Analysis: Why The Confirmation Process Is Completely Broken

President Obama returned recently from a 10-day trip to five countries in Europe and Africa, where he met with 12 world leaders. He carried into those meetings American initiatives, diplomatic proposals, and economic programs. But, more embarrassingly, he also brought with him signs of the dramatic dysfunction of Washington and more proof that the U.S. government isn’t working the way it is supposed to.

For the first time in memory, a president in his second term didn’t have even the semblance of a full diplomatic team behind him as he huddled with foreign leaders. Either because he has not yet named appointees or because the Senate has not yet confirmed them, almost all of the key positions in the State Department are filled by “acting”—not permanent—officials. As Secretary of State John Kerry lamented at a House Foreign Affairs Committee hearing in April, “I’m still waiting.” Foreign Policy magazine put it succinctly in a headline: “Nobody Home at the State Department.”

Today, Kerry needs a deputy secretary for management; a special representative for Afghanistan and Pakistan; an envoy for Sudan; an assistant secretary for Africa; an assistant secretary for Europe; an assistant secretary for Asia; an assistant secretary for democracy, human rights, and labor; an assistant secretary for legislative affairs; an assistant secretary for diplomatic security; and an assistant secretary for political-military affairs.

And if the State Department is Exhibit A in the indictment of Washington’s appointment stalemate, you don’t have to search for long to find Exhibits B through Z. There’s the Commerce Department, which just a month ago found itself with a confirmed leader for the first time in more than a year, when the Senate finally anointed Penny Pritzker as secretary. An acting secretary has headed Commerce—a department critical during an economic downturn—for 19 of the 54 months Obama has been president. The one-year gap between confirmed secretaries is the longest in the department’s 100-year history.

As bad as that is—and it is unprecedented in history for any Cabinet department to be headless for that long—things are even worse below the surface. On April 12, an exasperated Rep. Frank Wolf, R-Va., chairman of the House Subcommittee on Commerce, Justice, Science, and Related Agencies, wrote a letter urging the then-acting Commerce secretary to push the president to make appointments to other key slots in the department. At that point, Obama had not named a director of the Census Bureau, a chief financial officer, or heads for the Patent and Trademark Office, and the National Oceanic and Atmosphere Administration. “These positions have been vacant for months, some since last summer,” Wolf wrote.

Then, there’s the Bureau of Alcohol, Tobacco, Firearms, and Explosives, which has not had a full-time director in seven years. This one is on Senate Republicans. The president sent up a nominee, B. Todd Jones, who even—finally—had a confirmation hearing in the Judiciary Committee, five months after his nomination. But his chances of overcoming GOP opposition are not good. Republicans are not about to buck the National Rifle Association, which believes that a permanent director could result in stiffer enforcement of gun laws. To keep that from happening, the NRA has made sure that every presidential nominee for the job has been blocked since2006. That’s when the law was changed to require confirmation of the ATF director.

At the Energy Department, several key agencies don’t even have acting directors. Vacant are the offices of the undersecretary; the undersecretary for science; the assistant secretary for environmental management; and the principal deputy administrator of the National Nuclear Security Administration. Acting officials fill other key posts—including the chief of the country’s nuclear-weapons stockpile. These include the acting undersecretary for nuclear security, who is also the administrator of the National Nuclear Security Administration; the acting assistant secretary for fossil energy; the acting director of the Advanced Research Projects Agency-Energy; the acting director of science; the acting chief financial officer; and the acting assistant secretary for policy and international affairs.

Vacancies are scattered broadly across the Washington landscape—Social Security administrator; Environmental Protection Agency general counsel; National Science Foundation director; ambassador to NATO; Federal Communications Commission chairman; Federal Energy Regulatory Commission chairman. In some cases, the White House has sent nominations to the Senate—almost always after frustratingly long delays. In other cases, the Senate has moved at a glacial pace. In still others, Republicans have used Senate rules to sideline nominees. In the worst-case scenarios, individual Republicans have placed “holds” on dozens of nominees simply to get their way on unrelated matters.

The result is an administration in its fifth year still trying to get the government up and running, still trying to steer the ship of state in the direction the president charted in his two campaigns, still trying to change a status quo nobody likes. The administration filled many slots in a flurry of presidential nominations over the past six weeks. This included several of the key positions at State and Commerce, including (only five days before Obama’s arrival in Dakar, Senegal) Linda Thomas-Greenfield as assistant secretary of State for African affairs. Unsurprisingly, she was not confirmed in time for his trip.

“That would have been a perfect opportunity for the nominee to have the authority of the president conferred onto her as the lead diplomat with responsibility for Africa. So we missed an opportunity there,” Witney Schneidman tells National Journal. Schneidman, now with Covington and Burling, was President’s Clinton’s deputy assistant secretary of State for African affairs and traveled with him on his two trips to the continent. Being in the room with the president on these trips “just gives you a level of nuance that is very valuable when it comes to later events, when you are trying to develop agendas and implement policies,” Schneidman says.

But these were acting secretaries at the time of Obama’s trip, a familiar scenario today. “We have more people in acting positions in Washington than there are in Hollywood,” says G. Calvin Mackenzie, a professor of government at Colby College. Now 68, Mackenzie has spent his professional life studying the appointment process. He is discouraged by what he sees. “This is not how this is supposed to work,” Mackenzie says. It’s not that acting officials are unqualified for their jobs; it’s that, without being nominated by the president and confirmed by the Senate, they lack the clout and flexibility to look forward and excel. “When you have an acting assistant secretary, it is really about business as usual,” Schneidman says. “It’s really about overseeing the ongoing day-to-day activities.”

Mackenzie agrees. “I’ve spent a lot of time looking into what does an agency look like when it has an acting head. And it looks the same. There is somebody in the office, and there is somebody who testifies, and the Social Security checks get cut, and the grants get processed,” he says. “But in terms of creativity, there is much less of that … and they are not going to make a lot of significant decisions. Those are going to wait for a political person.”

What he calls “the most telling consequence” is the most troubling. “It just makes it harder for a president to direct the government.” Throughout two centuries of American history, the reason for the appointment process has been “so that the government can follow the determination of the people in an election that they want the government to go in a specific direction,” Mackenzie says. And the appointment process is “the primary lever that the president has for making that happen.”

ASSEMBLING A TEAM

The long-held notion that elections have consequences and that presidents deserve the team they want seems downright quaint in today’s hyper-partisan world where freshmen who win a majority of voters in a single congressional district believe their mandate is equal to the president’s. As recently as President Carter’s administration, people complained that the Senate didn’t take enough time on appointments. In 1977, the good-government group Common Cause released a study concluding, “The Senate confirmation process is a rubber-stamp machine.” It noted that of the first 590 major Carter appointees, only 14 were required to make public financial disclosure. Only 10 had more than one day of hearings. Many of the Cabinet appointees faced no additional questions from senators after the formal hearing.

Contrast that with the “questions for the record” senators submit to today’s nominees. A chart compiled by the White House shows the dramatic rise in the time-consuming and complex queries nominees must answer over and above their public hearings. In 1993, Clinton’s Treasury nominee, Sen. Lloyd Bentsen, fielded six questions from Democrats and 27 from Republicans, for a total of 33. His successor two years later, Robert Rubin, got only 18 questions. That number rose to 37 for Lawrence Summers in 1999, to 70 for John Snow in 2003, then to 81 for Henry Paulson Jr. in 2006, and 165 for Timothy Geithner in 2009. This year, the Senate had 444 questions for Obama’s Treasury nominee, Jacob Lew—49 from Democrats and a whopping 395 from Republicans.

The battle to confirm Gina McCarthy as administrator of the Environmental Protection Agency was an even more dramatic escalation. President George W. Bush’s nominee, Stephen Johnson, fielded 230 questions (181 from Democrats) in 2005. Obama’s first EPA nominee, Lisa Jackson, faced 157 (118 from Republicans) in 2009. But only four years later, McCarthy is trying to answer 1,120 “questions for the record,” 1,079 of them from Republicans. “That unprecedented invasiveness, often about matters decades old or unrelated to the post, slows down the process from beginning to end,” complains White House spokesman Eric Schultz.

Frustrated by the success of minority Republicans in blocking so many appointments, the Obama-supporting Americans United for Change this year began a new project, “Obstruction Junction,” to spotlight the GOP’s tactics. And a study from the liberal People for the American Way last week found the Republican efforts to be unprecedented. The group looked at how many times the Senate held cloture votes on executive-branch nominations since 1949, when the chamber’s rules were changed to allow them. It found that between 1949 and 2008, only 20 such votes took place. But in Obama’s first four and a half years, Republicans have forced 16 cloture votes. From the Eisenhower through Ford administrations, no presidential nominee faced a cloture vote, nor did any under President George H.W. Bush. Presidents Carter and Reagan each faced two cloture votes for nominees; nine took place under Clinton and seven under George W. Bush.

There can be no doubt that the process has slowed down. As of July 14, the White House counted 192 nominations pending in the Senate. Thirty-one of them are for judgeships, which is a totally separate problem. (Two successive chief justices have warned of a crisis in the judiciary.) But even more troubling is the relatively new phenomenon of an increasingly leaderless government bureaucracy. Of the 161 executive-branch nominations pending in the Senate on July 14, 45 were for Cabinet departments, 34 for independent regulatory agencies, and 11 for other independent agencies. The remaining 71 nominees in limbo were either ambassadors or members of boards or commissions. Of these, 141 were still mired in committee—and some had been stuck for more than a year. Before he was confirmed Tuesday, Richard Cordray was the poster child for this group. He was nominated July 18, 2011, to be director of the Consumer Financial Protection Bureau. Richard Griffin and Sharon Block were each nominated to the National Labor Relations Board on Dec. 15, 2011. Obama nominated Anthony West to be associate attorney general on Sept. 19, 2012.

Cordray, Griffin, and Block were at the heart of the deal struck on Tuesday by Senate Democrats and Republicans. To dissuade Majority Leader Sen. Harry Reid, D-Nev., from invoking the “nuclear option” and changing the filibuster rules, Republicans agreed to vote on the NLRB nominess—but not on the recess-appointed Griffin and Block, both of whom were sacrificed to get the deal. The president has named two new nominees, who are expected to receive quick votes. Cordray got 71 votes on Tuesday to let his nomination move forward.

It is difficult to find numbers that demonstrate the differences over the years. In part, that’s because the number and size of executive-branch agencies has fluctuated. (In a 2012 effort to reform the process, Congress passed a law removing 163 positions—mostly assistant secretaries for public affairs or management—from the confirmation process.) Also, not all appointments are equal. Many are for marshals, ambassadors, or appointees to minor boards and commissions. A relatively small number are to significant policy-making positions. Before the 2012 reform, the Congressional Research Service estimated that 1,200 to 1,400 positions in the executive branch required the Senate’s advice and consent.

Conventional wisdom, fueled by particular outrages, holds that out-of-control partisanship is the prime villain today. Just last month, Sen. Ted Cruz, R-Texas, vowed to block all State Department nominations until the five-year-old inspector-general vacancy was filled. On June 27, Obama nominated Steve A. Linick to the post. And in 2010, the White House erupted when Sen. Richard Shelby, R-Ala., slapped a hold on all of the president’s executive-branch appointments because he didn’t like the bidding process for air-to-air refueling tankers that he wanted to be made in Alabama. Shelby was also unhappy that the administration was not moving fast enough to build a Terrorist Explosive Device Analytical Center in Alabama. Calling Shelby a “poster child” for Washington dysfunction, White House press secretary Robert Gibbs said back then, “It boggles the mind to hold up qualified nominees for positions that are needed because he didn’t get two earmarks.”

It’s also difficult for the administration to anticipate just where partisan opposition will surface. In 2009, the president nominated a husband-and-wife team for two key jobs. Kurt Campbell was confirmed easily in June, only two months after being nominated to be assistant secretary of State for East Asian affairs. But his wife, Lael Brainard, saw her nomination to be Treasury undersecretary for international affairs held up for more than a year. Republicans on the Senate Finance Committee objected to Brainard’s personal tax records—the same records that Republicans on the Senate Foreign Relations Committee had cleared. The result: At the height of the global financial crisis, the key U.S. official responsible for negotiating with foreign governments was out of the game as governments tried to stabilize the global economy. Nominated on March 23, 2009, Brainard was not confirmed until April 20, 2010.

The Republican obstruction has become so blatant that Democratic anger erupted last week in an unusually testy exchange on the Senate floor between Reid and Minority Leader Mitch McConnell, R-Ky. After that exchange, Democrats revived their “nuclear option” proposal to alter Senate rules so that nominees will no longer need to cross the 60-vote threshold to be confirmed. Tuesday’s deal averted the move, guaranteeing continued partisan wars over confirmations.

But while there’s no denying the role of partisanship, analysts say dwelling on it misses the underlying systemic problems. “The really big problem that needs to be addressed is what it takes to get a president to find nominees and get them through the vetting process on the executive side and then out to the vetting process on the Senate side,” says the University of North Carolina’s Terry Sullivan, an expert on appointments.

Reports in recent years have focused on the duplicative forms required by the FBI, the White House, and different Senate committees, as well as on the failure of the two branches to share information. Just as Congress was reducing the number of positions subject to confirmation, the executive branch was reducing the number of required forms. But Sullivan said the basic problem remains—neither branch has sufficient capacity to handle the vetting process. That was recognized as early as 1977, when confirmations were swift. The Common Cause report that year called for a new Office of Nominations to handle vetting for all committees.

“There’s hardly enough vetting capacity on the administration side, and there is virtually no vetting process on the Senate side once they get into doing real legislative business,” Sullivan says. “So there really isn’t the capacity to move appointments through, and that just means any little nonsense that somebody wants to do is going to slow that process down again.” He adds, “The government has gotten bigger,” as the Senate approval side has remained roughly the same size.

Kerry, in his April testimony to the House Foreign Affairs Committee, didn’t blame partisanship for the delays in filling his team. “The greatest difficulty I’m finding—now that I’m on the other side of the fence—is, frankly, the vetting process,” Kerry said. “I’ve got some folks that I selected way back in February, when I first came in. And we’re now [in] April, and I’m still waiting for the vetting to move.” The White House shares his frustration, he said. It’s just laborious to find a fitting candidate, persuade her to take a job, vet her at the White House level, and re-vet her in the Senate. “They’re totally on board. They’re trying to get it moved.”

“Much more can be done,” Sullivan insists. “The forms used by the two branches can be coordinated. They just keep asking the same questions over and over again. But they ask them in slightly different ways. So it’s like you have to fill out your income tax four different ways. It is insane. And all it does—it teaches nominees that this is just a game. They are sad victims of some kind of perverted game.”

The refusal of all sides to stop playing the game and to just fix the process frustrates almost all the players. The president who travels without his full team, Cabinet officers who don’t have their deputies, members of Congress who don’t know whom to hold accountable—all suffer. But few are sadder than those who study the matter. “I wrote my dissertation at Harvard on this process, and I’ve stayed on top closely for 30 years, serving on every national commission that studied it,” Mackenzie says ruefully. “This is my life’s work, and it keeps getting worse every year.”

Amy Harder and Amy Sullivan contributed.