A little history may help us see the direction the confirmation process will take for Michael Astrue, President Bush's nominee to become Commissioner of Social Security.
The fee agreement process, the most common way in which attorneys receive fees for representing Social Security claimants, was passed by Congress in 1990. The maximum fee was capped at $4,000 at that time. The law allows, but does not require, the Commissioner of Social Security to adjust the cap for inflation since January 1, 1991. The cap has been adjusted only one time to $5,300, shortly after Jo Anne Barnhart was confirmed as Commissioner of Social Security. If the cap were adjusted now for inflation, it would be $6,059.60, through August, the last month for which inflation figures are available, according to
InflationData.com.
What happened to persuade Jo Anne Barnhart to adjust the fee cap at the beginning of her term in office, but not again, despite 15% inflation since? Could it have had something to do with her confirmation as Commissioner? The matter did not come up during Barnhart's confirmation hearing. However, the Senate confirmation process is more than just the public hearing. There are also private meetings between a nominee and members of the Senate committee having jurisdiction over the nomination. A nominee to an executive branch position may be asked to make commitments either during the public hearing or during the private interviews. Members of the public and interest groups may ask Senators to request that a nominee make commitments about what they will do if confirmed. Did Barnhart's increase in the attorney fee cap come because of a private commitment she made during the confirmation process? Probably.
Michael Astrue, President Bush's nominee for Commissioner of Social Security, is almost certain to be asked to commit to an adjustment in the fee cap. Indeed, Astrue may be asked to commit to making annual adjustments in the fee cap. But attorney fees will only be a small part of what will be asked of Astrue. Regardless of who controls the Senate after the November election, Michael Astrue has little chance of being confirmed unless he makes important commitments to Democratic senators. Democrats have every reason to block a Republican nominee whose term in office will continue for four years after the current president leaves office, especially when that person is being nominated to head an agency as beloved by Democrats as the Social Security Administration and when he is nominated by a president as despised and mistrusted by Democratic senators as President Bush.
The threat of a filibuster can prevent Astrue from being confirmed, even if Democrats fail to gain a majority in the Senate. Democrats can easily find political cover for a filibuster. During the confirmation hearing they can demand that Astrue answer questions about his views of President Bush's privatization plan. Astrue probably supports privatization, but even if he opposes it, he is unlikely to bite the hand that nominated him by openly criticizing the President's plan. Democrats can threaten to filibuster Astrue because of his views on privatization. Few Republican senators would want to force that issue and they would need 60 votes to break a filibuster if they did. Either Astrue makes the promises that Democratic senators want him to make or he cannot be confirmed.
A recess appointment for Astrue is still possible, if Republicans control the Senate after the election. (A recess appointment is unlikely if the Democrats control the Senate after the election, since they will probably arrange to keep the Senate technically in continuous session to prevent recess appointments. Michael Astrue may not be that important, but
John Bolton is.) However, a recess appointment only lasts until the end of the Congress, which would only keep Astrue in office until January 2009. A recess appointee might also have a more difficult time dealing with Congress. If the House Social Security Subcommittee is controlled by Democrats after the election, as now seems likely, Astrue's life as a recess appointee could be difficult.
Michael Astrue has personal reasons to make whatever promises are necessary to get the job. He was proposed previously by President Bush for Commissioner of the Food and Drug Administration, but never formally nominated because of Senate opposition. Does he want to fail again in an effort to obtain high government office? A look at
Astrue's resume shows why he might be highly motivated to do what is needed to get confirmed. He had a spectacularly successful stint in government service during the Reagan and George H. W. Bush administrations. His career since, while not unsuccessful, has not been all that one might expect from someone who showed as much early promise as Michael Astrue. Also, he is jut about unemployed at the moment.
So what might sort of commitments might be asked of Astrue? Let me list a few that Democratic senators on the Finance Committee may request:
- Keep the Social Security Administration out of politics, including any renewed effort at privatization or other "reform" of Social Security. Senator Max Baucus, the senior Democrat on the Senate Finance Committee and the likely chairman of the Committee if Democrats gain control of the Senate, has already signaled his intention of insisting upon this, saying that the public does not support privatization and that Astrue "should commit to maintaining the critical role that the Social Security program currently plays in providing income security for retirees, disabled workers, survivors, and their families." Baucus Comments On Social Security Nominee. If Democrats control either house of Congress after November, this should be an easy one to agree to, since even President Bush will have to understand that there will be no hope of enacting his plan if Democrats control either house of Congress.
- Officially withdraw the Notice of Proposed Rulemaking that would increase the age requirements of the grid regulations. This one may not be difficult for Astrue to commit to. Apparently, this proposal did not arise out of policy considerations. It was merely a means of saving money. It certainly was not Astrue's idea.
- Do something NOW about the backlog of pending requests for hearings at Social Security. What specifically can Senators ask for? We know that the senior attorney program, under which certain agency attorneys are authorized to approve certain claims of those awaiting a hearing, under certain circumstances, worked in the past to reduce a backlog. We also know that "re-recon" worked. "Re-recon" is a process for diverting new requests for hearing to what amounts to a new reconsideration review, through which some will be approved. Pledges of even more dramatic action, such as the appointment of temporary administrative law judges, as was done when there were bad backlogs after the introduction of the SSI program, could be demanded. Again, Senator Baucus has signaled that he wants a commitment to some action on the backlogs, saying that Astrue "will also need a plan to speed and improve service to the public, particularly those applying for disability benefits." The Office of Management and Budget (OMB) might not like this one, but many Republican senators would support doing something on an urgent basis.
- Speak publicly about Social Security's budget problems. Even though she must have done so privately, Jo Anne Barnhart never criticized the Social Security budget proposed by the President and barely raised a peep about the lower budgets that were passed by Congress. Even with her agency facing staff furloughs next year she has been unable to bring herself to issue a press release on Social Security's budget problems. Democratic senators may demand that the next Commissioner release publically his own budget proposal showing what he feels is needed to provide adequate public service. OMB would certainly oppose this, since it would mean that the Social Security Administration would become a truly independent agency, but even some Republican senators might like to see a truly independent Social Security Commissioner.
In the end, it should not matter to Democratic senators that Astrue is a registered Republican or that he privately believes in privatization of Social Security or that he has been nominated by a president they despise. It is what Astrue would do in office that is important. If Astrue will promise to do those things that Democratic senators want him to do as Commissioner, there is every reason to confirm him.
