Senate Likely to Allow Obama Recess Appointments

With a Democratic president soon taking office and a larger Democratic majority in the Senate, it's likely the use of pro forma sessions to prevent Executive Branch action will cease.

The Senate has been meeting in pro forma sessions every fourth day for the past couple years as part of a tug-of-war with President Bush.

"Pro forma" is Latin for "a formality," and in Senate parlance, "pro forma sessions" are a way the Senate can legally meet without really doing anything. No legislative business is allowed. They don't vote. They don't speechify. It's just gavel in, gavel out.

Abandoning pro forma sessions will mean the Senate can truly go away for a few days without deploying a sentry to preside for a few seconds.

Pro-forma sessions all look very official even when they are just momentary stopgaps. Take a recent day:

Senate officers -- the parliamentarian, the legislative clerk, someone from the sergeant-at-arms office -- gather around the dais. 

A batch of tourists sit ramrod straight upstairs in the public viewing gallery. Attentively, they stare down at the majesty of the Senate floor, primed for a rare opportunity to watch their government in action.

Sen. Ron Wyden, D-Ore., climbs into the presiding officer's chair. He grabs a white ivory gavel that resembles a salt and pepper shaker. Cardin taps it on the desk, bringing the Senate to order.

It's precisely 10:00:37 am.

"The clerk will please read a communication to the Senate from the president pro tempore," directs Wyden.

The legislative clerk then reads a short, but very official-sounding paragraph announcing that "Ron Wyden, a senator from the state of Oregon" will "perform the duties of the chair."

Like actors reading lines at a rehearsal, Wyden takes his cue.

"Under the previous order, the Senate stands in recess until Tuesday, December 23, 2008," says Wyden.

He taps the gavel and shoves back from the desk.

It's 10:01:04.

The Senate meeting is done -- in all of 27 seconds.

The people in the viewing galleries continue to sit stoically, not quite sure what's transpired. But shortly the doorkeepers are in the aisles, ushering them out of the chamber.

Seeing a pro forma session is kind of like going to a Major League Baseball game and watching one pitch or seeing NFL teams do one scrimmage.

During the last presidential term if the Senate had adjourned, President Bush could have potentially bypassed the Senate and appointed what Democrats believe are controversial nominees to the federal courts or a Cabinet agency without Senate approval. 

By not adjourning and continuing to meet every few days in pro forma sessions, it prevented the president from making the recess appointment, or an appointment that does not require Senate approval and is valid until the next Congress convenes.

The consistent use of pro forma sessions started when tensions between the White House and Senate Democrats heated up in the first Bush term. Senate Democrats, then in the minority, blocked some of the president's appointments during its regular sessions. 

One of the most controversial block was to the 2003 nomination of Judge Bill Pryor to the 11th Circuit Court of Appeals in Atlanta. Democrats said Pryor held extreme positions on homosexuality and abortion. So they filibustered the nomination.

In early 2004 when the Senate went out of session, Bush went around the Senate and appointed Pryor to the 11th Circuit.

When Democrats won control of the Senate two years ago, Majority Leader Harry Reid made sure the president would seek advice and consent on future nominations. And the pro forma session blossomed.

For the final round of pro forma sessions, Reid crafted a calendar and designated a single Democratic senator to shepherd the Senate through the parliamentary sprints.

Sen. Carl Levin of Michigan presided on Dec. 12. Sen. Jay Rockefeller of West Virginia gaveled in and out on Dec. 16, 23 and 28. Sen. Jeff Bingaman of New Mexico gets the final pro forma session on Jan. 2, 2009.

Reid published a similar schedule in August. Sen. Robert Byrd of West Virginia presided twice. Seeing Byrd preside over a pro forma session is kind of like watching the Rolling Stones perform at a small venue in the east Village.

Compared to some of his colleagues, Byrd seems to plod through the sessions, speaking deliberately. But some of the senators informally compete to see who can breeze through sessions the fastest. Sen. Jim Webb of Virginia set what appears to be an Olympic record for a pro forma session. Webb left his colleagues in the dust, speeding through one last year in a mere 11 seconds.

The Senate is known as the world's most-deliberative body. With the Obama administration taking office soon, it appears that the Senate will soon revert to the form that earned it that moniker.