A hold-up of SEC nominees

You mean getting to a floor vote so that sensitive vacancies can be filled isn’t these senators’ top priority after all? Sen. Chuck Schumer and allies are holding up two presidential nominations to the Securities and Exchange Commission, those of Democrat Lisa Fairfax and Republican Hester Peirce, demanding that the nominees commit to supporting a scheme to force shareholder-held companies to disclose their political involvements, the better for adversaries to pressure them or retaliate. It flies in the face of the idea that the appropriate frame of mind for commissioners approaching the rulemaking process is to keep an open mind rather than promise to vote one way or the other [Stephen Bainbridge, Broc Romanek/Corporate Counsel, Marc Hodak] “The SEC is now down to just three members, two less than its full complement, after two left the agency late last year. If the SEC remains with only three members for a prolonged period, it could be difficult for Chairman Mary Jo White to advance her agenda in what is likely her final year at the markets regulator.” [Andrew Ackerman, WSJ] More: WSJ letters via Prof. Bainbridge; Washington Post editorial.


  • Democrats said they would vote against the nominees. Facing that, the Republican-majority committee decided not to have a vote. I am not sure that this can in any way be compared the decision not to hold a hearing on a Supreme Court nominee. Since Republicans are the majority, could they just not use their majority to send the nominees to the floor?

    Of course, the reason for voting “no” is questionable.

    • It can absolutely be compared. It all falls under the advise and consent powers that the Senate alone holds. The Senate can say no for any reason, or no reason at all. A name can be sent to the floor or it can be withdrawn if not held in abeyance.There is no duty or requirement to hold a vote. Obama, acting under his powers to send any nominee he wishes is the one obligated to convince the Senate to vote in favor.

      All that said, yes, the Republicans could force an up-or-down vote. They’ve decided they don’t want to. I don’t know the reason why. It might have something to do with that smarmy demand from Schumer.

      • I guess it is similar in that the Republicans are holding up a vote for a nominee. However, in this case, they actually had a hearing.

    • “Since Republicans are the majority, could they just not use their majority to send the nominees to the floor?”

      Technically yes, practically no. It wouldn’t ever come to a floor vote, because the Democrats would use the filibuster power. I mean, technically they could use the “nuclear option” and abolish the filibuster rules, but I doubt the Republicans would do that to pass Obama appointees.

      Appointments only need a simple majority in the Senate. If the Republicans are in the majority and support the candidates, the only way the Democrats could block them is to use procedural stuff like the filibuster to prevent the vote. And if they prevent a vote – whether by filibustering, threatening to filibuster, or using whatever other processes the Senate might have for a vote to be blocked without a majority – then yes, that’s pretty much the same as not holding a vote on a Supreme Court nomination.

      And the SEC is down to 3 out of its 5 members. It’s in much greater danger of being unable to function than the Supreme Court which is at 8 of 9.