Does the Senate really need to confirm 1,200 executive branch jobs?

July 16, 2013

The Senate has been bickering all day over how to confirm President Obama's nominees for various executive-branch positions. And it's worth taking a step back and asking: Why are there so many jobs that require Senate confirmation, anyway?


In the hot seat. (The Washington Post)

Let's start with the raw numbers: There are somewhere around 1,200 to 1,400 positions in the executive branch that require Senate confirmation, according to an estimate by the Congressional Research Service. That means several hundred nominees have to get scrutinized by the Senate each year.

This list includes all the obvious, major positions — like the head of the Environmental Protection Agency or the Secretary of Defense. It also includes ambassadors and justices to the Supreme Court. Virtually everyone agrees that it's reasonable to have Senate oversight for these big, important jobs. That's what the Constitution envisioned.

But the full list also includes plenty of assistants and deputies and administrators and positions hardly anyone has ever heard of. Does the Senate really need to confirm all 15 members of the National Council on Disability? Or the Intellectual Property Enforcement Coordinator at the Office of Management and Budget? Does this make sense at a time when the Senate is taking longer and longer to confirm various nominees?

That's a trickier question. Whenever Congress creates new executive-branch agencies and offices, it makes a determination about whether the positions within them require Senate confirmation or not. That's all well within Congress's rights under the Advice and Consent clause of the Constitution.

And, since the New Deal-era, as the federal government has grown in size and scope, Congress has created more and more jobs that require Senate approval. There's good reason for that. "The motivation for that is that Congress wants to keep a hand in trying to influence who occupies those positions," explains Michael Gerhardt, a professor of constitutional law at University of North Carolina. "If they turn over complete authority to president and let him appoint whoever he wants, that makes the president stronger."

In recent years, however, some critics have argued that we've reached the point where the Senate takes way too long to confirm nominees, leaving key agencies understaffed and underpowered. Case in point: Now that Janet Napolitano is resigning as Secretary of Homeland Security, fully 15 leadership positions in that department have been left vacant.

"Having a certain level of senior-level vacancies in a Cabinet department is normal, given the typical churn of confirmed and appointed officials," writes Christian Beckner of George Washington University. "But if enough positions are open for a long enough period of time, it can lead to significant operational and management risks to that Department, and also diminishes its accountability to the U.S. Congress."

There are a couple of possible ways to change this. One, the Senate could speed up the pace of confirmations. This is exactly what Harry Reid and Mitch McConnell have been fighting about for the last few days. Reid claimed Republicans were bogging down nominees through filibusters in order to cripple agencies like the National Labor Relations Board. McConnell retorted that the Senate was confirming most nominees anyway and the system was ultimately working. That fight appears to be resolved for now.

Another possible option, however, would be to shrink the number of executive-branch nominees that need Senate confirmation in the first place. If Senate committees didn't need to spend so much time on low-level positions, the logic goes, they could focus on the important jobs and confirm these nominees more quickly.

As it turns out, the Senate actually took a first crack at this question two years ago with the Presidential Appointment Efficiency and Streamlining Act of 2011. That resolution ultimately reduced the total number of executive-branch positions needing approval by 163. It also identified another 272 positions that could now speed through the Senate fairly quickly, barring unusual circumstances.

Under the new arrangement, the Senate would continue to scrutinize the big jobs, like Secretary of Defense or all the top-level jobs at the Environmental Protection Agency. But lawmakers decided that they could probably do without confirming a slew of lower-level positions. Like, say, the Administrator of the St. Lawrence Seaway Development Corporation. Or the Assistant Administrator for Management at USAID. (You can see a longer list of positions that no longer need Senate approval on page 19 of this report.)

That said, some senators thought you could whittle the list down even further. Sens. Lamar Alexander (R-Tenn.) and Chuck Schumer (D-N.Y.), two of the backers of that 2011 resolution, argued at the time that there were a bunch of positions that had little or no policy roles. Like certain assistant secretary jobs. "These are the ones the Senate does not need to spend time on,” Alexander said.

Many of his colleagues disagreed, and the final bill still left many low-level positions requiring Senate approval. The Assistant Secretary for Legislative Affairs at the Department of Commerce? That job may be a relatively minor one, but it still needs approval by the Senate.

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