I’ve seen several stories recently about the Election Transparency Act, a New Jersey bill that would, among other things, make changes to the Election Law Enforcement Commission (ELEC). The bill has been the subject of a number of editorials, such as this one and this one, primarily about the reduction of ELEC’s window to investigate matters from ten years to two and the ability of the governor as a one-time matter to appoint all of the commissioners without the need for advice and consent of the Senate. Apparently, the Assembly is going to vote on the bill today.
While I certainly see big issues with the bill, this post is about the justification articulated by Senate President Nicholas Scutari for letting the governor appoint an entirely new commission((There are supposed to be four commissioners, at the moment there is one vacancy and three holdovers who continue to serve despite the expiration of their terms.)) without the need for Senate approval: “People are always criticizing (senatorial) courtesy, and what we’re doing for this one limited time is getting rid of courtesy.” For those who don’t know, New Jersey’s version of senatorial courtesy is the practice whereby the state senate will not vote on a nomination without the okay of all senators (regardless of party) who represent any part of the county in which the nominee resides. It’s a sordid practice, but one that probably will never change as long as each senator thinks that he or she may want to use it one day.
But even the staunchest opponent of senatorial courtesy cannot think that it would just be better to eliminate the Senate’s role in the appointment process altogether.((I will say that for most “purely” executive positions the governor should be able to make the appointment of his own subordinates.)) Scutari should push a Senate rule change mandating an up or down vote on appointments within a set time.
This is not to say that ELEC does not need reform. Consistent with the position I have expressed before, no administrative agency should act as both judge and prosecutor. It’s time to move adjudications that can result in fines and other penalties out of the Executive Branch.
Jay Bohn
March 30, 2023.