They Work with Him, but They Work for Us

One of the longstanding unwritten rules in U.S. politics is that "the President can hire whomever he wants," that he has the right to choose "his team." The only exceptions to that rule of which I am aware are for non-policy issues such as being an alcoholic or violating some evolving category of laws or procedures. I have always disagreed with the notion that the Senate's advisory role on administrative appointments should be deferential to the point of ignoring policy concerns. While it is true that the President was elected by the people (or, in some cases, by just enough people to win the Electoral College), the Senate should still look closely at the views of the people whom the President appoints, precisely because those appointees were unknown to voters at the time of the election.

Moreover, under the current norms, policy differences are often simply hidden under a fig leaf of concern about some non-substantive violation. If we are going to have honesty in government, why not start with being honest about why we support or oppose appointees?

Even if we accept the idea that the only legitimate grounds on which to oppose a presidential appointee are procedural, however, the bar is currently set far too low. Earlier this week, the Senate confirmed the appointment of Timothy Geithner to be Treasury Secretary. While I opposed his selection on policy grounds, I suspect that he would have been acceptable to a majority of the Senate if they had voted purely based on his policy views. As we all know, however, Geithner's nomination hit a bit of a snag over some tax issues. In opposing Geithner, the ranking Republican on the Senate Finance Committee, Charles Grassley, issued a statement that read in part:

"The Treasury Secretary is in charge of the IRS, and must set a good example. During yesterday’s confirmation hearing, Mr. Geithner gave answers to committee member questions about his tax compliance problems. The nominee’s answers to the committee and during the vetting process give me pause. The explanations for irregularities have ranged from statements that he should have known, to proclamations that if only his accountants had warned him he would have done the right thing."

I agree with Sen. Grassley's sentiments. Indeed, as the TaxProf blog noted yesterday, Geithner's example has already been used as an excuse for tax non-compliance by Bernard Kerik, whose lawyers are complaining that their client is being "treated differently" than Geithner. The right-wing press and blogosphere have already used the Geithner nomination to stoke popular fears about the tax bogeyman, inflaming sentiments against the very notion of taxation. Therefore, I also opposed Geithner because he is a particularly unfortunate choice from the standpoint of popular perception (based on the very real fact that he violated the law), which is especially important in the area of taxes.

I am not, by the way, moved by the argument first reported on the popular Gawker website yesterday that Geithner's 1998 testimony to a House subcommittee proves that he is either an ignoramus, an amnesiac, or a liar. The testimony in question merely explains the unique income tax rules that apply to IMF employees who are U.S. citizens. As it happens, I was interviewed for an IMF job when I was leaving graduate school years ago. The interviewers went to great lengths to tell me that salaries there are not subject to U.S. income tax, which they rightly viewed as a recruiting inducement. Geithner's problems at the IMF related to payroll taxes, not income taxes. The procedures for paying payroll taxes when an employer does not withhold them are a very different set of issues.

Therefore, the problem with Geithner is that he failed to follow procedures that most people never have to deal with but that he should still have dealt with correctly. Again, the problem is that this type of error is fodder for demagogues. A person who would head the Treasury Department really should be held to account for his tax problems.

A much easier, but equally troubling case, is the nominee to be the second in command at the Defense Department, William Lynn. Lynn is a lobbyist for Raytheon, which means that he cannot serve in the Obama administration under its own new ethics rules. The administration reportedly issued an immediate waiver to those rules for Lynn, forcing him to divest stock and "to be under ethics review for a year," whatever that means. This simply does not pass the smell test.

One argument that we hear in favor of giving Geithner and Lynn a pass is that they are the guys whom Obama wants, and Obama thinks they are the only people who can do what he needs to have done. I even heard one pundit claim that Geithner is the only man in Washington who understands the bank bailout, so it would be foolish to reject him on the basis of some minor tax error. This is nonsense. There are plenty of qualified people who would be willing to serve in any administration. The difference between the president's first and second choices cannot be so great that we should just give the president a pass on any appointment.

The president is, after all, hiring a team to work for the citizens of the country. If we really want to live in a post-partisan world, maybe the place to begin is to have Senators evaluate appointees on the basis of higher standards rather than acting as if the only person whose opinion matters is the president (no matter how popular he may currently be). If we are going to see a change of tone in Washington, maybe one way to begin is to stop acting as if the president's people are above the law.

-- Posted by Neil H. Buchanan