November 20, 2020
The American Prospect
Last week, Mitch McConnell chose to fan the flames of baseless electoral conspiracy rather than acknowledge Joe Biden’s indisputable victory. Meanwhile, prominent Democrats took to the airwaves to insist that working with McConnell would not be nearly as hard as people claimed. This is dangerous, wishful thinking.
We fear, however, that even those who have removed the rose-colored glasses may not be prepared for the level of obstruction that the Biden administration will face if Democrats don’t pick up both Georgia Senate seats. One needs to look at only a single example to understand how bad it could be. No, not Merrick Garland, though that is apt. McConnell’s refusal to hold a vote to confirm nominees to an obscure but important agency—the Merit Systems Protection Board (MSPB)—left it unable to serve a civil service under attack for the past four years. If given the chance, McConnell will not hesitate to do the same across President Biden’s administration.
What is the MSPB? This independent agency offers civil servants a venue in which to appeal disciplinary action. Maybe a civil servant has been demoted, transferred, or fired for blowing the whistle or contradicting the White House line (sound familiar?). Unlike most wronged employees in the private sector, civil servants have recourse to appeal. Their case would work its way through a process and, potentially, reach the MSPB for a final decision on whether to uphold or reverse the firing.
Remarkably, since January of 2017, cases have been coming to the MSPB and, then, just stopping. It was at that time that one of the board’s two remaining members stepped down, robbing the agency of a quorum and, thus, the ability to decide cases. Later on, the other member’s term expired, so the board currently has nobody sitting to actively determine cases. So they’ve just piled up. The MSPB faces a backlog of 3,000 cases, a quarter of them whistleblower complaints, and evidence of malfeasance languishes in office boxes far from public scrutiny. Meanwhile, public servants’ lives are in limbo as they await final determinations.
The consequences of the board’s incapacitation have almost certainly extended far beyond those 3,000 pending cases. The board also has a role to play protecting whistleblowers before agency leadership retaliates. Without a functioning board, potential whistleblowers face an interminable appeals process in case of retaliation. This has almost certainly led to many thinking twice about speaking up. As the Trump administration continues its rampage against our governing institutions, and civil servants could stand in its way, this should cause more than a little concern.
So why exactly is the board without a single member? As one would expect, Trump gets some of the blame. The president neglected to nominate new members to the board for over a year after it lost a quorum. Still, that only accounts for a small portion of the delay. The remaining three years fall squarely on Mitch McConnell’s shoulders.
On two separate occasions, a sufficient number of nominees to restore a quorum have been voted out of committee, only to languish, awaiting McConnell’s decision to schedule a final confirmation vote. The first set of nominations expired at the end of the 115th Congress. The same fate awaits the second batch as the end of the 116th approaches.
Why? Perhaps McConnell was just too busy confirming judges, though it would only take a couple of hours of floor time to move these nominees. It may also have been a strategy to reduce obstacles for an administration he has consistently sought to enable. In all likelihood, McConnell is obstructing this agency from doing its job because he can. This is most worrying of all, because it suggests that he will not hesitate to repeat and, indeed, expand upon this trick in the next administration.
McConnell doesn’t care if the government doesn’t work. In fact, the government’s dysfunction is what helps his corporate donors skirt the law and amass wealth while the majority of the public suffers. Lesser-known but nonetheless important agencies like the MSPB are particularly prone to GOP manipulation that ultimately harms civil servants, prevents accountability, and debilitates government from within. When presented with the opportunity to deny Biden the ability to make the government work, McConnell will likely seize it with glee.
President-elect Joe Biden must meet McConnell’s obstructionist strategy with equal opposing force. What would that look like? Extensive use of the Vacancies Act to fill Senate-confirmed positions, for one. That well-used tool, however, does not apply at independent agencies like the MSPB. There, Biden will need to get a bit more creative. To fill vacant seats at the MSPB and other agencies like it, Biden can adjourn Congress and install people via recess appointments. Though temporary, these solutions will be necessary to get agencies like the Merit Systems Protection Board functioning again so they can start on the difficult task of resuscitating a federal government so thoroughly broken by the Trump administration.
As McConnell still refuses to publicly acknowledge Biden’s win, Democrats must counter these autocratic political maneuvers with equal commitments to preserve democracy. While these actions may be unorthodox, they are lawful and necessary to meet an equally unprecedented moment marked by historic norm-breaking, a pandemic, and corollary economic crises. To fulfill his campaign promises, Biden must use all the tools at his disposal to make government function again.