The Brewing Democratic Fight Over Biden’s Cabinet

There was a moment this summer when Joe Biden’s promise to deliver an “FDR-size” presidency was almost credible. Desperate to shore up
his support from dejected Bernie voters and galvanized by Covid-19 and the
cratering economy, Biden seemed to embrace, if somewhat sheepishly, a more
transformative agenda. His platform featured huge expansions of the welfare state, an ambitious climate plan,
legislation to fuel unionization, and a major public sector role for job
creation. If you had squinted—and I mean really squinted—Bidenism looked a bit
like social democracy in centrist’s clothing: Copenhagen by way of Scranton. Now summer feels far away. With Republicans maintaining control
of the Senate (pending two runoffs in Georgia), there are signs that Biden might
use divided government as an excuse to narrow his vision, play ball with the
GOP, and appoint CEOs, high-level consultants, and corporate lobbyists to key Cabinet posts. Earlier this month, Biden insiders leaked
a preemptive surrender to Axios, indicating they would  “consider limiting prospective Cabinet
nominees to those Mitch McConnell can live with.” On Tuesday, the campaign released
a list of advisers to help with the transition at the Office of Management and Budget; it included execs from Amazon, Lyft, and Airbnb. This has happened before. In 2008, people of color, liberals,
and union members powered Barack Obama to victory, only for him to fill his Cabinet with bankers, Wall Street–friendly lobbyists, and moderates who
sabotaged a more aggressive response to the financial crisis and sanded the
populist edges off Obama’s powerful campaign message. “We were flat-footed
during the transition, and that’s when the die was cast,” said David Segal, executive
director of Demand Progress, a left group focused on combating corporate and
monopoly power. “This time is different. We’re watching. We’re mobilized. We can’t
let this White House be staffed by the same plutocrats.”   Segal and a growing number of activists on the left are calling
on Biden and the Democrats to use hardball tactics, like those embraced
by Senate Majority Leader McConnell over the last four years, to staff the
executive branch with liberal allies—using recess appointments and the
Vacancies Act. Meanwhile, a group of 70 Indivisible chapters in New York are urging
their senator, Minority Leader Chuck Schumer, known to fear a primary challenge
from his left flank, to endorse these tactics publicly and refuse to confirm “executives
of major corporations, lobbyists, and prominent corporate consultants” to the Cabinet and other top posts. “We take our role as constituents of Chuck Schumer very seriously,” said
Kellie Leeson of Empire State Indivisible. “And we want Schumer to be with us
demanding a Biden administration that fights for working people and reflects
the diversity of the country.” “Any deference to McConnell right now, given the crises we face, would be
pathological.” Schumer’s office declined to comment for this story. But on Thursday, he met with representatives of New York’s Indivisible chapters, where,
according to a tweet
from one of the attendees, Schumer “expressed his commitment to fighting for a
progressive Biden administration—including leveraging tools like the Vacancy
Act to ensure obstruction won’t prevent Democrats from getting to work.”  Biden may seek to use divided government as an excuse to scale
back his ambitious economic agenda; he may allow climate change to continue unabated
because Lisa Murkowski or Mitt Romney won’t vote for an EPA chief with a spine;
and he may prefer to give over the reins of the rest of his Cabinet to self-dealing
CEOs and lobbyists because, hey, that’s business, and these guys really know
their industry —but that doesn’t mean liberals and leftists have to accept
that fate. Not yet, anyway. If Republicans maintain control of the Senate, the
composition of the executive branch will be vitally important; executive power
and agency rulemaking—rather than legislation—may be the easiest path to
change. On Wednesday, the Sunrise Movement and Justice Democrats called
on Biden to “seize the climate mandate” he received from American voters,
create a White House Office of Climate Mobilization (one of the recommendations
made by the policy task forces Biden put together this summer, with help from
Bernie Sanders and others on the left), and appoint liberals to key leadership
posts, including Elizabeth Warren to Treasury, Keith Ellison to attorney general,
and Barbara Lee to secretary of state. But getting left-leaning nominees confirmed by a chamber
controlled by McConnell will not be easy.  Biden clearly hopes that his long-standing
relationship with McConnell will enable him to forge productive compromises
with the notoriously obstructionist Kentucky senator. But even some moderate
Democrats see the folly in that thinking. “McConnell will force Joe Biden to
negotiate every single Cabinet secretary, every single district court judge, every
single U.S. attorney with him,” Connecticut Senator Chris Murphy told
Politico two days after the election. “My guess is we’ll have a constitutional crisis
pretty immediately.” To Waleed Shahid, spokesperson for the left-wing group Justice
Democrats, the idea that Biden would consider deferring to McConnell is
maddening. “McConnell and his colleagues are going on TV—right now—amplifying
President Trump’s claims that Joe Biden has stolen the election. They’re
delegitimizing the next four years of his presidency,” he said. “For Democrats
to hint that they would then allow Mitch to have a say in their priorities is
absolutely insane.”  For those who care
about preserving the norms of the Senate, threatening to break them might be
the best way forward. Segal of Demand Progress framed the fight in similar terms.
“Any deference to McConnell right now, given the crises we face, would be
pathological.… McConnell made explicit during the 2008 economic crisis that his
goal was not to improve the welfare of the American people but to make
sure that Barack Obama was a one-term president. That meant ensuring the crisis
response was stymied.” Segal fully expects the Kentucky senator to do the same in
the face of today’s economic, ecological, and health crises. “Anybody who could get McConnell’s blessing is
definitionally someone who is not up to the task of meeting the challenges that
are before us,” he said. Instead, Demand Progress and the Revolving Door Project, which
scrutinizes executive branch appointees from an anti-corporate perspective,
have been pushing Democrats to embrace two hardball tactics that would allow a
President Biden to circumvent McConnell’s obstruction. They include, first, appointing
“acting” secretaries and agency heads under the Federal
Vacancies Reform Act and, second, adjourning Congress to force a congressional recess, during which the president can make recess appointments
without Senate approval. Both methods have their limitations. The Vacancies Act
allows the president to appoint two types of officials to Cabinet-level posts: those
already confirmed by the Senate to another “advice-and-consent” role and senior
employees (GS-15 or higher) from within the agency or department they would be
overseeing. At the moment, the former pool is effectively limited to Democrats serving multiyear
terms on independent commissions—such as Warren ally Rohit Chopra and former
Schumer chief counsel Rebecca Kelley Slaughter at the Federal Trade Commission;
or the Federal Election Commission’s Ellen Weintraub, an opponent of corporate “dark
money.” The latter pool is larger; there are many committed, liberal civil
servants in the federal bureaucracy. The challenge for the Biden administration
will be identifying them and lifting them up. (A few outside organizations have
been working, quietly, to do this already.) As for recess appointments, anyone (not just current
officials) can be appointed during a recess. But creating one requires some
parliamentary machination: The speaker of the House must first engineer a
disagreement with McConnell over adjourning, at which time the president can
intervene, under the Presidential Adjournment Clause in the Constitution, to prorogue
Congress and force a recess. Steve Vladeck, an expert on federal courts and
constitutional law at Texas University, believes this path is “theoretically
available but unlikely to be worth the backlash.” Only if the other channels
aren’t available, he said, would it be “worth discussing the prorogation idea.” All of these tactics, said Brianne J. Gorod, chief counsel
of the Constitutional Accountability Center, are “constitutional hardball.” But
they are constitutional, written in the text. “The Recess Appointments
Clause and the federal vacancies law both exist for a simple reason: to ensure
that the executive branch can be staffed and the president can do his job,”
Gorod told me. “If President Biden ends up facing a Republican-controlled Senate
that prioritizes obstruction over governance, there should be nothing
surprising about President Biden using the tools the law gives him to ensure he
can do the job the American people elected him to do.” Of course, a conservative Supreme Court could still find
reason to intervene if Biden deploys these tactics at scale. Anne Joseph
O’Connell, an expert on administrative law and the Vacancies Act, in particular, at Stanford, said that the court—especially the textualists—might use the
Appointments Clause to prevent Biden from installing too many “acting”
secretaries without the approval of the Senate.    As Segal and others pointed out, however, wielding these
tactics as a credible threat could force McConnell to be more deferential to
Biden’s Cabinet appointees—as was the custom for centuries. For those who care
about preserving the norms of the Senate, threatening to break them might be
the best way forward. Chuck Schumer is an interesting player in this fight. The New York senator has a precarious fate. On the one hand, he holds enormous influence over the
Biden administration, its Cabinet and its agenda. On the other, Representative Alexandria Ocasio-Cortez’s path
to higher office may run through his Senate seat. (Asked about her political
future, AOC told The New York Times that she’ll know more “as we get
through the transition.… How the party responds will very much inform my
approach and what I think is going to be necessary.”) Fearing a primary
challenge from AOC or another left candidate—backed by Justice Democrats or the
Democratic Socialists of America—Schumer has sought to fortify his left flank,
recently calling on
Biden to forgive a portion of student debt as soon as he takes office.  Meanwhile, New York’s left has been scrutinizing his every
move. Like many Democrats, antitrust expert and liberal activist Zephyr
Teachout was disappointed Schumer didn’t fight harder against the nomination of
Amy Coney Barrett to the Supreme Court. “He didn’t put up the fight he
could have against Barrett, or other judicial nominees,” she said. When it
comes to Biden’s Cabinet, she said, “He’s got a chance to show he’s done
treating McConnell as if he’s a decent, reasonable, counterpart.” Meanwhile, the implicit threat of a primary challenge looms.
“It’s not going to look great if Chuck Schumer is seen as the person signing
off on toxic compromises that allow Mitch McConnell to get what he wants,”
Shahid of Justice Democrats said. “Schumer knows very well that the progressive
movement is a powerful force in New York, especially as longtime incumbents
keep losing primary challenges here. Democrats of all stripes who helped
deliver this majority will be incredibly angry if they feel like Schumer isn’t
fighting for them—and, instead, fighting to make deals with Mitch McConnell.”   For the time being, Schumer is focused on winning the
Georgia runoffs. Indeed, the best-case scenario for everyone on the left is that
the Democrats beat the odds and achieve a majority. But if they fall short, Schumer’s
situation becomes much more tenuous. As majority leader, Schumer would at least
be positioned to throw a few bones to the left, forcing Biden to give him some liberal
darlings to confirm—in exchange for signing off on some of Biden’s more moderate
picks. Without Senate control, however, the candidates Biden is most likely to
send through the normal channels are centrists capable of earning at least a
few Republican votes. Every one of those nominees Schumer encourages his caucus
to support is a point against him with the left, a stain that will not be forgotten
when his term is up in 2022. Thus—activists are calculating—Schumer’s political future depends
on getting Biden to play constitutional hardball when it comes to the Cabinet.
It’s a bold but strategic calculation, a sign of a movement acutely aware of
its power and its limitations. And it just might work. 

2020-11-16 | Sold Short, Politics, Mitch McConnell | English |