The President’s recess appointment of Dr. Donald Berwick

The President’s recess appointment of Dr. Donald Berwick

Today the President is recess appointing Dr. Donald Berwick to serve as Administrator of CMS, the Centers for Medicare and Medicaid Services. CMS is responsible for administering more than $740 B of spending each year and will be key to implementing the new health care laws. This is a very important job.

Dr. Berwick runs a foundation, the Institute for Healthcare Improvement. Senate Finance Committee Chairman Baucus and Senator Grassley have for some time been asking Dr. Berwick to disclose the list of donors to his foundation. In the eleven weeks since he was nominated he has not yet done so.

Recess appointments are not quite routine, but they are Constitutional and are an ugly reality of how things sometimes work in Washington. Yet the timing and manner of Dr. Berwick’s recess appointment are clear process fouls by the Obama Administration. In this case the President is using the recess appointment power not to work around a filibuster as claimed, but to avoid disclosing information that is potentially relevant to Dr. Berwick’s service, to avoid an unpleasant reprise of the health care debate, and because it’s convenient for the Administration.

In a recess appointment the President bypasses the normal Senate confirmation process and appoints someone to a position within the Executive Branch. The President can do this only when the Senate is in recess – that is, not in session. The person appointed can serve until the end of the next session of Congress. In Dr. Berwick’s case, this means he can serve as CMS Administrator through the end of 2011. Technically, the President could then again reappoint Dr. Berwick for 2012-2013, but Berwick would have to be unpaid for that second stint. I don’t know of a second unpaid second recess appointment ever happening.

The Senate confirmation process usually works like this:

  • The President nominates you for a senior position in the Executive Branch that is Senate-confirmed. In the Executive Branch this is called a PAS slot, short for Presidential Appointment, Senate confirmed.
  • The staff of the Senate committee of jurisdiction (in Dr. Berwick’s case, the Senate Finance Committee) interview you. You have to disclose your finances, taxes, and fill out a bunch of questionnaires. This process can be both laborious and grueling.
  • The Committee then holds a nomination hearing at which you testify and answer questions. The timing of the hearing is determined by the committee chairman (in this case, Senator Baucus).
  • If you don’t foul up too badly at your hearing, sometime later the Committee members vote on your nomination. Again, the time of the vote is determined by the committee chairman. In most cases a majority of the committee will vote to report your nomination favorably to the full Senate.
  • Your nomination then automatically goes onto the Senate’s Executive Calendar.
  • Sometime later, the Senate Majority Leader (Reid) moves to proceed to your nomination. Usually the motion to proceed is adopted without delay, and the Senate is then debating your nomination.
  • If you’re controversial, the question of your nomination can be filibustered. The Leader would need 60 votes to invoke cloture to end the filibuster.
  • If cloture is invoked or if your nomination is not filibustered, after some debate the Senate then votes on your nomination.
  • If a majority of the Senate votes favorably, you have then been confirmed by the Senate.
  • You are then sworn in by an Executive Branch official and can begin work.

A recess appointment usually occurs when a nomination is very important to the President and is supported by a majority of the Senate, an impassioned minority fiercely opposes the nominee, and the majority lacks 60 votes to invoke cloture to overcome the minority’s filibuster.

Typically the above process will play out up to the point where the majority leader tries to invoke cloture and is blocked by the minority. Sometimes he’ll make the minority block cloture more than once to test their cohesion.

Then, having followed the regular confirmation process but having been stymied by a determined Senate minority, the President will recess appoint the nominee. To do this the President must have a cooperative majority party, because the tradition is that the Senate has to recess for more than three days for the recess appointment to be valid. If Republicans were in the majority now, they would technically recess for only one or two days at a time to prevent recess appointments. Senate Democrats did this in 2007-2008 to President Bush. If Republicans retake the Senate majority next year I would expect them to do the same to President Obama.

In the past recess appointments have been used after an actual filibuster. In this case the President is using a recess appointment to avoid the threat of a potential filibuster. Doing so also allows the nominee to avoid answering an uncomfortable question about his foundation’s funding sources. It also allows the Administration to duck a reprise of the health care reform debate four months before Election Day.

The Berwick recess appointment is extraordinary because the confirmation process didn’t even begin and because Republicans cannot be held responsible for the delay. In the eleven weeks since the nomination Chairman Baucus never held a hearing on Dr. Berwick. While some Senate Republicans threatened a future filibuster, no Senate Republican has yet had an opportunity to delay or block the confirmation process so far.

No member of the Finance Committee had any opportunity to question Dr. Berwick on either his fitness as a nominee or on his policy views.

The Senate Finance Committee therefore never voted on the Berwick nomination. It was never placed on the Executive Calendar. Leader Reid never tried to call up the nomination, and never gave Senate Republicans the opportunity to debate, vote upon, or carry through on their threatened filibuster.

Team Obama blames Republicans for forcing the President to use a recess appointment. Here’s White House Communications Director Dan Pfeiffer:

In April, President Obama nominated Dr. Donald Berwick to serve as Administrator of the Centers for Medicare and Medicaid Services (CMS). Many Republicans in Congress have made it clear in recent weeks that they were going to stall the nomination as long as they could, solely to score political points.

But with the agency facing new responsibilities to protect seniors’ care under the Affordable Care Act, there’s no time to waste with Washington game-playing. That’s why tomorrow the President will use a recess appointment to put Dr. Berwick at the agency’s helm and provide strong leadership for the Medicare program without delay.

This would be a valid argument if Senate Republicans had actually filibustered the nomination, rather than merely threatening to filibuster it. Mr. Pfeiffer’s argument is not a reason for a recess appointment, it’s a rationalization for bypassing the confirmation process.

Yes, everyone anticipated significant Republican resistance to the Berwick nomination. Yes, everyone anticipated that some Republicans would filibuster the nomination. But this entire process never had a chance to play out, and that is a crucial process foul on the part of the President.

In anticipation of some of the counterarguments, I’ll end with some Q&A.

Attack: Why do you oppose the Berwick confirmation? He’s well-qualified.

Response: I’m not arguing against his confirmation. I’m arguing that he should go through the confirmation process. If he is successfully filibustered, then the President can recess appoint him. I might oppose his nomination, or I might be OK with it. I need more information, which now I’ll never get. More importantly, many Senators are in the same position.

Attack: Everyone knows the Republicans will filibuster him. Why bother going through with that process? This is faster.

Response 1: All delay so far is not the fault of Senate Republicans.
Response 2: Whether or not his nomination is filibustered, the committee process should not be skipped. Nominees should have to answer the committee’s questions and appear at a confirmation hearing.
Response 3: It is impossible to know if such a filibuster would succeed. Filibuster threats are easy to make and occur all the time. Actual filibusters are a little harder.
Response 4: The Senate has a constitutional role in the confirmation of senior Executive Branch employees. This should be bypassed only in extraordinary cases, and not just because a few Senators told the press they would filibuster.

Attack: Health care reform is too important. We need Berwick in place now.

Response: Then you should have had him answer the committee’s question about his foundation’s funding sources, and you should have pressured the Democratic Committee Chairman to begin the confirmation process instead of waiting for 11+ weeks. All delays up to this point are because (a) the nominee refused to answer bipartisan questions from the Committee Chair and Ranking Member, and (b) Chairman Baucus refused to schedule a hearing.

Attack: If Republicans didn’t filibuster everything the President wouldn’t have to do this.

Response 1: Republicans don’t filibuster everything.
Response 2: Even when they do filibuster, it’s important to make them go through that process. Force them to explain why this nominee is so egregious that the Senate should not even vote up-or-down on the President’s nominee. That’s an unpleasant debate, but it’s better that it occur than not.
Response 3: Believe it or not, sometimes Senators change their minds after they have had an opportunity to question a nominee they previously opposed. Yes, even some Republicans.
Response 4: A process foul like this makes it easier for Senate Republican Leaders to argue to rank-and-file Senate Republicans that they are an aggrieved minority. Whether or not you believe this is a process foul, this argument strengthens the ability of Senate Republican leaders to mount future filibusters. This is an unintended consequence that may hurt some of President Obama’s future nominees.

(photo credit: striatic)

12 responses

  1. I thought this was a blog about economics, and not just a general republican insider soapbox.

    That said, who cares about correct procedural precedence? Not the average person. Is it credible that the republican party represented by those in congress do, with their novel usage of obstructionist procedure?

    I just don't see who this manufactured anger resonates with… I guess there is a small population of conventional procedural wonks upset at the premature use of recess appointment for a qualified candidate… …

    • This is a blog about both economics and political economy. This fits well within the latter.

      Despite what you appear to think, I (as a reader) care about a sudden exception to hundreds of years of procedural precedent, particularly when it is being represented as normal occurrence.

      Why are you so quick to excuse the side-stepping of the entire confirmation process? If the only point in a confirmation procedure were to find a "qualified candidate" why have it at all?

      Couldn't some file clerk check the references on the nominee's resume and then rubber stamp "approved" on top? Senate confirmations aren't just about technical qualifications and never have been.

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  3. @generic: I think you're correct in saying both sides play too much politics. But I don't think we (we = Americans. I know, v. general) get anywhere by justifying this sort of maneuvering by pointing fingers. We (again, Americans) want something better, right? Lets hold everyone, not no one, accountable.

    This being said, I'd like to point out that anyone can see a copy of IHI's IRS 2008 and 2009 Form 990s. You can register for free to download PDFs at <a href="http://www.guidestar.org” target=”_blank”>www.guidestar.org. This form does not list specific donors, but does inform this discussion.

    What I think is notable (this is all tax year 2009):

    Total revenue: about $35 million. About $11 million from non gov't contributions/grants.

    Dr. Berwick salary: about $2.3 million

    The organization DOES have a written conflict of interest policy.

    The organization is all over the place. America, Europe, Africa. One program I saw is a partnership with the Bill and Melinda Gates foundation to reduce the rate of childhood mortality in Ghana.

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  5. keith:

    It can't possibly be both "Constitutional" and a "process foul." The Constitution is the process.

    Even if you had a stronger point (or expressed your disapproval in more appropriately mild terms), the simple fact is that the circumstances in this particular case favor the recess appointment over the Senate tradition. That particular agency needs a strong leader A.S.A.P. and the Senate's plans were to drag out the procedure.

    And you do realize the confirmation process continues notwithstanding the appointment, right? It just continues with the nominee in place rather than waiting for some dilatory Republican to decide next December to go ahead and allow a vote.

    • If the circumstances were so urgent that Berwick's elevation called for a recess appointment then how do you explain the President's recess appointment of Phillip Coyle to his position? Is his role role that critical too?

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  7. "Nominees should have to answer the committee’s questions and appear at a confirmation hearing."

    My understanding is that the purpose of holding committee hearings on a nominee is to allow the Senators to gain information about the nominee in order to allow Senators to make an informed decision about whether to vote for or against confirmation. If the Senate doesn't expect to vote on the Berwick nomination, then a different rationale is required to justify holding a committee hearing on his qualifications. It's not hard to find another rationale: Berwick's qualifications for the position he has just been appointed to are a matter of public interest regardless of the process that got him that position.

    The problem is that the Senate has asked Berwick a question that Berwick doesn't want to answer. In principle, the Congress could use its subpoena power to get the information it wants, but that would be a real stretch. I don't recall the Senate ever using subpoena power to investigate a nominee, even in the case of nominees that the Senate does expect to vote on and therefore has a strong interest in getting as much relevant information as possible. Of course, in such situations the Senate can normally get the information it wants without using its subpoena power, simply by threatening to delay a vote on the nominee until the nominee provides the requested information. But if the Senate has no intention of voting on the nominee in any case, that threat holds no power. The current situation, as I understand it, is that Congress has tried to deploy that threat anyway, refusing to move forward with the nomination process until Berwick provides some information that Congress wants.

    Your position, as I understand it, is that President Obama is obligated to exert the leverage that Congress lacks. If Obama had informed Berwick that Berwick wouldn't get the position until he answered all of Congress's questions, it's a safe bet that Congress would get answers. However, the structure of our government is based on the assumption that each branch of government will defend it's own prerogatives. I don't think that there is any basis for claiming that the President is obligated to defend Congress's prerogatives, or that it is a "process foul" for the President to fail to defend Congressional prerogatives when Congress fails to do so.

    You note that, "Believe it or not, sometimes Senators change their minds after they have had an opportunity to question a nominee they previously opposed." Opposing a nominee before confirmation hearings isn't the same as promising to continue to oppose the nominee after the hearings are over. I think that if the expectation–not certainty, merely expectation–is that the Senate is not going to vote on Berwick's nomination, then it is reasonable for Obama to take the next step.

    You also argue that, "A process foul like this makes it easier for Senate Republican Leaders to argue to rank-and-file Senate Republicans that they are an aggrieved minority." This is a risk, but a large part of the Republican base already believes that it is an aggrieved minority, so I'm not sure Obama has a lot to lose here.

    Finally, you argue that, "The Senate has a constitutional role in the confirmation of senior Executive Branch employees. This should be bypassed only in extraordinary cases…" I think we've passed the point where a filibuster of a Presidential nominee can be considered extraordinary. If you want to argue that something extraordinary is going on, I think you have to take a step back and note that, on the basis of historic practice, it is extraordinary that you need 60 votes to do anything major in the Senate because filibusters are so freely used. But in that case, Obama doesn't have to wait for the Republicans to actually filibuster Berwick because the extraordinary circumstances already exist before that. All he has to do is to wait until it becomes clear that the extraordinary circumstance that already exists affects the Berwick nomination, and I think that the Republicans' announced decision to filibuster the nomination does that.

    The Senate is supposed to have a Constitutional role in the selection of senior Executive Branch employees, but that role is to provide "advice and consent," not to hold confirmation hearings. So in terms of the Senate's Constitutional role, it doesn't help to have the Senate hold a confirmation hearing before bypassing the Senate's role in providing "consent."

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