February 28, 2008

Mr. Joshua Bolten
Chief of Staff to the President
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C.  20500

Dear Mr. Bolten:

 

I am writing to provide you with my view of the current impasse on non-judicial nominations, my view of its origins and my view concerning how that impasse could be resolved.

 

As you know, I have the statutory authority to make recommendations to the President for Democratic positions on independent boards and commissions like the Nuclear Regulatory Commission (NRC) and the Securities and Exchange Commission (SEC). For my first three years as Democratic Leader, the President and I were able to work cooperatively on these nominations.  I received virtually no objections to the nominees I recommended.  They were generally nominated by the President in good faith without undue delay.  We then worked cooperatively with the President to confirm those nominations in the Senate.

 

Unfortunately, there has been a notable shift in the President’s stance on these nominations from one of cooperation to intransigence.

 

The decline in cooperation began with the recess appointment of Sam Fox last year in direct contravention of an explicit commitment to me that such an appointment would not be made. Mr. Fox’s nomination was set to be rejected by the Senate Foreign Relations Committee at the time of this recess appointment.

 

Despite the President’s failure to live up to his commitment and the clear disregard for the Senate’s advise and consent responsibilities, I again attempted to reach an agreement on permissible recess appointments prior to the November recess.

 

In that case, the controversy surrounded the consideration of two Democratic recommendations for the SEC and the President¹s two nominees for the Council on Economic Advisors (CEA).  I offered to confirm both Republican nominees if the President would commit to the speedy consideration of the Democratic SEC candidates.  This would have provided the President with actual confirmation in exchange for simply a commitment to me.

 

The President rejected my offer.

 

The President further indicated that he would recess appoint his nominees without action on Democrats. I held pro forma sessions to block the President¹s attempt to evade the Senate confirmation process.

 

Despite our failure to reach an agreement in November, I again sought an agreement in December.  This negotiation was particularly critical because it involved an offer to allow the President to recess appoint several nominees through the remainder of his term.  These are nominations that will not be confirmed for multi-year terms because to do so would unduly bind a new President with those appointments.  This is a common compromise that has been repeatedly used near the end of an Administration to balance the interests of the current Administration with that of a future one.

 

I also offered to confirm more than 80 Republican pending nominations and a smaller number of 8 Democratic nominations.  I again offered to confirm the President’s CEA appointments in exchange for a commitment regarding SEC candidates.  I offered to permit recess appointments for the Federal Reserve Board of Governors, the Chemical Safety Board and the Federal Aviation Administration. 

 

I further offered to provide a majority vote for each of the pending nominees to the Federal Election Commission ­ two Democrats and two Republicans.  As you know, several Democratic Senators had earlier insisted upon a 60-vote threshold for FEC nominee Von Spakovsky. In a significant concession, those Democratic Senators released all holds in December and indicated they would allow the Senate to proceed by majority vote on each of the nominees.  Despite the protestations to the contrary, nominees to the FEC have proceeded by individual vote in the past (e.g., Bradley Smith, Danny MacDonald).  And Republicans have rejected Democratic selections to this body (e.g., Tom Harris).  In fact, the President has so far failed to nominate an additional Democratic candidate to the FEC.  I made that recommendation over 7 months ago.

 

If Mr. Von Spakovsky cannot win majority support, I have also invited the President to send up a new Republican nominee to replace him.  I committed in good faith to quickly review that nomination.

The President rejected each of these offers.

 

The President refused offers of more than 80 confirmations, 5 recess appointments and majority votes to ensure that the FEC could continue to function in this critical election season.  The President has continued to refuse our solicitation of a new FEC nominee.  He has also failed to nominate an additional Democratic recommendation.

 

Despite this deeply regrettable response which has paralyzed the FEC and other bodies, I nonetheless confirmed more than 80 Republican nominations and 4 Democrats, about half of the number I had pending.  I again held the Senate in pro forma session to block the highly objectionable recess appointment of Steven Bradbury.

 

Prior to February recess, I offered to confirm several pending Republican nominations, including the Deputy Attorney General, if we could also confirm the Democratic nominees who had been blocked in December.  None of those nominations are controversial.

 

The President has again rejected my offer.

 

In addition to the Democratic nominations now pending on the Executive Calendar, the repeated unwillingness to make a commitment to nominate my SEC candidates is cause for great concern.  That body currently has no Democratic representation.  Similarly, the President has failed to even begin to process my candidate for the NRC ­ a candidate sent over 6 months ago. The FEC situation is plainly untenable and contrary to the interests of the American people.  Finally, the President recently indicated he would not process my candidate for the Social Security Board of Trustees ­ the sole Democratic representative on an otherwise all Republican board.

 

I have attached a list of the Democratic nominations pending in the Senate for which I am seeking confirmation and a list of positions for which Democratic candidates have been submitted to the President. As was the case for the first 3 years of my tenure as Democratic Leader, I stand ready to work cooperatively with the President to confirm both Republicans and Democrats. It is my hope that this important work may resume as soon as possible.

 

Sincerely,

HARRY REID
Majority Leader

 

 

Blaya (BBG)
Kaufman (BBG)
Carper (AMTRAK)
McCue (BBG)
Bagley (Public Diplomacy)
Walther (FEC)
Lenhard (FEC)

 

 

Nuclear Regulatory Commission (1)
Securities and Exchange Commission (2)
Saint Lawrence Seaway (1)
African Development Foundation (1)
Commodities Futures Trading Commission (1)
Federal Election Commission (1)
Institute for Peace (3)
Broadcasting Board of Governors (1)
Social Security Trustees (1)
Corporation for Public Broadcasting (2)
Commission on Public Diplomacy (2) (recently sent)