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If the Senate Held Confirmation Elections

Holding nomination elections would make the Senate more democratic.

They sort of already do hold an election, but this would be a different take where the president would nominate a slate of candidates for positions subject to Senate confirmation.

Let’s start with the law. From the Constitution (Article II, Section 2):

[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law;

As far as I can tell, the president can nominate more than one person for a position. It is the duty of the Senate to provide advice, and depending on their disposition either consent or dissent, on the nominations.

And so the scheme is this:

  1. The president would nominate any number of people to fill a position.
  2. The Senate would take up that slate, hold hearings and debates, and hold an election of some design to decide which of the nominees (if any) to confirm.

Some of the analysis would depend on the exact sort of election. Would they vote on each in turn, until one got a majority? Would they use an instant-runoff ballot? It’d be entirely up to how the Senate wanted to hold the election. They could even proceed with the current process, simply going down the list in whatever order, or in a random order, only moving on the next name if the previous failed.

There are questions for how it would impact the politics of the presidency. Currently the nomination process is very double-edged. You want to accomplish some set of tasks through a nomination including patronage, furthering policy goals by having a champion in the right role, defending against criticism by having consensus players in the right spots, and sidelining more annoying VIPs (a kind of patronage that deserves special mention).

Moving to a slate-nomination system would keep those options. The president would remain free to nominate exactly one person for a position and the Senate would proceed as they have. But when nominating several, the president would be risking the Senate going against the goals of the nominations. That is, if the president is betting on a certain outcome, that’s a bet that could turn out wrong.

Even so, it would often make for better politics to nominate several persons and let the Senate do the work of the final choosing. For example, if the position is highly contested, letting the Senate choose between competing factions would help force a debate on policy rather than let them hide from it. The Senate in the modern age is notorious for not being a cooling saucer, but a dead-letter office. This would help push back on their capacity to heave stacks of policy into the incinerator.

It would also give greater support to the varied interests a president wants to be happy, if each of their favorites got a shot. Those interests would be free to stump for their favorite, and in doing so better media coverage could emerge of the particular concerns and interests. It would also dilute the focus on the president and help underline that these positions are supposed to serve multiple constituencies, and that the Senate has an active role (and deserves a share of the blame) in determining how poorly our various departments and courts are run.

Under the current politics, the media often notes only who appointed the judge or judges that made a controversial ruling, but those dopes got in there by-and-with the dopes in the Senate slapping them on the back and yuck-yucking it up. To the extent Americans pay attention to these things, seeing the election process would highlight that and would force a change in media framing.

The president would be able to message off of how many and whom he nominated. The media would remark that the president got it down to two names for this. Or put up seven for that: another let-the-Senate-figure-it-out-I’m-busy nomination! That second sort might push Congress to adjust some of the offices. There are currently 1200 political appointed positions (per Partnership for Public Service: “Political Appointment Tracker”). That’s surely too many. (That same site says only about 800 are “key roles,” but it’s a very long-winded and time-wasteful process when a year in Biden only has about a quarter of all 1200 and a third of the 800 done.)

The rest of the paragraph from the Constitution above:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

In other words, Congress can cut a lot of red tape and let someone else share the burden. And they damn well should. But for the fewer Senate-confirmable positions, they could still hold elections on multiple nominees.

Another side benefit would be boosting the profile of up-and-comers in a manner similar to the bygone straw-nominations for president that used to occur at party conventions. Back then, folks who weren’t ready to run could still get a token nomination in order to boost their profile, recognize them as someone to keep on the radar. Some of the officer nominations could serve that capacity, helping cultivate the next generation.

An unlikely idea, perhaps. But as usual half the idea is showing that better ways are out there, government is subject to change, and experimentation is the key to discovering better government.

And at least it would take away one of the most-abused phrases of derision for those positions: they would no longer be unelected bureaucrats. They would be elected!

The Need for More Formality in Government.

From Senate confirmation process to software, our government needs more formal processes.

Does Pete Buttigieg have the skills to head the Department of Transportation? What about a waiver for Austin for Secretary of Defense? What about others, to be nominated, with various industry ties? And so on.

As these questions will confront the Senate, barring any withdrawals or replacements, the question for me isn’t so much whether Austin gets a waiver, whether Buttigieg gets confirmed, as whether the Senate can formalize their processes more.

Part of the problem with recent confirmations, including those to the Supreme Court, was a worthless process. There is a hippie streak in Republicans when one of their own is in power: do whatever feels good, man. (That same attitude has been used in various Republican-led states on pandemic response, to their detriment.) While there are some statutory rules, including the need for a waiver for a Defense Secretary if the nominee hasn’t been retired long enough from the military, the body itself should have a more formal objection and advisory process.

Standards are needed (including for trials of impeachment). The body needs some amount of bedrock on which questions deserve answers, which do not. If the Senate Judiciary Committee decides that no past cases deserve mentioning in a SCOTUS nomination, that should be a formal rule, not merely a de facto one. While the Senate is a rules-body that can freely ignore its rules, the media reports that as the aberation it is. Therefore, establishing some formal expectations for nominees at least forces wishy-washy reporters to acknowledge the departure from the rules.

The main goal of more formality in the Senate should be to reduce the hypocrisy of those who only care about doing right for the country when it’s the other party’s nominees. Every time there’s a cake-walk, it’s the peoples’ cake that’s eaten. And every time it’s a coal-walk, some good nominees get burned. The amounts of cake and coals should be fixed and standard.

Agents employed by the Russian Federation have again hacked the US Government. In this case it was primarily a supply-chain attack. The government needs more formal software acquisition and distribution rules. The government should almost never receive binary (i.e., precompiled) updates for anything. The government should receive code, that code should be audited, and then compiled and distributed internally.

I’ve loosely followed Debian’s efforts to their make binaries reproducible (as part of a larger effort: Reproducible Builds). The government’s binaries should be similarly compiled. There should be a firm rule: when the government runs any software, it has access to the source and it maintains a compatible environment to compile it.

Obviously that’s a big change to ask for. It would not happen overnight. Neither does the hard work by the folks who work on reproducible builds in various free software projects. No large change in computing is simple. But if the alternative is a broad breach like this, the choice is between formal computing in government or insecurity in government.

The process of formalization is about refining discretion and choice. Most restaurants don’t say: “Here’s a list of ingredients, tell us what you want cooked.” You might be able to order off-menu, if you’re nice and your request is reasonable. By offering a set of choices, the restaurant isn’t depriving you. It’s setting expectations: we know how to make these things well, and we have the stock to make them.

Formalization reduces uncertainty by having a process that can be iterated on if new failures or deficiencies occur.