has nearly quadrupled since the Reagan administration, from about 49 days then to 191 for President Joe Biden as of Aug. 2, according to an analysis by my organization, the Partnership for Public Service.
One way to bypass the system is for the President to make a temporary appointment, so that at least a person is filling the position. In addition, recess appointments have been suggested, but they result in ruling out FBI background checks.
There are ways to modify the system so that the review process is faster and more efficient. One solution is to simply provide new criteria for those positions that need Senate consent. The paperwork for nominees has grown substantially, and could be reduced. And if nominees are rejected by the Senate, the renomination process could be streamlined:
Under a rule dating back to 1868, the Senate returns pending nominations to the president at the end of a session or when the Senate recesses for a period of more than 30 days, unless all 100 senators agree to waive the rule. Renomination triggers a restart of the process, slowing nominees, even those who already had been approved by the committees of jurisdiction, to move to final Senate vote. The Senate should limit the rule’s application to the end of the two-year congressional session or by raising the number of senators required to block waiver of the rule.
There are other rules that slow down the approval process:
‘There’s been a challenge in getting completed background checks and getting the Office of Government Ethics 278 form done for nominees, and that’s slowed things down for a number of committees,’ a Senate GOP aide said.
The aide said the Trump transition team’s tardiness in signing memorandums of understanding with the Justice Department to pave the way for FBI background checks and its reluctance to sign an agreement with the General Services Administration to gain access to government office space, email accounts, phones and computers have slowed down the process.
All sides in the advice and consent dealings seem to be contributing to the slow process, thus delaying the President’s interest in having all “hands on deck.”
Meanwhile, delays are frustrating and disruptive to the running of government:
Moreover, the substantial growth in delays in recent decades creates a greater burden on nominees to endure personal and professional uncertainty for months on end.
To mitigate these delays, senators should consider how to ease the administrative burden on nominees, agencies and committee staff, particularly on the committees with the most nominations. This may include additional agency and transition team support for nominees to accurately and swiftly complete necessary documentation as well as developing more centralized systems (for example, portals for electronic submission of the nominee’s forms) and common biographical and financial questionnaires for committees to process nominations.
With all the changes described here, the President and Senate can make advice and consent a constructive and productive part of starting a President’s new term.
Convention of States
One topic for potential amendments at an Article V convention is limiting federal government. The Advice and Consent process may not be an example of overreach but it is clearly interfering with the efficiency of governing. Our COS mission includes educating a grassroots army that will communicate regularly with their legislators to make sure elected officials honor the will of the people.
