As Donald Trump takes a wrecking ball to what is left of our political norms, we need to stop thinking about guardrails of democracy and start thinking about barricades and trenches. No advantage is too small to defend, no weakness too trivial to strengthen.
We can start with FBI background checks for nominees that require confirmation by the Senate. Having relevant information about a nominee before voting to confirm is such an elementary piece of the Senate’s constitutional duty to advise and consent that the necessity for background checks should go without saying. It seems absurd to have to specify that the “consent” in “advice and consent” should be “informed consent.”
And yet, the need for FBI background checks is under attack. Trump’s transition team has raised the idea of either providing the Senate no background checks at all or providing background checks conducted by an independent private investigator.
On Tuesday, after a lengthy delay, the president-elect finally signed a memorandum of understanding with the Justice Department that will allow the Trump transition team to send names to the FBI for background checks. While some commentators are assuming this means Trump has given up on the idea of pushing the Senate to confirm unvetted nominees, I wouldn’t be so sure.
The real motivation for signing the memorandum seems to be that, under current law, the Trump transition team cannot put “landing teams” — in this case, Trump staffers charged with organizing the transfer of power — into federal agencies unless they have been vetted. On top of that, none of these landing teams can get security clearances without background checks, an absolute necessity if you are posted to someplace like the Department of Defense. In short, Trump has yet to formally commit himself to having all of his nominees vetted, so unvetted nominees are still a very real possibility.
What if Trump does follow through on his original plan? The Senate could of course simply refuse to confirm any nominees that did not have completed FBI background checks, but that would require Republican senators to repeatedly and publicly defy Donald Trump — and we all know that’s not likely to happen.
It also isn’t necessary. It’s much easier, and more foolproof, to simply change the Senate rules (specifically Rule 31.1) to prevent the Senate from considering a nomination until a full FBI background check has been completed and delivered to the Senate for consideration.
This has lots of advantages. First, one vote solves the problem once and for all. Second, it doesn’t require anyone to vote against any of Trump’s nominees. Not even Trump can get you primaried because you voted yes on an obscure rule amendment, especially if other Republican senators voted the same way.
It’s also relatively easy to get done. Since all Democrats would presumably vote in favor, passing this rule change would only take two Republican votes in addition to Lisa Murkowski and Susan Collins, who are already insisting that Trump nominees be properly vetted.
These are political advantages, but there are practical advantages, too. Proper background checks are necessary for the Senate to do its job. Some of the current nominees may have information in their backgrounds that might induce even Republicans to vote against them.
Tulsi Gabbard, for example, picked to be the next director of national intelligence, has a disturbing pattern of siding with anti-American dictators and promoting Kremlin-sponsored conspiracy theories. She was even said to be briefly placed on the no-fly list. The Senate needs to know everything there is to know about all this before confirming her as one of the key people in the government tasked with protecting America from foreign enemies.
Even if Trump were to promise to submit all his nominees to FBI background checks, that’s no reason not to change the Senate rules to require them.
First, there’s no reason to believe Trump will never change his mind. Second, a hard-wired requirement that nominees be vetted by the FBI will also go a long way toward discouraging dubious nominees in the first place. Knowing that disqualifying information is bound to come out will push Trump to give more thought to these appointments so they don’t turn into embarrassing train wrecks like the Gaetz nomination. In contrast, letting Trump get away with forcing the Senate to confirm unvetted nominees will open the floodgates. Finally, if Trump’s nominees are all going to be vetted anyway, making it mandatory is even less controversial.
Philosophically, there’s also something to be said for having the Senate take an institutional position on properly vetting nominees. The Senate’s constitutional duties do not depend on the political exigencies of the moment. It’s the Senate’s job to provide advice and consent even when a majority of senators are terrified of upsetting the president. In fact, there is no better time for the Senate to act as an institution.
Would this rule change be constitutional? Can the Senate demand that the president provide an FBI background check before acting on a nomination? Almost certainly yes. Although the Constitution gives the president the power to nominate anyone he likes, that doesn’t mean his nominee is entitled to a vote. The Senate is free to sit on a nomination for any reason or no reason — just ask former Supreme Court nominee Merrick Garland.
A preemptive rule-change to protect the Senate’s constitutional authority to advise and consent seems like nothing but a rearguard action in the face of MAGA attacks on democratic norms. But every victory is important. When it comes to defending our democracy, we can no longer afford to take anything for granted.
Chris Truax is an appellate attorney who served as Southern California chair for John McCain’s primary campaign in 2008.
