As we end 2016, we have an unusually large number of vacancies in both the executive branch and the judiciary. As anyone not living under a rock knows, that’s no accident. Getting Obama appointments approved by the Senate was always a hard slog, and became virtually impossible after the Republicans took over the Senate in 2015. This doesn’t merely impact the waning days of the Obama Administration. If Clinton wins the White House, it means that the Administration will start with a large number of important holes. Even if the Democrats also retake the Senate, it will take months to bring the Executive branch up to functioning, never mind the judiciary. If Clinton wins and Republicans keep the Senate, we are looking at continuing gridlock and dysfunction until at least 2018 and possibly beyond.
In my own little neck of the policy woods, this plays out over the confirmation of Federal Communications Commissioner Jessica Rosenworcel (D). Rosenworcel’s term expired in 2015. Under 47 U.S.C. 154(c), Rosenworcel can serve until the end of this session of Congress. That ends no later than Noon, January 3, 2017, according to the 20th Amendment (whether it ends before that, when Congress adjourns its legislative session but remains in pro forma session is something we’ll debate later). Assuming Rosenworcel does not get a reconfirmation vote (although I remind everyone that Commissioner Jonathan Adelstein was in a similar situation in 2004 and he got confirmed in a lame duck session), that would drop the Commission down to 2-2 until such time as the President (whoever he or she will be) manages to get a replacement nominated and confirmed by the Senate. Given the current Commission, this would make it extremely difficult to get anything done — potentially for months following the election. It would also force Chairman Tom Wheeler to remain on the Commission (whether he wants to or not) for some time.
From the Republican perspective, however, this has advantages. If Clinton wins, it means that the FCC is stuck in neutral for weeks, possibly months. Since Republicans generally do not like Wheeler’s policies, that’s just fine. By contrast, if Trump wins, Republicans will have an immediate majority if Wheeler follows the usual custom and steps down at Noon January 20. So even though Republicans promised to confirm Rosenworcel back in 2014 when the Ds allowed Commissioner Mike O’Reilly (R) to get his reconfirmation vote, they have plenty of reasons to break their promise and hold Rosenworcel up anyway. Not that Senate Republicans have anything against Rosenworcel, mind you. It’s just (dysfunctional) business.
Again, it’s important to remind everyone who obsesses about communications that this is not unique to Rosenworcel. From Merrick Garland (remember him?) on down, we have tons of vacancies just sitting there without even the virtue of a bad excuse beyond “well, we’d rather the government not function if someone on the other side is running it.” While I keep hoping this will change, I don’t expect either political party to have a change of heart around this following the next election.
Fortunately, I have a plan so cunning you can stick a tail on it and call it a weasel. On the plus side, if I can get the President to go along with it, it will not only keep things working between January 3, Noon, and January 20, Noon. It will also give the Republicans incredible incentive to move Clinton’s nominations as quickly as possible. On the downside, it’s not entirely clear this is Constitutional. I think it is, based on the scanty available case law (mostly Nat’l Labor Relations Bd v. Canning). But, as with test cases generally, I can’t guarantee it. Still, like the idea of preventing a U.S. default on its debt with a trillion dollar platinum coin, it can’t hurt to think about it.
For the details of what I call “Operation Midnight At Noon” (throwback to the Midnight Judges), see below . . .