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Seeking answers on own FERC nominee, Democrats can do little to stop GOP pick

Frustrated U.S. Senate Democrats are asking why the Trump administration has not yet nominated a fully vetted Democrat to an open seat at the Federal Energy Regulatory Commission, but they can do little to hold up the nomination of GOP-backed James Danly to force the issue.

The White House on Sept. 30 announced its intent to nominate Danly, a Republican and FERC's general counsel, to fill the seat at the commission previously held by former Chairman Kevin McIntyre, who died in January. FERC has two Republican members and one Democrat, leaving two open seats. No more than three FERC members can belong to the same party, meaning one of the existing seats must be filled by a Democrat or Independent.

U.S. Sen. Lisa Murkowski, R-Alaska, who chairs the Senate Committee on Energy and Natural Resources, said she is eager to fill McIntyre's old seat even if the White House does not put forth a Democratic nominee soon.

SNL Image

FERC nominee James Danly.
Source: Federal Energy Regulatory Commission

"If [Senate Democratic Leader] Chuck Schumer can get his pick out of the White House, it could move forward with somebody," Murkowski told reporters Oct. 22. "But right now, I've been waiting nine months to get the McIntyre slot filled, and I really don't want to wait too much longer."

However, green groups and Democratic lawmakers said the White House's decision not to move Danly's nomination with a Democrat would upset decades of bipartisan pairings for FERC candidates, particularly since Democrats are said to have settled on lawyer Allison Clements as their party's nominee.

Senate energy committee Ranking Member Joe Manchin, D-W.Va., said Oct. 22 that the FBI had notified Clements that she was fully vetted, so the White House "can't use the excuse that she's not ready to go."

"We have no idea what the holdup is," Manchin said. "When I spoke to [President Donald Trump] three or four weeks ago, he seemed to have no problem with [Clements] ... So I don't know. I'm going to try to get a hold of him and just ask him about it."

In terms of a possible hold on Danly's nomination, Manchin said, "Lisa Murkowski is my friend, and we're trying to work through that."

Meanwhile, Schumer has reportedly threatened to block any legislation from the Senate energy committee from reaching the Senate floor unless a Democrat is advanced alongside Danly. Senators also have the option of placing an informal "hold" on nominations they do not support, which is effectively a threat to object to unanimous consent or to filibuster a nomination.

But continued efforts to weaken the Senate filibuster mean Republicans could easily overcome a hold on Danly's nomination should Democrats pursue one. Murkowski said Oct. 22 that she was not aware of any Democratic committee members wanting to pursue a hold on Danly, with the White House only recently submitting Danly's nomination paperwork to the Senate.

How a hold works

According to a 2017 report from the Congressional Research Service, a Senate hold is an informal practice lawmakers use to inform Senate leaders, often via letter, of their policy views and scheduling preferences on a particular matter. For lawmakers opposing a particular nominee or who want to extract some type of concession to advance that individual, a hold is essentially an objection to unanimous consent to proceed to a vote on a nomination.

Who files a hold and why are not always made public. In 2012, the Senate adopted a standing order aimed at making holds more transparent. The resolution required senators that submit a hold to deliver their objection notices for publication in the Senate calendar within two session days of sending a written objection to party leaders.

The objecting senator, however, can avoid publishing a hold request if another senator agrees to place a hold on the same matter before the two-day time limit ends, effectively allowing the original lawmaker to lift their hold before he or she is required to publish notice of it. That "tag-team" approach can allow lawmakers to indefinitely postpone publishing their holds.

But even then, the Senate majority leader can decide not to honor a hold, leaving opposing lawmakers with another option; they can filibuster a nominee, extending the debate on their nomination to avoid a vote on confirmation. But in 2013, former Democratic Majority Leader Harry Reid of Nevada invoked the "nuclear option" to abolish the filibuster for most presidential appointments, meaning that debate on those nominations can end with support from just 51 senators instead of the 60 votes needed to overcome a filibuster.

Four years later, Senate Majority Leader Mitch McConnell, R-Ky., abolished the filibuster for U.S. Supreme Court nominees to confirm Justice Neil Gorsuch. McConnell has reduced the amount of time for debating nominees from 30 hours to two hours, meaning Danly and other Trump administration nominees can now be confirmed much more quickly.

The procedural changes mean Republicans, who have a 53-47 majority in the Senate, "can just roll over [Democrats] if they want" on nominations, Josh Huder, a senior fellow at Georgetown University's Government Affairs Institute, said in an interview.

At least some of the Senate procedural changes working against the Senate minority party could be eliminated starting in 2021. For instance, McConnell's move to limit the debate time to two hours for most nominees will expire at the end of the current Congress spanning 2019-2020.

"This could have a huge effect," Huder said in a blog post. "It is unlikely that the majority leader [next Congress], whoever that may be, has … the followership in the respective caucuses to force all-night sessions on a routine basis o r… the desire to use days of floor debate on lower level nominations, forcing the Senate to delay action on other bills or nominations."