How Obama Can Help Rescue the Postal Service Right Now
David Dayen
The U.S. Postal Service is going out of business, partly because of mismanagement. As a functioning business, its board of directors would have been replaced years ago.
The Postal Service has been reeling from threats to its financial stability. The Board of Governors sets budgets, pricing and policy for the Postal Service. Despite six years of a Democratic president, Republicans have held for years the majority of the board’s occupied slots. As a result, the reaction to diminished physical mail traffic and an unworkable retirement funding mandate from Congress (the Postal Service must pre-fund its retirement benefits 75 years out, a demand placed on no other federal agency or private business) has been mostly about job and service cuts.
There is a possible solution. And it could come in 2015.
One of the few bright spots of the past two years in Congress has been the Senate’s success in presidential and judicial confirmations. After Senate Majority Leader Harry Reid (D-NV) invoked the so-called “nuclear option,” lowering the threshold for confirming nominees to a majority vote, the Senate secured one of President Obama’s enduring legacies by seating more judges on the federal bench than at any time over the past 20 years.
The president has now confirmed more judges in his first six years than Ronald Reagan, Bill Clinton or George W. Bush did. The president’s nominees for executive agencies also moved through the Senate with far more speed than in prior years.
That’s great news for the smooth functioning of government. But one agency in particular has been left behind, with its nominees stalled and its operations in danger. The president has the opportunity to remedy this with the stroke of a pen by making recess appointments to the Postal Service Board of Governors.
According to the Senate’s executive calendar, hundreds of nominees awaited confirmation at the adjournment of the Congressional session. Under the standing rules of the Senate, these nominations were returned to the president for re-nomination next year, when Republicans will control the chamber.
The lion’s share of these appointments are for members of the military or the foreign service, with a couple high-profile nominations like Attorney General candidate Loretta Lynch, and a few key jobs at the Treasury and Defense Departments. But no federal agency will suffer as much for this inability to confirm nominees as the United States Postal Service, the nation’s second-largest employer.
The Postal Service Board of Governors, effectively the board of directors for the agency, has eleven slots. Two are for the Postmaster General and deputy, and the other nine are selected by the president and confirmed by the Senate, with no more than five of the nine from the party in the White House.
When the Board of Governors’ chair, Mickey Barnett, had to leave his post on December 8 that left a whopping six vacant slots. With no incoming nominees confirmed before the Senate left town, the board is now operating without a quorum. Rather than lose the ability to function, the board created a temporary emergency committee allowing the remaining members to provide “continuity of operations.” This is the first time the USPS board has ever resorted to such a contingency, and the legal rationale could easily be challenged.
Postmaster General Patrick Donahoe, who is retiring in February (the Board of Governors already chose his replacement, key deputy Megan Brennan), has proposed the elimination of nearly one-third of its workforce by 2015, the sharpest drop-off in employment in USPS history. He has stuck to this plan despite resistance from Congress. “Innovation” for Donahoe translates into mail processing center closures, reduced hours, repeated attempts to end Saturday delivery and partial privatization through partnerships with retail outlets like Staples. Lower service standards scheduled to take place on January 5 will practically eliminate overnight mail and tee up the closures of 82 more mail processing plants.
A revitalized Board of Governors could fix this, not just by stopping the cuts, but with new ideas aimed at building the USPS rather than tearing it down. For example, the board could test the long-discussed option of postal service banking, providing an alternative for millions of families with little or no access to financial services, who currently rely on costly options like check cashing stores or payday lenders. Two nominees who failed to get confirmed this month, Victoria Kennedy (Ted’s widow) and Stephen Crawford, expressed support for postal banking in their confirmation hearing.
Beyond banking, the long-awaited Democratic majority on the Board of Governors could embark on experiments that take advantage of the Postal Services’ vast resources of physical and human capital. They could make decisions in the interest of employees, rather than just lazy cost cutting, to bring the Postal Service into the 21st century.
But to get this done, President Obama will have to dip into an 18th century Constitutional provision, the recess appointment. Article II, Section 2 gives the president “Power to fill up all vacancies that may happen during the Recess of the Senate.”
The recess appointment power drew some controversy when it was last used. In June, the Supreme Court ruled unanimously that the president made appointments to the National Labor Relations Board illegally, when Congress was still in session and holding “pro forma” sessions. However, they did not invalidate the recess appointment power entirely, as even the Court’s most conservative members reaffirmed recess appointments during breaks between Senate sessions. That’s precisely the moment we’re in today. As long as the Senate breaks are longer than 10 days in length, according to the Court, recess appointments are allowable.
Moreover, President Obama’s philosophy on recess appointments fits with the position the Postal Service Board of Governors finds itself in right now. He could theoretically make any recess appointments he wants — it’d certainly be easier to install a new ambassador to Cuba now, rather than try to get one through a Republican Senate. But the National Labor Relations Board had no quorum before Obama recess-appointed three nominees in 2012. He also placed Richard Cordray as director of the Consumer Financial Protection Bureau, because the agency could not perform key operations without a director in place.
The Postal Service board suffers from the same problems today: no quorum, and uncertainty about exercising its agency powers. That makes it a prime candidate for recess appointments. Especially when the nominees have been waiting so long. Stephen Crawford was first nominated in June 2012; David Bennett has been lingering since April 2013.
The Postal Service is in crisis. Its rules are onerous and impossible to manage, and it faces severe threats from within. Ultimately the agency needs Congressional action to relieve it of its funding burdens and grant more authority to innovate. But the Board of Governors could start by using existing authority to turn around the entire direction of the Postal Service. The president can lead the way by employing the document Republicans constantly accuse him of ignoring — the Constitution.
