Skip to content

Filibuster executive appointments?

In the summer of 2013, the possibility that the Senate Democrats would “go nuclear” and eliminate the Senate rule that allowed a filibuster during the approval of Executive Branch appointments (e.g. of cabinet secretaries) was the source of much political posturing and general pontificating (the rule was, finally, eliminated in November of that year and, as a 2017 article in The Atlantic pointed out, many Democrats began suffering buyers’ remorse when they no longer had the rule available to them when they wanted to block appointments by the newly-elected President Trump).  The New York Times editorial board weighed in with approval, stating unambiguously that, “The president’s right to assemble an executive team without encountering ideological litmus tests from the Senate is fundamental”.

I am not a big fan of the modern filibuster.  I like the possibility the filibuster offers for a relatively large minority to stop (or at least delay in a noisy and passionate fashion) something they find particularly egregious; but I believe in the original intent and implementation of it  — that the minority would need to be sufficiently committed to actually hold the floor and keep debate open in order to make it stick.  The current practice, of not even opening debate if someone threatens to hold debate open at some later time, makes the filibuster all too easy to wield and trivializes its purpose, which was to introduce a measure of the intensity of support or opposition, rather than merely its scale, into the mix of things to be considered when  debating legislation.

Since I’m not a big fan of the filibuster as currently practiced, I might have agreed with the Democrats and The New York Times editorial staff — if the President’s choice of his executive team was all that was at stake.  Alas, it was not.  I wrote this letter to the Times to remind them why it was not; it was not published.

15 July 2013

Ref: “A Step to Majority Rule in the Senate” (15 July 2013)

It may or may not be that the filibuster should be retired but I must respectfully disagree with your reasons for doing so in this case.

You argue that a President should be able to “assemble an executive team” without interference from the Senate. And perhaps that is so for many executive appointments.

But, in almost all the current cases, the reason for objections to President Obama’s appointees is precisely because the positions to which they are to be appointed are not purely executive — they are, in large measure, legislative.

In its wisdom (or foolishness) the Congress has delegated a part of its authority — or, some would argue, abdicated a part of its responsibility — for making law to executive agencies like the EPA and the FDA and the SEC and the FEC and, now, the new CFPB. And, so, the “executive” appointees that head such agencies do not merely execute the law but create it.

If the legislature has delegated its authority for making law to an executive agency, then it would seem prudent for the legislature to cast a critical eye on who it is allowing to exercise that authority on its behalf.  In fact, it would seem downright irresponsible for it to do otherwise.

© Copyright 2013, Augustus P. Lowell

Leave a Reply