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Nov. 6 — Days after the midterm elections, congressional observers say it remains unclear whether a Senate helmed by Sen. Mitch McConnell (R-Ky.) will process energy and environmental nominations more quickly in order to reduce the number of vacancies at federal agencies.
Senate Republicans are likely to use the confirmation process to conduct additional oversight of controversial regulations, including many from the Environmental Protection Agency, but it remains unclear whether McConnell would change the process to allow faster action on nominees or be reluctant to move forward with EPA nominations, according to former congressional aides and interest groups interviewed Nov. 6.
“The rubber stamp for confirming the president's nominees will be gone,” Ron Bonjean, former spokesman for Senate Majority Leader Trent Lott (R-Miss.) and now a Republican strategist, told Bloomberg BNA. “There must be more of a balance between expediting a nomination and examining that nominee's qualifications. There should be a serious second look at a number of these folks. That doesn't mean they have to languish for months.”
McConnell, who won re-election Nov. 4 and is in line to become Senate majority leader in the 114th Congress, has signaled he intends to go after EPA carbon pollution standards for power plants through standalone legislation, the appropriations process and other means.
He may be reluctant to hold up nominees because he believes those other ways for targeting the regulations may be more effective, congressional aides told Bloomberg BNA.
There are numerous high-profile vacancies at the EPA and other federal agencies awaiting action from the Senate. At the EPA, those vacancies include the deputy administrator, assistant administrator for air and radiation and assistant administrator for water. Acting deputies have filled the roles pending Senate action.
Both McConnell and current Senate Majority Leader Harry Reid's (D-Nev.) offices weren't available for comment. It also remains unclear whether McConnell will restore a 60-vote threshold for executive branch nominees. Reid invoked the “nuclear option” in 2013 to lower the threshold for most nominees to a simple majority.
Reid is likely to make a push during the remainder of this Congress to confirm as many nominees as possible and may strike a deal with McConnell to confirm another slate of nominees before leaving town, according to Jim Manley, a former top aide to Reid and now senior director at QGA Public Affairs.
Whether the two could strike a deal on nominations before the end of this Congress remains an open question, as does the question of how McConnell will approach the nomination process as majority leader, Manley told Bloomberg BNA.
Frank Maisano, an energy specialist at the law firm Bracewell & Giuliani LLP, predicted a Republican Senate might actually smooth the confirmation process. He pointed to Sen. James Inhofe (R-Okla.), the incoming Senate Environment and Public Works Committee chairman, who has voiced general support for the executive branch to be given wide latitude in picking its officials.
“Senator Inhofe, especially, has been very willing to give the president the benefit of the doubt on people he wants to work for him, even if he disagrees with them,” Maisano told Bloomberg BNA. “There are better places to have that fight over the power plant rules than the nomination process.”
Republicans could place strategic holds on nominations to force policy conversations and extract other concessions from the EPA and other officials, but Maisano said using the appropriations process would be a far more effective strategy to roll back certain regulations.
Nominees to key agency positions are likely to face additional scrutiny prior to being confirmed, though the focus of confirmation hearings could be environmental regulations more generally, several observers said.
“I would expect that the new Republican majority will use any nominations to put the underlying Obama administration policies on trial,” Frank O'Donnell, president of the environmental group Clean Air Watch, told Bloomberg BNA. “It certainly will not become easier to get nominees confirmed.”
Confirming officials to fill the vacancies is essential if the agencies are to function properly, though Republicans have shown little support to date in ensuring that happens, according to the Natural Resources Defense Council.
“For people who are at least complaining the government doesn't work to prevent key positions from being filled is an odd tactic,” David Goldston, director of government affairs for the Natural Resources Defense Council, said. “These are major positions to help these agencies function.”
Others think a Republican Senate has little incentive to move on Obama executive branch nominations but won't grind the process to a complete halt.
“I do think that the pace and rate of confirmations will slow considerably—particularly were [Republicans] to unwind the nuclear option for cloture on nominees,” Sarah Binder, a senior fellow for governance studies at the Brookings Institution with expertise in the nominations process, told Bloomberg BNA. “But I don't think the GOP will grind the process to a complete halt—though they could well block a handful of high-profile nominees if they have a bearing on the party's messaging about EPA regulatory overreach or limits on energy production.”
While Republicans may not yet have said how they will treat Obama nominees awaiting Senate confirmation, they have expressed concerns about the length of time some were serving in acting capacities and overseeing the development of significant regulations.
“It has been a concern for me for some time,” Sen. John Barrasso (R-Wyo.), a member of Republican leadership, told Bloomberg BNA before the midterms. “Sometimes they don't even bring people for a vote or don't even intend to bring them up for a vote. If they put people in acting positions who couldn't get confirmed in the Senate, to me, that smacks of political opportunity and opportunism.”
Sen. Rob Portman (R-Ohio), who served as head of the White House Office of Management and Budget in 2006-2007, warned that federal agencies can't function effectively or develop sound policies without permanent officials in place.
“It's far better to have the confirmation process move forward and provide more accountability through the process,” Portman told Bloomberg BNA. “There are just certain things that without confirmation that you either are unable to do or feel unable to plan. [Regulations] continue to come forward but without the accountability you get from a confirmation process.”
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