Masters of a Pro Forma Senate

Posted January 4, 2008 at 6:25pm

The chamber is lit, the camera rolling, the door guarded and the gavel at the ready.

Full of sound and fury, but signifying nothing, a lone Senator strides to the dais and convenes a non-session of the U.S. Senate, gaveling it closed moments later.

The Senate doors swing open, and like a winter breeze the Senator blows out and is gone. The Senate is now, once again, but not quite, in recess.

Every few days since mid- December, the Senate has been convened for less than a minute and then adjourned again, a defensive maneuver organized by Democrats to prevent President Bush from using the recess to install political appointees who would have no chance of winning Senate confirmation.

It looks like a regular Senate session, clerks at the ready, stenographers in the well, but it is over in the blink of an eye. According to the Congressional Record, the Senate met on Dec. 28 at 10:00:59 and recessed at 10:01:23.

That morning, it was Sen. Byron Dorgan (D-N.D.) taking his turn at starting up the engine of government so its battery wouldn’t die during the long winter break.

“We prefer not to do this, but we don’t have much choice,” Dorgan explained to the only reporter waiting in the hallway. The White House wants to make “appointments that could not possibly be confirmed by the Senate … through recess appointments and we aren’t going to let them do that.”

It seems like a long way for a Senator to come to conduct a 24-second session of the “world’s greatest deliberative body,” but Dorgan said he made a family event out of it. “I’m here for a couple of days with my kids,” he said. “They are back from college.”

The trip is shorter for Sen. Jim Webb (D-Va.), who will have taken four turns at the gavel before the full Senate returns.

“I didn’t want to shave this morning,” Webb said one chilly morning in December after opening and closing a 26-second session. But, he said, the prerogatives of the Congress are worth the inconvenience.

“This is a really important principle to lay down,” Webb said. “The administration is violating the intent of the provision of the Constitution” that allows for recess appointments.

Majority Leader Harry Reid (D-Nev.) decided late last month to keep the Senate operating in pro forma sessions after attempts to secure a deal with the White House to avoid them broke down.

The two sides had been engaged in intense, closed-door negotiations for several days to try to craft an agreement whereby the Senate would adjourn for the year so long as Bush promised not to install any controversial executive branch appointees while Senators were out of town. The efforts fell short, according to Reid, because the White House insisted on last-minute confirmation of Steven Bradbury to be assistant counsel to the attorney general.

When attempts at a similar deal didn’t pan out with Bush in November, Reid also opted to keep the Senate in pro forma business for a series of seconds-only sessions. Webb and Dorgan were among those Senators on deck for the Thanksgiving gavel duty.

Despite the gaggle of staff members required to open and close the Senate, the pro forma sessions don’t appear to be costing very much. According the Secretary of the Senate and the Sergeant-at-Arms, the employees staffing the mock sessions are on salary, so there is no additional cost of having them man the chamber for a few minutes.

Likewise, the Government Printing Office already has crews working, so the additional cost of a brief Senate session is only in the pages of Congressional Record printed to memorialize the event. A GPO spokesman said that by year’s end, the printers had added 24 extra pages for the pro forma sessions, at a cost of about $14,000, to the regular “Interim Congressional Record” that would have been printed anyway.

But beyond the procedural headaches of holding the pro forma sessions every few days, Republicans and Democrats alike say they are feeling the bite of its unintended consequences.

As one Republican Senator, speaking on the condition of anonymity, said: “It does seem in a lot of ways to be a gaming of the system. It seems that is a manipulation of the way things around here normally work and the way this place tends to function.”

Front and center is the question of whether Bush’s pocket veto of the Defense Department appropriations bill is valid even though Congress remains in session.

A pocket veto is typically a privilege reserved for the president when the Congress as a whole is in recess. In this case, however, the White House maintains it can still use the veto power — even if the Senate is in session — so long as it returns the bill to the House where it originated.

Sen. Patrick Leahy (D-Vt.) issued a celebratory release on Friday announcing that his Court Security Improvement Act had become law without the president’s signature, which is the outcome of a bill that is not signed after 10 days when Congress is in session. There is no indication that Bush intended to veto that bill.

One White House official said the showdown over the defense bill veto underscores the larger problem stemming from Reid’s seemingly regular use of the pro forma sessions. This official called the move “an extreme act.”

“It doesn’t bode well for getting much done next year,” the source said.

Congressional scholar Thomas Mann, a senior fellow at the Brookings Institution, said the pro forma sessions are “an indicator of the mutual contempt with which President Bush and the Democratic Congress hold one another” and the “utter lack of trust” that has come to mark relations between the White House and Congress.

Mann noted that there are other indicators of a government so bitterly divided that normal functions are becoming impossible. For example, Mann said that by his count, there were 78 cloture petitions filed in the Senate in 2007, more than in any previous two-year period. “We are talking arms race here,” he said.