Senator Shelby and the Blanket Holds

TPMDC reports, Report: Shelby Blocks All Obama Nominations In The Senate Over AL Earmarks:

Sen. Richard Shelby (R-AL) has put an extraordinary "blanket hold" on at least 70 nominations President Obama has sent to the Senate, according to multiple reports this evening. The hold means no nominations can move forward unless Senate Democrats can secure a 60-member cloture vote to break it, or until Shelby lifts the hold.

"While holds are frequent," CongressDaily‘s Dan Friedman and Megan Scully report (sub. req.), "Senate aides said a blanket hold represents a far more aggressive use of the power than is normal." The magazine reported aides to Senate Majority Leader Harry Reid were the source of the news about Shelby’s blanket hold.

The Mobile Press-Register further reports:

In response to a question from the Press-Register, Reid spokeswoman Regan Lachapelle confirmed that Shelby has placed a "blanket hold" on most pending nominations.

[…]

It is not clear when Shelby placed the hold or how many nominees are affected. While individual holds are not unusual, Gary Jacobson, a congressional expert at the University of California at San Diego, said he knew of no previous use of a blanket hold.

The sources of Shelby’s ire is a contract to building a refueling tanker for the US Air Force and an FBI explosives lab (the most detailed piece on these can be found at ABC’s the Note: What’s Holding Up Security Nominees? Alabama Pork).

This raises a number of issues, specifically: earmarks, pork and holds.

I. Earmarks. In fairness, I think that the TMPDC’s usage of the term “earmarks” is inaccurate here, as least in terms of the way it has been bandied about in the political vernacular of late. The usage is legitimate in the sense that the monies in question (for the tanker and the explosives lab) have been designated (or, in a broad sense, earmarked) for Alabama (but then again, all funds in a given budget are earmarked in the most general sense of the term). However, the controversy over earmarks that has been in the news over the last several years have typically referred to specific set-asides of funds already appropriated for specific programs or projects in a given legislator’s district or state in a way that is almost invisible. It does not refer to the creation of large new programs, like a new defense contract.

The Congressional Research service notes [PDF]:

In the broadest definition, according to Congressional Quarterly’s American Congressional Dictionary, “virtually every appropriation is earmarked.” In practice, however, earmarks generally are defined more narrowly, often reflecting procedures established over time that may differ from one appropriation bill to another. For some bills, an earmark may refer to funds set aside within an account for a specified program, project, activity, institution, or location. In others, the application may reflect a more narrow set of directives to fund individual projects, locations, or institutions. The Office of Management and Budget (OMB) uses a different definition of earmarks, namely specified funds for projects, activities, or institutions not requested by the executive, or add-ons to requested funds which Congress directs for specific activities.

Indeed, the report linked ends up using a specific definition of “earmark” for each area of appropriation under the congressional budget process. For defense appropriations it uses the following:

If earmarking is defined broadly, therefore, virtually all funds in defense bills are fully earmarked. Usually, however, in the case of defense-related legislation, the term earmark is used to mean allocating funds at a level of specificity below the normal line item level. Understood in this way, a congressional committee would not be said to earmark funds if it adds money to buy additional fighter aircraft, for example, but would be said to earmark funds if it specifies that a particular kind of radar is to be incorporated into an aircraft upgrade program.

In this sense, I don’t think either of the programs in question qualify as earmarks—certainly not the tanker contract. I suppose the FBI lab might be, but that strikes me as a “line item level” expenditure, but I could be mistaken.

II. Pork. Are these matters properly defined as “pork?” I suppose, insofar as any federal spending spent in a given state is pork (which is most of spending on programs). I have some passing knowledge of the tanker issue (although none about the explosive lab issue) and it is worth noting that the reason that the process has not proceeded is because other states that have the competitors for the contract have asserted themselves into the process (in other words, they want to bring the bacon home to their states). On the one hand, any spending one can get for one’s state is, after a fashion, pork. However, in the sense that this is spending that wasn’t going to take place save for Shelby’s ability to tap into the largesse of the state is not the case. The issue is where the contract will be awarded (companies in Alabama or the state of Washington) and therefore which state will get the jobs and inflow of spending. For Shelby to defend his state, which was originally awarded the contract, is hardly a surprise or an unusual behavior. To characterize this as “pork” may have accurate in some senses of the term, on the other what we have here is normal legislative behavior in regards to a Senator fighting for the interests of his constituents.

Put this way: Alabama citizens in the Mobile area fought for a defense contract and thought they were awarded it and expected an influx of jobs and investment (likewise citizens in the state of Washington were disappointed to have failed to secure said contract). I am not surprised or upset, nor should anyone else be, that Shelby is fighting for the interests of his state.

However…

III. Holds. Having said all that, the usage of holds, let alone a blanket hold of dozens of appointees, strikes me as both indefensible and an example of the need for serious structural reform to the Senate. Yes, the Senate has the constitutional power to advise the President on appointees and it has to consent to those appointments. However, there is no constitutional reason why an individual Senator ought to have the power to block nominations. Indeed, the sources of this power are a combination of Senate norms and the filibuster rule—the notion that Senators have any number of personal privileges because of their Senator-ness (so to speak) and the fact that theoretically a single Senator can filibuster the nomination, so why not just assume that the hold is a filibuster?

However, it is bad enough that the Senate has evolved into an institution in which the minority rules, but the notion that a single Senator, in a fit of pique, can disrupt the functioning of the federal government on what amounts to simply making a statement behind closed doors is problematic in a democracy, one would think. At a minimum, it would be nice if Shelby (or any Senator engaging in a hold) had to go to the floor to defend the position. As it stands, a hold can be placed and it can take some time before the public is even aware of it. A minority voice (and one out of 100 is a rather small minority) ought not hold this much authority in a legislative body.

IV. Conclusion (added after the original post). By way of seeking clarity, let me note that part of the reason I wrote this was to highlight the fact that the issue should be the holds and the hold process. Instead, I expect that much of the coverage (indeed, some of the stories linked above fall into this category) will focus on whether or not Shelby is a hypocrite on earmarks, rather than on the structural problem of extreme minority power in the legislature. The notion that Senators are going to fight over defense contracts is utterly unremarkable to me in and of itself.

At a minimum, I have to concur with Ezra Klein: “This is really no way to run a government.”