Senate Democrats are livid over what they view as President Bush's illegal maneuver to bypass the Senate confirmation process and appoint controversial nominee Sam Fox as ambassador to Belgium while Congress is away on recess.
Democrats find the recess appointment -- a common maneuver by presidents whose nominees stand little chance of getting through the standard confirmation process -- particularly egregious since Fox's nomination wasn't even pending. The White House withdrew the nomination last week, anticipating it didn't have enough votes for approval.
When it comes to Fox, Democrats see red. A wealthy businessman and mega GOP donor, Fox gave $50,000 to the Swift Boat Veterans for Truth campaign that smeared Sen. John Kerry's (D-Mass.) Vietnam record and helped doom his 2004 presidential quest. Kerry led the fight to quash Fox's nomination, though he never got the chance to declare victory after Bush withdrew the nomination.
To fight the Fox appointment, Democrats are questioning the Bush administration's plan to have Fox serve in a voluntary capacity -- receiving no pay for his duties as ambassador. This is an important legal technicality, as federal law prohibits "payment of services" for certain recess appointments. However, if the recess appointee in question agrees that he or she will take an unpaid position and not sue the government at a later date for compensation, then the appointment can go forward, at least as the White House sees it.
So as long as Fox -- a multi-millionaire -- agreed not to sue the Bush administration later for not paying him, the White House would be comfortable with giving him an unpaid, "voluntary service" recess appointment as ambassador to Belgium.
But here's the rub that makes Democrats view Bush's recess appointment of Fox as a major-league no-no: Federal law prohibits "voluntary service" in cases where the position in question has a fixed rate of pay, as an ambassadorship does. That's how the Government Accountability Office, an arm of the Democratic-controlled Congress, interprets the law.
In other words, according to senior Democratic Senate aides, the salary is a "statutory entitlement" and cannot be waived. While Fox would not be receiving a salary, he would still be entitled to live in government-owned housing and receive other benefits due any ambassador.
"How to reconcile this clear conflict between the pay restriction, which says that Fox cannot be paid, with the voluntary services provision, which says that the State Department cannot accept voluntary services from Fox?" queried one senior Democratic aide who asked for anonymity to speak frankly about the matter.
"That is the $64,000 question," he added.
The Senate Foreign Relations Committee was less than an hour from sitting down to vote on Fox's nomination when the White House pulled it last week. Sen. Joe Biden (D-Del.), chairman of the Senate Foreign Relations Committee, was unavailable for comment. He was traveling home this evening from Iowa, where he was campaigning for president.
Kerry, however, a member of the Foreign Relations Committee, had this to say: "It's sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate."
"This nomination was withdrawn because the administration realized it would lose in the Foreign Relations Committee. Unfortunately, when this White House can't win the game, they just change the rules, and America loses," Kerry said.
Sen. Chris Dodd (D-Conn.), another member of the Foreign Relations Committee -- one of three '08 presidential contenders on the panel -- made it clear the White House declared war through its recess appointment.
"It is outrageous that the president has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the president formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week," Dodd said. "I seriously question the legality of the President's use of the recess appointment authority in this instance."
White House spokeswoman Emily Lawrimore described Fox as a "respected business leader who has tremendous international experience and passion for public service. The president made this decision based on Mr. Fox's impressive leadership credentials."
The recess appointment is scheduled to last through the end of Bush's term in office. Unless, of course, Senate Democrats find a way to deep six it.
By Mary Ann Akers | April 4, 2007
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