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By Anthony Adragna
Dec. 14 — Delays in confirming executive branch nominees have gotten worse during the Obama administration, and that fact makes it increasingly unlikely that additional Environmental Protection Agency officials will earn the Senate's stamp of approval this presidency, academics and other observers told Bloomberg BNA.
Eight of the 14 slots requiring Senate confirmation at the EPA are unfilled or staffed with acting officials, including the deputy administrator and high-profile positions in the air and water offices. While the agency has forged ahead with major regulations, acting officials suffer from a perception they lack proper authority, and the failure to confirm presidential selections suggests strong dissatisfaction toward the agency itself, academics said.
Both the administration and Senate shoulder part of the blame for the breakdown in the confirmation process, observers say, but they note the problem is not unique to the Obama administration. High vacancy rates were seen in federal agencies during the last years of the George W. Bush and Bill Clinton administrations as well.
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“This is a perennial issue, reaching back into at least the mid-1980s,” Sarah Binder, congressional scholar at the Brookings Institution, told Bloomberg BNA of the struggles to confirm nominees late in administrations. “As a president's term winds down, there are very few incentives for senators to confirm the opposite party nominees to high-profile vacancies.”
But the problem is getting worse. The White House has taken progressively longer to nominate officials and turn in required paperwork, while the Senate is on track this year to confirm the fewest executive branch nominees in decades .
On Aug. 1, 2013, the Senate approved by voice vote Jim Jones to head the Office of Chemical Safety and Pollution Prevention and Avi Garbow to be general counsel. Those are the last two EPA nominees to get OK'd by the chamber.
According to a study published in the Duke Law Journal in 2015, the percentage of the president's nominees not confirmed has risen steadily over the last three decades and those that do make it through the process are waiting much longer.
For example, 28 percent of President Barack Obama's nominees through 2014 were ultimately not confirmed by the Senate compared to a 17.5 percent failure rate for President Ronald Reagan.
Obama's picks have also waited longer for Senate action. While the average executive branch nominee between 1981 and 2014 waited 88.5 days for Senate action, the current president's selections have lingered an average of 127.2 days.
Specific examples at the EPA show the arduous path nominees face. Ken Kopocis, first nominated to be the agency's top water official in June 2011, left the agency in November without ever receiving a Senate vote. Janet McCabe, currently serving as the acting top air official, was first formally nominated to her role in January 2014.
Administrator Gina McCarthy won confirmation in July 2013 after an unprecedented wait of 136 days, despite little criticism of the nominee herself. “My vote against Gina McCarthy is a vote against the administration's lack of any serious attempt to develop an energy strategy for America's future,” Sen. Joe Manchin (D-W.Va.) said on the Senate floor as an explanation for his vote.
“I think Congress's orientation toward EPA and its mission has deteriorated, and this is one iteration of that,” Jonathan Cannon, law professor at the University of Virginia and a former general counsel at the agency, told Bloomberg BNA. “It's not about the nominees and their qualifications.”
The lengthening waiting periods are not limited to the EPA. John Cruden, current head of Justice Department's Environment and Natural Resources Division, waited almost a year for the Senate to confirm him by voice vote in December 2014, while his predecessor Ignacia Moreno made it through the process in five months.
Republicans have a different view of the current confirmation process. A spokesman for the Senate Environment and Public Works Committee, which oversees EPA nominations, told Bloomberg BNA “this administration has been remarkably disinterested in obtaining Senate confirmation for its nominees.”
Once selected by the president, nominees must complete a basic committee questionnaire, undergo a background check and provide financial disclosures. After the committee receives the paperwork, it proceeds with a confirmation hearing, panel vote and then ultimately full Senate consideration.
But just three of the seven nominees selected by Obama have completed the routine first step of submitting the paperwork. The committee is still, for example, awaiting the documents from deputy administrator nominee Stan Meiburg despite the fact he was nominated in January.
“More broadly, we are also looking into the administration avoiding filling vacancies altogether,” the EPW spokesman said. “This failure runs afoul of the Federal Vacancies Act and undermines the ability of agencies to perform their functions.”
Asked why it had not returned the basic paperwork yet, an EPA spokeswoman said the EPW committee had “yet to act on a number of pending nominations” that have been awaiting Senate action for multiple years.
Questions about administration buy-in to the confirmation process have arisen recently. McCabe's nomination effectively died last Congress after the EPA waited nearly seven months to return questions for the record to the EPW committee (46 ER 1110, 4/10/15).
Some observers of the process said it makes sense, given the slow pace of Senate action, that the administration would not push as hard to get its nominees through the process.
“The administration wisely says ‘we only have a certain amount of political capital and this is not how we're going to spend it.' ” David Goldston, director of government affairs at the Natural Resources Defense Council, told Bloomberg BNA. “The most damaging thing is if this starts being viewed as business as usual.”
All of the nominees currently awaiting confirmation serve in acting or deputy roles at the EPA.
“We remain fully committed to having them confirmed,” Melissa Harrison, spokeswoman with the EPA, told Bloomberg BNA. “We're aware that confirmations may not happen, but we're very happy to have these individuals serve in their current capacity and we are fortunate to have their talent and commitment at EPA.”
Nominees faced a much clearer path to Senate confirmation early in the Obama administration, admittedly, when the Democrats controlled the Senate with the 60 votes needed to survive any filibuster attempt.
Officials tapped to fill all 14 spots requiring Senate approval at the EPA passed the chamber by voice vote, almost always within weeks of their formal selection by the president. Lisa Jackson, the first Obama administration EPA chief, finished the process in three days.
Less quantifiable to academics and other observers is what impact lengthy vacancies have on the agency's ability to properly function.
“I think acting officials often do not carry the same functional authority in an agency even if they have the same formal power as a confirmed official,” Anne Joseph O'Connell, a law professor at the University of California, Berkeley, told Bloomberg BNA in an e-mail. “I also think acting officials are disadvantaged in discussions with White House and congressional overseers.”
Academics said there are no significant questions surrounding the legal authority of the acting officials—ultimately the administrator makes the final calls on agency policy—but said they suffer by lacking the perceived legitimacy Senate confirmation bestows.
“For various reasons career folk are going to be more reluctant to push the envelope on issues because the career people don't have the imprimatur of the presidential directive,” Cannon, who withdrew from consideration as EPA deputy administrator in 2009, said. “It's just a different aura that surrounds them and questions that sometimes arise that wouldn't arise with a Senate confirmed appointee.”
Nina Mendelson, law professor at the University of Michigan, agreed that large numbers of vacancies can create “serious problems” for government operations by depriving agencies of leadership and resources.
“The agency may be less likely to undertake important projects, simply because a lead manager is missing,” Mendelson told Bloomberg BNA in e-mail. “Even if an acting official may be appointed, the person is likely to be less effective.”
Several observers said the lengthy confirmation process made it harder to attract qualified officials to serve in an administration. Nominees frequently must give up more lucrative private-sector employment for public service and are increasingly more reluctant to do so if they are unsure about the fate of their nomination.
“It has a very bad effect on recruiting people for these jobs,” Dan Blair, president and chief executive officer of the National Academy of Public Administration, told Bloomberg BNA. “The individual is often giving up a good position in the private sector and how long do they want to wait?”
Not all aspects of having acting officials fill agency roles are negative, according to academics. O'Connell and Mendelson have both written that career public servants may be better qualified for certain actions than political appointees, temporary officials may spur innovative ideas and leadership opportunities may reduce turnover among lifetime agency workers.
Regardless of the impacts of long-term vacancies, both parties have in the past complained about obstructionism and delays at confirming officials to federal government roles, depending on who controls the White House.
“The confirmation process has turned into a never ending political game, where everyone loses,” President Bush said during a February 2008 press conference. “When the Senate fails to [act], it leaves important positions in our government vacant for months at a time, and it makes it harder for future presidents to be able to attract good people to serve.”
At the time of those remarks, Bush said approximately 90 of his nominees had been waiting more than 100 days for Senate action, more than 30 had languished for over a year and nine nominations had gone without a vote for more than two years.
Seven years later, with roles flipped and Democrats seeking confirmation of Obama's nominees, Senate Minority Leader Harry Reid (D-Nev.) took to the Senate floor in November to criticize the Republican-led Senate for blocking “more of this president's nominations than all the preceding presidents in the history of our country.”
“Let's move forward with votes on these qualified consensus nominees as we have done historically,” Reid said. “It wasn't until this Republican crowd arrived in the Senate that they started doing it. We have never had this before. We may have held somebody up for a while, but they basically put a stamp of disapproval on anything that President Obama wants to do.”
Academics and other observers agreed that few, if any, of the Obama administration's picks for slots at the EPA would make it through before the end of his term in January 2017.
“I remain fairly confident you will not see new people coming into the administration except in ways that avoid confirmation,” Michael Gerhardt, law professor with University of North Carolina, told Bloomberg BNA. “You are seeing vacancies in areas that tend to be lightening rods for the parties such as environmental law and the Justice Department.”
Others predicted some less controversial positions within the agency, such as the heads of the Office of Environmental Information, Office of International and Tribal Affairs and Office of Research and Development, might get through the Senate but cautioned that other officials would likely create new openings by departing the agency.
“I do expect some of the current vacancies to be filled with confirmed officials but there will also be new openings,” O'Connell said.
Goldston, of the NRDC, said the delays were a “sign of a larger breakdown” in the confirmation process and called them a further sign of increased political polarization.
“The system isn't supposed to work this way for a reason,” Goldston said. “People are supposed to have full, unquestioned authority. You're not supposed to have to be doing work-arounds.”
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