How the Senate Foils Obama Even When It's in Recess

Pro forma sessions keep the president from slipping in a surprise appointment while the senators are out of town.

With the Senate on spring break for two weeks, the north side of the Capitol felt pleasantly drowsy Monday morning. A smattering of staffers and journalists wandered the echoing hallways, along with the occasional tour group. Capitol police officers looked a little more relaxed than usual. On the Senate floor, all 100 mahogany desks stood vacant. The visitors’ galleries had only two observers, a gray-haired, pink-faced couple who looked to be dozing off in the stillness. Most senators had long since fled the building, having far better places to spend their down time.

But not everyone was out enjoying the recess. As 10 a.m. neared, the parliamentarian, two clerks, and a couple of other Senate officers took their places at the front of the empty chamber.  “Who’s doing this thing?” one asked. “Cornyn,” another answered. Then everyone sat around chatting, as a few more tourists trickled into the upper decks. Just before the hour, Senator John Cornyn of Texas sauntered in. Charcoal suit sharp, white hair gleaming, the Republican whip greeted the assembled few as he made his way to the presiding officer’s chair. At 10 a.m. on the dot, he gaveled the empty room to order, and, per the short script someone had thoughtfully left him, directed the legislative clerk to read “a communication to the Senate” from Senate president pro tempore Orrin Hatch. The lanky, bespectacled clerk rose and delivered a one-sentence order appointing Cornyn chairman for the day. And with that, Cornyn declared the body adjourned until 11 a.m. Thursday, gave the gavel a closing bang, and made for the door.

All told, Monday’s session lasted a whopping 35 seconds. No business was conducted, and no member besides Cornyn bothered showing up. It was, by and large, a scorching waste of time for everyone who had to be on hand to make it happen. Except that, if this tiny pro forma session had not taken place (nor the three more upcoming one like it scheduled for the break), the Senate would be in recess for more than 10 days—which, as any legislator can tell you, is a no-no. A recess of that length opens the door to recess appointments by the president. And with Senate Republicans currently refusing even to consider President Obama’s nominee to the Supreme Court, a recess appointment is something Majority Leader Mitch McConnell simply will not risk. No matter whose vacation it screws up.

Not that it requires a Supreme Court standoff to prompt “gavel-in, gavel-out” sessions. Partisan relations being what they are, the practice is pretty much standard nowadays during breaks of more than a few days. And although this Republican majority has shown a special fondness for bogging down nominations, McConnell and Co. cannot take the blame for this procedural obstruction. That distinction goes to Democratic Leader Harry Reid, who pioneered the practice during the waning years of George W. Bush’s presidency. (Reid’s office declined to comment on whether they regret having popped the cork on this particular genie.)

The whole pro forma process has a makeshift, vaguely sketchy vibe to it. Whenever a recess looms on the calendar, the majority party’s leadership asks a few members to be on hand to oversee enough quickie sessions to occur every three days. The leader’s office refuses to disclose ahead of time which members have been tapped, although there are a few rough guidelines that tend to be followed. Geography matters: Lawmakers from Virginia, Maryland, and Delaware often pull duty for proximity’s sake. (Republicans, inconveniently, do not hold a Senate seat in any of those states.) Seniority counts too, with members lower down the food chain frequently called to serve. At other times, it simply depends on which members had already planned on hanging around town during the break and so don’t mind schlepping up to the Capitol to bang a gavel for an empty room. Members up for reelection are given a pass so they can spend the recess campaigning. Most every else is fair game. No one seems eager to talk about the practice.

Going to such lengths to keep the chamber technically in session may strike some observers as overly vigilant—paranoid even. But this underestimates how frustrated a president can get after months of watching the opposition stiff-arm his nominees. In January 2012, in fact, Obama got so fed up with Republicans’ blocking his picks for the National Labor Relations Board that, toward the end of the Senate’s winter break, he made three recess appointments to the board even as the Senate was scrupulously holding pro forma sessions. (At the time, Democrats controlled the Senate; however, the Constitution enables the House to force the Senate into a pro forma session by calling its own pro forma session, meaning that a president’s recess appointments can be stopped if either chamber is held by the opposing team.) The White House’s argument was that everyone knew that such sessions were a farce, so they didn’t really count. Republicans, unsurprisingly, disagreed. So did the Supreme Court, which, in June 2014, dealt a 9-0 smackdown to the president’s cause. In its opinion, the Court indicated that, for a recess appointment to be permissible, a Senate adjournment must last at least 10 days. But McConnell likes to play it safe, and so his team will continue its three-day blocking ritual through the end of this administration.

Not that a new president, or even a new majority leader will help. Regardless of how things shake out in November, odds are the pro forma gimmickry will roll on unabated. As the Democratic strategist Jim Manley, a top Reid aide back when the Democrats were busy gaveling in and out to thwart ‘W,’ put it: “It’s just how it has to be these days.”