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Obama’s NLRB Nominees Yet to Undergo IRS, FBI, OGE Background Checks

Legally required background checks usually take months

AP
• July 17, 2013 10:05 am

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The Obama administration has yet to conduct legally required background checks on two new labor nominees that must be submitted to the Senate labor committee by Thursday, according to sources familiar with the nominations.

Executive appointments to the National Labor Relations Board are required to pass background checks administered by the FBI, IRS, and the Office of Government Ethics (OGE).

Senate sources tell the Washington Free Beacon that neither Nancy Schiffer, a former AFL-CIO attorney, nor Kent Hirozawa, chief counsel to Democratic NLRB chairman Mark Gaston Pearce, have undergone the extensive vetting process that examines criminal, tax, and conflict of interest records.

"To our knowledge … they haven't yet been vetted," one top Senate GOP aide said. "Frankly, this all came about faster than we expected."

The OGE database on current nominees has no record of Schiffer or Hirozawa despite the fact that the Ethics in Government Act requires the White House "to give an ethics report to the appropriate committee of jurisdiction for each nomination," according to the Congressional Research Service.

The OGE said they could not comment on current nominations for privacy reasons.

An IRS spokesman would not say whether or not the agency had performed the background checks, citing privacy laws. A FBI official said he was unsure if the agency had begun vetting the pair and could not confirm by press time.

Labor committee rules require the administration to submit the completed background checks at least five days before a confirmation hearing, according to committee staffers. This leaves the administration just one day to vet Schiffer and Hirozawa and submit a report for the scheduled July 23 hearing.

The nominees have cleared at least one background check: The AFL-CIO handpicked Schiffer and Hirozawa to join the NLRB after the White House withdrew the nominations of controversial board members Sharon Block and Richard Griffin as part of a deal with Senate Republicans to avoid the nuclear option.

The administration risks repeating the same mistakes that brought down Block and Griffin. The White House submitted their background checks to the labor committee one day before the Senate adjourned in 2011. Obama then bypassed the confirmation process and recess-appointed Block and Griffin while the Senate was still in pro forma session in January 2012.

A federal appeals court declared the appointments unconstitutional in January 2013, fueling GOP opposition to the pair.

The committee rules could once again sabotage White House plans to preserve the board’s Democratic majority by rushing through the confirmation process.

The NLRB requires at least three voting members to issue rulings and is scheduled to fall below that threshold in August. Senate Democrats face a harsh dilemma as the deadline approaches.

The Senate Labor Committee unanimously approved two Republican NLRB nominees in May. Four Republicans voted against Pierce, who also advanced. Democrats and labor groups repeated throughout the nuclear option campaign that a functionless NLRB threatened workers "because the agency is often the only place that workers can go for help when their rights are violated," as Sen. Tom Harkin (D., Iowa) said on Tuesday.

Any delay in the confirmation process could force the Democrats to appoint a Republican majority or abandon a functioning board.

"Democrats could put those three people before Senate and the Senate would approve them," one Senate aide told the Washington Free Beacon. "If their critique is that we need a functioning board to protect workers rights, but they refuse to move ahead with these three, then by their own definition they’re leaving workers unprotected for political reasons."

Senate Majority Leader Harry Reid said on Tuesday that the Senate would vote to approve all five nominees as a package before August. The only way that he will meet that deadline is if ranking labor committee Republican Sen. Lamar Alexander (R., Tenn.) agrees to waive the rule requiring background checks. GOP Senate aides are holding out hope that the White House will meet the deadline.

"The deal is they get a full senate vote before August recess, but it's unclear if the rule will need to be waived yet," one aide said.

Past NLRB appointees confirmed that the exhaustive background checks take time.

Jerry Hunter, who served as the board’s general counsel from 1989 to 1993, said that the White House spent two months vetting him before he reached committee. He submitted multiple disclosure forms, the IRS scoured his tax returns, and FBI officials revisited his past residences and workplaces.

"Those two individuals, under regular procedure, would have to go through FBI clearance," Hunter said. "[Obama] could put a rush on it, but this isn’t something that’s done overnight."

Hunter added that he was one of the more fortunate appointees. Background checks could last up to six months even in the pre-internet days, especially for former union officials who could encounter conflicts of interest at the board.

The process has only gotten longer, according to CRS.

"The scrutiny that has been applied to nominees has increased over time," a 2012 report stated. "Before the president even sends a nomination to the Senate, the selection and vetting of that nominee may be time consuming."

Hunter said that the Senate agreement would not give federal agencies enough time to properly vet Schiffer and Hirozawa.

"I am shocked that the Senate apparently is going to move forward and schedule a confirmation vote without a full background check of the proposed nominees," Hunter said.

Senate GOP operatives insist that the nuclear option doesn’t guarantee confirmation for Schiffer and Hirozawa. The Republicans promised only a fair hearing of the nominees, according to a senior GOP aide.

"They'd be required to go through the full process [with] full committee hearings, checks," and other standard measures, the aide said.

The White House did not return requests for comment.

Updated Wednesday July 17, 4:24 p.m.: This post has been updated to reflect the vote totals for the committee confirmation hearing.