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Senate Obstruction: Four Years and Counting Since a Confirmed ATF Director

One of the things that maybe surprised everyone after the assassination attempt on Gabrielle Giffords is the fact that the United States has not had a confirmed director of the Bureau of Alcohol, Tobacco and Firearms for four and a half years. Potential directors nominated by George Bush and Barack Obama alike, both of whom seemed to have the proper credentials for the job, were immediately opposed by the NRA. They objected to unbelievably minor transgressions on the part of the nominees, like revoking gun licenses of sellers who broke the law, and opposing giant .50 caliber bullets. And they were quickly able to find a US Senator to take up their cause and block confirmation. Ian Milhiser writes:

Yet, while the NRA’s objections to (current nominee Andrew) Traver have little grounding in reality, they will likely be sufficient to keep the ATF leaderless. Last month, the Senate returned Traver’s nomination unconfirmed to the President, and the Senate’s broken rules will make it very difficult to move his nomination forward if just one senator objects. Nor is the NRA’s stranglehold on the ATF directorship an isolated incident. As ThinkProgress’ Lee Fang recently reported, corporate lobbyists have created an entire holds-for-sale industry which connects powerful interest groups with senators willing to place a hold on Senate business which could hurt the interest group’s bottom line. Until the Senate’s broken rules are reformed, this kind of influence trading will continue unchecked.

This isn’t even the first time in recent memory that an event of national significance highlighted a lack of leadership at the main agency involved in that event. On Christmas Day 2009, when Umar Farouk Abdulmutallab failed in his attempt to light a bomb in his underpants on a Northwest Airlines flight headed for Detroit, there was no agency head of the TSA because Jim DeMint had a hold on the nominee. That didn’t resolve itself for another six months, spanning two additional nominees.

The power of the minority in these fights is simply beyond the pale. And one group of people knowledgeable with legislative rules knew it – the Founding Fathers.

Hamilton and Madison (Washington, too, by the way; I’m not sure about Jay) strongly favored what was then called “proportional representation.“ (Modern P.R., under which legislative seats are distributed roughly in line with aggregate party shares of the vote, hadn’t been invented yet.) Obama-like, they forced themselves to pay what they knew was a corrupt and immoral price in order to get a barely acceptable deal—which deal they sold, Obama-like, as a fine, public-spirited solution.

When it came time to decide who would write the essay defending the two-senators-per-state provision, Madison drew the short straw. In The Federalist No. 62, little Jemmy did not bother to conceal his lack of enthusiasm for the task:

The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion […]

The small states made a non-negotiable demand. Madison, Hamilton, and the other grownups realized that the only alternative to giving in was the failure of the Convention and a reversion to the Articles of Confederation, which would be even worse than a government with a screwed-up Senate. So they caved, and now they’re doing their best to stop worrying about the Senate and focus on the good aspects of the proposed new governmental setup, which will probably be less bad (“the lesser evil”) than the status quo.

We’re 224 years out from that decision, and the malapportionment of the Senate have only grown worse, with Wyoming having equal representation in the body as California despite have 67 times as few residents. But the malapportionment magnifies even more when you give a minority veto powers, even a minority of one in many cases.

Making holds transparent will not do. There has to be an easier way to set up the executive branch than to force thousands of prospective hires through a bottleneck in the Senate, where just one enterprising Senator can deny the appointment for any reason whatsoever. The rules changes in the Udall/Harkin/Merkley consensus document would reduce post-cloture time on nominees from 30 hours to 2, substantially reducing the pain of playing out a cloture vote on a nominee. I’d prefer an up or down vote, but I’d prefer virtually anything to the utterly broken system we have now.

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David Dayen

David Dayen