Delays in Senate Confirmations Hold Up Government Business

WASHINGTON — The U.S. Merit Systems Protection Board provided an example this week of why Congress is considering reforms to its process for filling high-level federal job vacancies.

The board protects federal employees by helping them to contest job actions against them that were motivated by partisan politics. The employees can file claims to receive hearings by the five-member board.

Only this week did the Senate confirm two new members to give the board a quorum. In the five years it lacked a quorum, the board compiled a backlog of nearly 3,700 cases.

It could take several more years to clear them out.

The Senate Homeland Security Committee held a hearing Thursday to figure out why filling top government jobs takes so long. Lawmakers also discussed inefficiencies the backlog creates.

Other top vacancies are more threatening for the business of government, such as when the Homeland Security Department is hesitant to develop new programs because of uncertainties about its leadership, according to lawmakers and witnesses at the Senate hearing.

“They can also compromise our national security,” said Sen. Gary Peters, D-Mich., chairman of the Homeland Security Committee.

The main issue appears to be the lengthy confirmation process by the Senate.

Peters described it as a process that has become tangled in “excessive bureaucratic roadblocks.”

They have included decisions by the Senate to increase the number of positions that require the senators’ vote of approval and lengthening paperwork required for background checks of presidential nominees.

President Joe Biden blames the delays for interfering with his ability to implement his $1.9 trillion American Rescue Plan and in fighting the COVID-19 pandemic.

In one case, the Food and Drug Administration operated with an acting director for more than a year during the pandemic. The acting director appointed by the president merely carried out daily duties but did not provide the leadership of a permanent head of the agency.

After Biden nominated Robert Califf to head the FDA, the Senate took three months to confirm him.

The public policy foundation Partnership for Public Service says 70 vacancies are unfilled among top government jobs because the Senate has not yet confirmed Biden’s nominees. Some of them are in the departments of Treasury, Transportation and Health and Human Services.

The Biden administration blames Republicans for the delays.

In Califf’s case, Republicans objected to his support for abortion rights before he won confirmation by a thin margin last month.

There are 1,200 federal government positions that require Senate confirmation. About 200 of Biden’s nominees at various levels of government await approval from the senators.

Sen. Robert Portman, R-Ohio, agreed slow confirmations were a problem but also cautioned against rushing into potentially ill-advised personnel decisions.

“We want to make sure the nominees are well-qualified and well-qualified to serve the American people,” Portman said.

One possibility he mentioned was converting some lower-level positions that now require Senate approval into career civil service jobs. The applicants then would be hired by higher-level agency officials after a vetting process.

His suggestion of reducing the number of jobs that require Senate approval is a leading idea behind a reform proposal the Homeland Security Committee is writing into a bill it is still developing.

The suggestion also won approval from legal experts who testified Thursday.

Anne Joseph O’Connell, a Stanford Law School professor, said, “The most important thing that Congress could do is to cut the number of Senate-confirmed positions.”

Otherwise, acting agency leaders become short-term caretakers, O’Connell said. Without permanent heads, “Vacancies undermine agency performance,” she said.

Kristine Simmons, vice president of government affairs for the Partnership for Public Service, said delays in confirmation can sometimes create disincentives for the best job candidates to apply for government leadership positions.

The vetting process must show nominees are free from conflicts of interest before the Senate will confirm them. As a result, some of them divest themselves of stock ownership, give up business enterprises and prepare to move their families only to find their nominations are stalled in partisan bickering and bureaucratic procedures.

“Many Senate-confirmed positions have been vacant for years,” Simmons said.

Tom can be reached at [email protected]