Senate gridlock and voting

President Obama warned recently that the “gridlock [which] reigns” in Washington could become “a self-fulfilling prophesy” of cynicism and dysfunction if voters fail to hold politicians accountable at the polls. That same gridlock could make it harder for Americans to vote and have their ballots counted as cast.  

In a study released last week, Common Cause found that a record number of pending executive and independent agency nominations are stalled on the Senate floor, despite filibuster reform that ended the 60-vote rule for most nominations.  The person waiting the longest for a vote is Thomas Hicks, an Obama nominee for the Election Assistance Commission (“EAC”). His nomination has been pending for over four years – since April 2010. Waiting the third longest (over three years) is Myrna Pérez, also to serve on the EAC.

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This is no accident. It’s part of a larger strategy of obstructing action on the president’s executive nominations. When the report went to print last week, 115 executive and independent agency nominees were pending on the floor. At this point in President George W. Bush’s administration, only 34 were pending on the Senate floor. Under President Clinton, there were just 12.

To the Senate’s shame, the EAC has not had a single commissioner since 2011. It should have four, with no more than two from any one political party.

Congress set up the EAC as part of the Help America Vote Act in 2002 so that a Florida-style debacle like the one that marred the 2000 election would never again embarrass the country. The commission is a resource to voters and election administrators in the 8,000 local jurisdictions responsible for running elections. It operates a program to test and certify voting machines, publishes important research and well-regarded surveys on election administration, trains local election officials in best practices, reports to Congress on the implementation of the motor voter law, and serves as a clearinghouse for election administration-related information, among other tasks. 

The ongoing absence of EAC commissioners hinders the agency when Americans need it most. Without commissioners, the EAC cannot hold public meetings, adopt new policies, or issue advisory opinions. Its most recent voting system guidelines were adopted in 2005 – several lifetimes ago when it comes to technology. The absence of EAC commissioners is part of why so many jurisdictions ran the 2012 election with outdated, broken voting machines and why so many voters waited in line for hours to cast their ballots.

The bipartisan Presidential Commission on Election Administration, co-chaired by the general counsels of the Obama and Romney 2012 campaigns, wrote earlier this year that “the standard-setting process for new voting machines has broken down … due to a lack of [EAC] commissioners. … Without a fully functioning EAC to adopt new standards, many new technologies that might better serve local election administrators are not being brought to the marketplace.”

Rather than cooperate in the EAC confirmation process, Republicans have used gridlock to shut the commission down. They argue that the agency costs too much and has outlived its mission, so they refuse to confirm nominees they acknowledge are qualified. The tactic fits a GOP pattern that veteran congressional analysts Norm Ornstein and Tom Mann have dubbed “the new nullification.”

In the House, Rep. Candice Miller (R-Mich.) told USA Today that “there’s just no reason for this agency to exist. We need to shut it down.” The committee she chairs endorsed a bill that would do just that – ominously named the “Election Assistance Commission Termination Act.”  

Meanwhile, in the Senate, Hicks’ and Pérez’s nominations have languished for years. During the EAC nomination hearings, Sen. Charles Grassley (R-Iowa) said that “because Republicans have called for elimination of the agency, we have not put forward new nominees.” His remarks notwithstanding, recent reports indicate that the Republicans did recommend GOP names to join the pending Democratic nominees, an acknowledgement that the new filibuster rules will make it harder to block the Democratic appointments.

Still, a four year wait to hold a single EAC confirmation vote is inexcusable. The Constitution requires that senators provide “advice and consent” on presidential nominations by voting yea or nay. Voters should not be the ones paying the price for this brand of gridlock at the polls in November.

Spaulding is policy counsel for Common Cause, a liberal advocacy group..