Senator McCaskill’s office sent us a note a few weeks ago reminding us that she and Senator Rob Portman of Ohio would be asking the Senate to start civil contempt proceedings against the website Backpage because it has refused to provide information as part of a committee investigation of sex trafficking. It has been almost two months since the Senate voted to hold the outfit in contempt and we have received no releases from McCaskill or anybody else indicating anything is being done since the headlines were made in March.
But that’s not where we’re headed with this entry today. Not exactly.
We were struck with the thought—you know how one word can trigger a thought different from the issue being discussed—that a system of government so many people are finding contemptible is, at two levels, showing contempt for the system of which it is a part and at the same time one body is trying to hold someone else in contempt. And the public is not blind to it.
The senate that has held the webpage in contempt is the same Senate whose leaders can be accused of showing contempt of the American system of government when it comes to President Obama’s new nominee for the United States Supreme Court.. Closer to home, we suppose, the same could be said of the Missouri Senate whose leadership said weeks ago that it will not consider confirmation of any appointments to the University of Missouri Board Of Curators by Governor Nixon.
In both cases, the Governor and the President have an obligation to make appointments. One of the roles of the Senate at both the state and national levels is to give its advice and consent to the appointments. In neither the state law nor federal constitutions is there anything that gives state and national senates power to—or permission to—refuse to consider for confirmation or rejection any nominee the Governor or the President makes until after an upcoming an election.
But there is a “however” factor.
Neither constitution sets any timetable for confirmation so the Senates can delay any hearings until after the appointing officer’s term runs out. There have been refusals to confirm. But both standards say the President and the Governor WILL make the appointments and those persons WILL serve—if the Senates consent. But there is no ticking clock at either level.
In Missouri, we have a law that says a law goes into effect if the governor takes no action on it, either with a signature or a veto. There is no similar law saying appointments become effective if the Senate takes no action. It might seem fair to some if the “no action” issue cut both ways but don’t expect the Missouri Senate to move toward that kind of balance of powers.
Article II, Section 2 of the U.S. Constitution is clear: “He shall…nominate and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court…..”
Missouri law (172.030) is equally clear: “The board of curators of the University of the State of Missouri shall hereafter consist of nine members, who shall be appointed by the governor, by and with the advice and consent of the senate….”
And 172.050, also referring to Curators: “All vacancies which may exist at or during the meeting of the biennial sessions of the general assembly, caused by death, resignation or removal, shall be filled in like manner as those created by the expiration of official terms…”
The President “shall” appoint justices. The governor “shall” appoint curators. Nothing in the law, nothing in the Constitution, says a governor or a president is excused from that responsibility because they are x-number of months away from leaving office.
In the case of the Board of Curators, the law says the board “shall” consist of nine members. Resignations have reduced that number to six. The Missouri Senate’s refusal to consider confirming new members could be seen, we suppose, as violating state law which implies vacancies “shall” be filled. Again, the loophole is that there’s no defined time for the senate to act on curator nominations.
The refusal by state senators to keep the board at nine curators might seem to violate the oath of office they all raised their hands to take, part of which is: “I do solemnly swear, or affirm, that I will support the Constitution of the United States and of the state of Missouri, and faithfully perform the duties of my office…”
Faithfully performing the duties of office includes giving advice and consent to curators’ appointees. Consent is not required. “Advice and consent” IS required with rejection an option. But lawyers probably could argue that the applicable sections of law do not support refusal to act.
Nothing gives the President, the Governor, or either Senate permission to delay making appointments or giving advice and consent until after an election. But it does not prohibit such things either. One legal source we have looked at refers to the federal Administrative Procedure Act as requiring “courts to determine whether an agency action is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” While the senates are not agencies, they are nonetheless agents of a system of government that is based on a balance of powers.
For that matter, the state law does not prohibit the Senate from decreeing that it will not consider gubernatorial appointments during the entire four or eight years a governor is in office. That’s taking the current situation to an absurd extent. But absurdity is not impossible in politics today, particularly this year.
There is this factor, though: Once appointments are made by Governor Nixon and President Obama, the advantage in a campaign year might shift to Nixon or Obama—or to their political parties that do not occupy the majority of seats in either state or federal legislative bodies. The issue could become how long delays by the senates can continue before the voting public becomes convinced the senates are playing political games instead of doing an assigned duty, and how damaging such a perception could become to incumbent lawmakers facing the voters.
It would not be surprising if a number of average citizen were caused to see the refusal of the senates to give timely, fair, consideration to gubernatorial or presidential nominations of people in critical government positions as a violation of the principle of balance and falling well within the definition of “arbitrary, capricious (and) an abuse of discretion” or violations of terms of office.
And that brings us back to contempt.
The Pew Research Center last year found that only nineteen percent of the American public “can trust the government always or most of the time.” The same survey found that 55% of those surveyed felt “ordinary Americans” could do a better job than elected officials of solving national problems. We keep hearing various experts opine that’s why we have Donald Trump and Bernie Sanders.
Is it any wonder that Americans (and Missourians, of course, are among them) have so much contempt for those in elective office when those officers show contempt for the system they have pledged to uphold?