Vis Lupi Est Grex

Is Our Senators Learning: First learning opportunity--Agendas, Deadlines, and Appointments

Being elected to ASUN office is something like being handed a scalpel and told to perform emergency surgery. Stuff must be done quickly and done reasonably well or the patient will be injured or worse. The Speaker has it 10 times worse, easily. Little more than one day after being elected as Speaker, she must draft an agenda for the next meeting, make sure it complies with the Nevada Open Meeting Law, Senate rules, and ASUN law, and be sure it is posted before Friday at 9 a.m., all with hardly any support or guidance. Mistakes are bound to be made, and that's okay. But mistakes are only okay when we learn from them, grow, and don't repeat them.

That is the state of affairs Gracie Geremia was thrown into shortly before 7 p.m. Wednesday when she was elected to be the Senate's leader. It's hard work and you don't really realize how hard it is until you have to do it. As a sign of her dedication to her new job, she was in the office past 11 p.m. last night, as the ASUN website entry for the next Senate meeting demonstrates.

At first glance, the Senate agenda for April 22 looks pretty good. But when you dig a little bit deeper, some opportunities for growth are apparent. Now, please stick with us through the entirety of these posts. These things are complicated and require deliberate exposition. I know it's frustrating, but if you stick with us, you might learn something and become better Senators because of it.

Senate Rule XX and ASUN Public Law 75-37 govern the process of handing presidential appointments to office. (We cite to the 75th Session's rules because the 77th Session's rules are not published yet, but the rule is the same. There is also some doubt about whether the Senate actually adopted rules at its meeting on Wednesday--a problem of form and specificity--but we'll withhold commenting further until we've gathered the documentary evidence to be sure.)

ASUN Pub. L. 75-37 requires that an appointing authority, that's President Reilly for all of the nominations submitted Wednesday, must submit nominations in writing in a specific manner. It must follow a specific form, be transmitted to the Secretary, and sent in a sealed envelope. Our guess is the form was not followed. But that's a fault of the President, not of the Senate.

Senate Rule XX states

(a) (1) The appointing authority shall file written notice with the Secretary of the intention to present an appointee to the Senate no later than 9 a.m. on the Wednesday prior to the Wednesday for which the meeting is scheduled.
(2) The Speaker shall place the appointee, with name and position of appointment, on the agenda for referral to the appropriate committee at the aforementioned Wednesday meeting.

Let's break down the rule and tie it together with the ASUN law. We'll use a specific example. The Committee on Oversight, which has jurisdiction over appointments to office, is scheduled to hold a meeting on April 22 to consider several presidential appointments (agenda--.doc). One of the items on the agenda is the consideration of Patrick Delaplain to be Director of Clubs and Organizations. Section 202(a) of the Executive Branch Act of 2008 (ASUN Pub. L. 75-7) creates that office.

Problem: nominations should not yet appear on the Oversight Committee's agenda. Remember that Senate rule? It says that "the appointing authority [President Reilly] shall file written notice with the Secretary of the intention to present an appointee to the Senate [in the form prescribed by ASUN Pub. L. 75-37] no later than 9 a.m. on the Wednesday prior to the Wednesday for which the meeting is scheduled."

The rule goes on to say "the Speaker shall place the appointee, with name and position of appointment, on the agenda for referral to the appropriate committee at the aforementioned Wednesday meeting." The meeting referred to above can only be the Senate because only the Senate can refer things to committee.

So, the rule states that nominations transmitted by the President must appear on the Senate agenda, listing the person and office of the appointment, so that it can be referred to the Oversight Committee. The flaw with the Senate and Oversight agendas is that it appears the the proper order was skipped.

The process says that the nomination is received by the Secretary and it gets placed on the next possible Senate agenda for reading and referral to committee. So, in the proper order:

1. President submits to Senate Secretary nomination: "I nominate Patrick Delaplain to be Director of Clubs and Organizations, vice Jason Entsminger, term expiring."
2. The Secretary receives the nomination.
3. The Speaker places the nomination on the next Senate agenda if it was submitted before 9 a.m.; otherwise another week must elapse.
4. The item is on the agenda. During the meeting, the nomination is read, and it is referred to the Oversight Committee.
5. Once it has been formally referred, then the item can appear on the Oversight agenda.

Following that example, the time line as it should work for this Senate is as follows:

• Nomination submitted on April 15, after the Senate was organized--that was after 7 p.m. on that day.
• Secretary receives nomination same day.
• Speaker schedules nomination to be read for the April 29 Senate meeting because it was not submitted before 9 a.m. on April 15.
• Nomination gets read and referred to Oversight on April 29.
• After the formal nomination is referred to the committee, only then may it be scheduled for consideration in committee and placed on the committee agenda.

That is how it works.

Now, a couple questions the process should raise: Why cannot the President submit nominations by one week prior to the first Senate meeting so they can be read and referred the night he takes office? Why can't the deadline be ignored?

The Deadline and Its Implications
Rule XX(a) of the Senate Rules sets a deadline for nominations to be received in order to be read at the next Senate meeting. So, why can't the nominations be submitted before the first Senate meeting of a Session? There are several reasons why.

First, the 77th Session did not exist until it convened and was organized on April 15. In order to be organized, the Senate needed to elect a Speaker and inform the President that a quorum was assembled, they had elected officers, and were ready to receive any communication he may be pleased to make (See Item 6(a) on the April 15 Senate agenda--.doc). Constitutionally, the Senate cannot proceed to business unless it has organized. Also, the President needs to be given formal notice that the Senate has convened so he knows he can send them business. I know it seems strange because everybody knew what was going to happen and what needed to happen, but this is a legal process, and it must play out in a very particular order in a very particular way.

Second, the President did not take office until 6 p.m. on April 15 and did not qualify to enter on his office until he was sworn in (ASUN Const., Art. III, sec. 1(f)). Thus, he cannot submit nominations until the executive power to make nominations has been conferred on to him by virtue of entering office by taking the oath. Thus, the soonest he can transmit nominations is April 15, 2009, right after he's been sworn in. The fact that it was an incumbent president being reelected is immaterial because the first point set out in the paragraph above prevents him from sending the nominations to the right Senate. (Remember, the 76th Session ended on April 8 and the 77th Session had not yet been formed.)

Why the Deadline Matters
The deadline is certainly inconvenient when viewed from the perspective that the Senate should move with incredible speed in considering the President's nominations to office. But that's not what the rule is designed to do. It is designed to slow the process down. "Why?" you may ask. Several reasons:

• to prevent quick, rash decisions;
• to allow the Oversight Committee to properly vet nominees;
  
• to allow Senators enough time to gather outside information and perspective to weigh the merits of the nominations;
• to allow members of the Association at large to weigh in and persuade their representatives to vote to conform or not to confirm; and
  
• to slow things down, etc.

When the rule requires a full week to lapse before the nomination can even be read for the first time in the Senate, it puts people on notice to gear up for the nomination process. When another four days must pass for the item to appear on the Oversight Committee agenda, it allows the committee members to begin drafting questions for the nominee. All of this time allows everybody time to think about the nominee instead of just jumping before preparing to jump.

Besides, there really is no rush to confirm nominations. In most of the high executive offices, ASUN Law provides that the terms of office do not end until "Dead Day" in May. Further, even if a successor has not been confirmed and sworn into office by then, the person currently holding the office, in may cases, stays in office until a successor has been appointed and qualifies (ASUN Pub. L. 75-50).

Pressure to act quickly is unwarranted
Put simply, the President wants things to be considered quickly because quick decisions will benefit him (this applies to any president, not only Reilly). Instead, if the Senate has time to really think about whether a person is qualified for office, that could lead to undesirable results for the President.

The Senators will feel compelled to act. The President will pressure them to act quickly. The fact of the matter is the purpose of the Senate is to put a huge damper on moving quickly. The Senate is a deliberative body. Deliberation takes time. The Senate is designed to move slowly on purpose. The President can act quickly, and that makes sense since he is in the branch that executes policy. The legislative branch, however, creates policy, and policy needs to be fully considered before actions are taken.

Yes, the rules can be inconvenient, but only depending on your perspective. Senators, you are elected to be a check on the President. You get to consider and determine the wisdom of the President's acts on behalf of your constituents. Nobody else gets to do it in the same way you do.

Learning the rules also requires thinking about what things would be like if the rule did not exist, or was not followed. Imagine if the Senate was allowed to make a decision on the appointments as soon as they were submitted. Some of the Senators might feel compelled to act because they were being asked for a decision that night. But do you think that would have led to a good result? Hardly hours into their offices, could they really have made a reasonable decision on nominations without taking time to think about it? Important decisions require time to fully consider.

The learning opportunity
The error on the agendas has already been made. The beauty is the error can be contained and corrected in the future. This will take the Speaker acknowledging the error herself and holding off on improper consideration or it will take a Senator to point out the error and object to considering an item in a manner contrary to the rules. The rules are not self-enforcing. It takes a senator to raise an objection, call out an activity as being contrary to the rules, and demand that it be enforced.

A nitpicky, but important, point
The language used by the Senate must be specific, sometimes to the point of absurdity. One such example is on the Agendas posted. The reasons specificity to the point of anal-retentiveness is required is so matters are very clear. Again, this is a legal process ASUN exists in, and legal processes require precise language. The agendas drafted by Speaker Geremia all have one common error: it's not the "IGT Knowledge Center" but rather the "Mathewson-IGT Knowledge Center." Big deal? Probably not, but it matters.