Just Skip The Senate To Install A Cabinet, Progressives Urge Joe Biden

Activists are urging the president-elect to look closely at a 1998 law called the Vacancy Act.

President-elect Joe Biden faces the very real possibility of taking office with a Senate controlled by Republicans, ready to block him at every turn. Progressive activists say they have a simple solution, at least when it comes to installing his top officials: Just go around Congress.

The Senate is currently split, with two races still to be called and two others in Georgia to be decided in Jan. 5 runoffs.

Allies of Senate Majority Leader Mitch McConnell (R-Ky.) told Axios last week that a GOP-controlled Senate would be willing to go along with Biden’s nominations for his administration, as long as they’re centrists.

But progressive activists say that path would be unacceptable, and they’re already putting pressure on the incoming Biden administration to go around the Senate so that McConnell doesn’t get to decide a Democratic Cabinet.

“There are legal tools are available and Biden should be unafraid to use every legal tool available — just as McConnell has used to stack the courts,” said Jeff Hauser, founder and director of the Revolving Door Project, which scrutinizes executive branch appointees for their ties to corporate interests.

The two main options center around using a law called the Vacancy Act, and appointing officials when the Senate is in recess. Transition officials have so far been unwilling to discuss what sort of strategies they’re considering.

The first option is a 1998 law that allows a president to temporarily fill vacant executive branch positions that typically require Senate confirmation with “acting” secretaries.

“There’s no need to heed to McConnell’s demands to install corporatists,” said David Segal, who runs the group Demand Progress and has been leading the progressive effort to influence the Biden transition process. “He’s got to [appoint liberal Cabinet members] If he’s got any chance to attack the crises before us and stave off total democratic collapse in the midterms.”

Demand Progress and the progressive group Data for Progress ran a survey in September that looked at support for the types of people Biden could install in his administration, which they shared with HuffPost. A majority of likely voters all said that lobbyists, Wall Street executives, executives of large technology companies and oil and gas executives all already have too much influence over government policy.

In other words, these groups argue, picking the types of people who usually have power in Washington ― and could perhaps get McConnell’s approval ― will be a bad idea.

Trump has relied heavily on acting secretaries to run the administration, including for high-profile positions like for the Office of Management and Budget director, the director of national intelligence as well as the head of the Department of Homeland Security, which has not had an official head since early 2019.

Installing these temporary picks through the Vacancy Act is limited. They can serve for only 210 days once the position becomes open, although it can be extended if the president nominates someone to be the permanent secretary.

Still, that period would be long enough for Biden to enact the agenda of his first 100 days and to start to address the most pressing crises, including the raging coronavirus pandemic and the struggling economy.

Mitch McConnell (R-Ky.) may very well still be majority leader under a Biden administration.
Mitch McConnell (R-Ky.) may very well still be majority leader under a Biden administration.
Timothy D. Easley/Associated Press

Even aside from appointments, Democrats are hoping that Biden uses his executive authority to get as much done on policy as he can without the Senate.

Biden’s got to use executive orders,” Sen. Sherrod Brown (D-Ohio) said on MSNBC last week.

“It’s important to get personnel right so that you can use executive authority robustly, and in this context it will also be important to use executive authority robustly to get personnel right,” said a Democratic Senate strategist who requested anonymity to speak freely.

Progressives argue that unless Democrats pick firmly liberal officials for top posts in the new administration, the party will face even more crushing results in the next election cycle.

“The many people who swung back to Democrats relative to Trump need to see that Biden is in a position to actually address the crisis,” Segal said. “We need to not repeat 2010 — 2010 was not a function of too much response to the crisis, it was a combination of insufficiency and too much largess to corporations.”

Democrats lost control of the House majority in 2010, fundamentally changing the course of President Barack Obama’s remaining years in office.

Biden’s administration could also make appointments when the Senate is in recess, according to Segal. But the Senate has, in the past, blocked the president from making recess appointments by scheduling “pro forma” sessions ― when the Senate meets for a very short time to avoid technically being in recess.

These acting appointments aren’t without drawbacks. Government experts say they don’t have the full authority within their departments of someone who is Senate-confirmed, and their temporary nature makes it harder for them to implement a full agenda.

But supporters of this approach say it’s better than allowing an opposing party hellbent on blocking Biden’s agenda from controlling the entire process.

Biden has already received backlash for some of his more centrist influences; over the summer his campaign had to distance itself from Larry Summers, a longtime economic adviser who has become a bogeyman on the left for his ties to Wall Street and Silicon Valley and for repeatedly backing bailouts for big financial institutions.

Biden won with a large, ideologically diverse coalition. It includes corporate-friendly moderate Democrats who have long been at the center of power in Washington, and a growing progressive grassroots, advocating for the working class. And people from both sides of the spectrum ― and even a few Republicans ― have been discussed as Cabinet secretary choices.

Rep. Alexandria Ocasio-Cortez (D-N.Y.) told The New York Times that if the administration shuts out progressives and caters to centrists and conservatives, it will be disappointing ― and will alienate a portion of the country that the Democratic Party needs to win.

“These transition appointments, they send a signal. They tell a story of who the administration credits with this victory,” she said. “And so it’s going be really hard after immigrant youth activists helped potentially deliver Arizona and Nevada. It’s going to be really hard after Detroit and Rashida Tlaib ran up the numbers in her district. It’s really hard for us to turn out nonvoters when they feel like nothing changes for them. When they feel like people don’t see them, or even acknowledge their turnout.”

If the Senate continues to be controlled by McConnell, Biden would have an easy excuse to pick more moderate figures to be part of his administration. But it could also hamper much of his agenda, which is certainly more progressive than any Democratic presidential candidate in recent history.

“We’ve always been worried that Biden’s not going to have the will or interest in using his authority aggressively,” the Democratic Senate strategist said. “But hopefully he’ll see that it will be necessary for his administration to get anything done and ultimately to succeed.”

“There is a corporate wing of each party and they could definitely make deals together,” Hauser said. “I’m definitely worried that they might say that the election means we should go to the center.”

For now outside groups and labor organizers who have also been involved in transition talks — at least on the periphery — are not giving up hope on Democrats’ chances in the Senate.

Mary Kay Henry, the president of the Service Employees Union International (SEIU), who has a direct line to the Biden campaign, told HuffPost she’s not yet entertaining the idea of a McConnell-led Senate. Her members are planning on organizing around an outstanding race in North Carolina and the possibility of two runoff elections in Georgia.

Losing the Senate, she said, however, will not be an excuse to lower the party’s ambitions.

“We just had essential workers turned out in this election and created a record-setting vote in this country,” Henry said. “We are not going to reduce our expectations one bit no matter who is in the Senate. They have to understand their political future rests on taking bold and dramatic actions to address the crises of a generation.”

CORRECTION: An earlier version of this article misstated the date of the Senate runoffs in Georgia; it will be held on January 5, not January 30.

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