Political Research Quarterly Volume XX Number X Month XXXX XX-XX Adding Recess Appointments © University of Utah 10.1177/1065912907307541 http://prq.sagepub.com to the President’s “Tool Chest” hosted at http://online.sagepub.com of Unilateral Powers Ryan C. Black Anthony J. Madonna Ryan J. Owens Washington University, Saint Louis, Missouri Michael S. Lynch University of Kansas, Lawrence In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appoint- ment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to impor- tant policy-making positions, namely, major independent agencies. The authors compiled a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory. Keywords: recess appointments; presidential powers; Congress-presidential relations; unilateral presidency; sepa- ration of powers n June 15, 2005, the Federal Elections Commis- reservations about the BCFRA, through a grueling Osion (FEC) published a press release announcing hearing and possible rejection in the Senate, the pres- the resignation of Commissioner Bradley Smith. ident waited for the Senate to recess. Then he Smith’s departure meant that four of the six sitting appointed three candidates to the commission, using commissioners had either resigned or were serving his constitutionally granted power to fill vacancies expired terms. President George W. Bush long had while the Senate is in recess without the advice and opposed the Bipartisan Campaign Finance Reform consent of the Senate. The impact of these recess Act (BCFRA), a key statute enforced by the FEC, and appointments was profound and immediate. As the now the future of the act depended on how Bush’s president likely anticipated, the new commissioners nominees would interpret and apply it.1 Legislators continued to interpret federal campaign finance law who had passed the law and the groups who had sup- in a manner that made it nearly impossible to prove ported it all held their breath, waiting to see whom that groups engaged in illegal, coordinated campaign the president would nominate—if anyone. activity (Schor 2006). Many supporters of the BCFRA expressed concern that President Bush would bypass the Senate and use Authors’ Note: This article benefited from comments made by par- his constitutional power to recess appoint the new FEC ticipants at the 2007 Midwest Political Science Association meet- commissioners. The Washington Post suggested doing ings, the 2007 Southern Political Science Association meetings, and so would be a “gross misuse of the recess appointment the Washington University Center for Empirical Research in the power” (“No Recess” 2005). Writing to the president, Law workshop series. The authors also thank Gary J. Miller, James the sponsors of the BCFRA requested that “you not use F. Spriggs, Andrew D. Martin, and the anonymous reviewers at your recess appointment powers to fill the current Political Research Quarterly for their helpful comments. Madonna 2 thanks the Weidenbaum Center on the Economy, Government, and vacancies at that agency” (McCain et al. 2005). Public Policy. Owens thanks the George H. W. Bush Library But the president did exactly that. Rather than put Foundation and Lynch thanks the Eisenhower Institute for generous his desired appointees, all of whom expressed some financial support of this research. 1 2 Political Research Quarterly This FEC episode highlights two important features positions that normally require senatorial confirma- of the president’s recess appointment power. First, pres- tion.5 In other words, when a vacancy in a federal idents can utilize recess appointments to bypass a office exists and the Senate is in recess, the president Senate or senators that may be hostile to their nomi- can appoint someone to that position without having nees. Second, recess appointments to major indepen- to go through the normal senatorial confirmation dent regulatory boards, like the FEC, can have real process. Recess appointees have all the constitutional policy impact. Together, these features give the pres- powers of a confirmed nominee. The primary distinc- ident a powerful tool to affect policy with limited tion between them and confirmed nominees is the interference from the Senate. amount of time they can serve. A recess appointee Recently, presidential use of recess appointments has must leave office at the end the next Senate session or increased.3 This increase in recess appointments coin- when the vacancy is filled by a confirmed nominee, cides with a growth in contemporary work by presi- making it possible for a recess appointee to serve a dency scholars, which demonstrates how presidents can period of up to nearly two years (Hogue 2007).6 and do use “unilateral powers” to make policy.4 We Presidents in recent years have relied increasingly define a presidential power as “unilateral” if it has the on the recess appointment power. As Figure 1 shows, following three attributes: first, the president manipu- since the late 1980s, presidents have made more lates ambiguities in the Constitution; second, the presi- recess appointments. Not only has the raw number of dent must use the power first and alone, putting the recess appointments increased in recent years (as of legislature and courts in a position such that they must June 2006, President Bush had already made more react to the president’s action; and third, the president’s recess appointments than President Clinton), recess action must affect policy (Howell 2003, 2005; Moe and appointments relative to the total number of nomina- Howell 1999a, 1999b). Examples of unilateral powers tions have increased. Additionally, Figure 1 shows identified by presidential scholars include executive that the percentage of time presidents have chosen to orders (Mayer 1999, 2001; Howell 2003), presidential make recess appointments has more than doubled signing statements (Cooper 2002, 2005), and executive since the late 1980s. agreements (Moe and Howell 1999a). The nomination process discussed in most political In this article, we argue that scholars should include science literature does not consider recess appoint- recess appointments among the unilateral powers ments. Rather, it usually takes the following form. enjoyed by the president. We demonstrate that the pres- The Senate receives the president’s formal nomina- ident’s use of recess appointments arises from ambigui- tion. Its presiding officer then refers that nomination ties in the Constitution, that recess appointments allow to the relevant committee, where the committee chair the president to move first and force Congress and the schedules a hearing. For the nomination to proceed, a courts to react, and that the president uses recess majority of the committee must then report that nom- appointments to affect policy. To demonstrate this, we ination to the floor. If a majority of senators on the compiled a data set of every civilian nomination and floor vote to confirm, the nominee waits for a signed recess appointment made between 1987 and 2004. We commission from the president. argue that presidents, as seekers of policy, are more As such, the nomination process is seen as providing likely to make recess appointments to positions that are the Senate with a strong check on the president’s power most likely to impact federal policy. After controlling to name individuals to federal vacancies. Both theoreti- for other factors, we find that presidents are more likely cal literature (Chang 2001; Nokken and Sala 2000; to make recess appointments to major independent Snyder and Weingast 2000; Moraski and Shipan 1999; boards and agencies. Since such boards and agencies are Hammond and Hill 1993; Calvert, McCubbins, and important policy makers in the federal bureaucracy, we Weingast 1989) and empirical literature (Nixon 2004; find this to be evidence that supports our theory. As Chang 2001; Snyder and Weingast 2000; McCarty and such, we argue that the power to make recess appoint- Razaghian 1999; Krutz, Fleisher, and Bond 1998) gen- ments should be added to the president’s “tool chest” of erally find that the president and the Senate share influ- unilateral powers (Howell 2003). ence over the nomination process. Corley (2006) provided the only systematic, empiri- Recess Appointments cal analysis of recess appointments in the political science literature to date. She sought to explain the con- Article II, section 2 of the Constitution allows ditions under which presidents made recess appoint- presidents, when the Senate is in recess, to fill vacant ments to independent regulatory commissions.7 Counter Black et al. / Adding Recess Appointments to the President’s “Tool Chest” 3 Figure 1 Trends in the Usage of Recess Appointments Number of Recess Appointments Percent of Recess Appointments 60 20 18 50 16 14 40 12 30 10 8 20 6 Percent of Recess Appointments Number of Recess Appointments 4 10 2 0 0 1987 1989 1991 1993 1995 1997 1999 2001 2003 1987 1989 1991 1993 1995 1997 1999 2001 2003 Year Year Note: Data collected by the authors (see note 15). The data begin with 1987 and conclude with 2004. Figures include a Lowess