Reforming the OLC

In a post a few weeks ago I noted that the reconciliation process on health care would test the practice (dating back to the 1970s) that rulings of the Senate parliamentarian are not overturned by the presiding officer (e.g., the Vice-President).  So far, on the most consequential legislation in decades, that tradition remains intact, which suggests that it is now a settled rule.

This raises the following question–if the parliamentarian’s office can consist entirely of civil servants, why can’t the same structure be used for the Office of Legal Counsel (OLC) in the Executive Branch?  For those who think that John Yoo’s work there was problematic because he just told the President what he wanted to hear, one solution would be to end the practice of having political appointees there at all.  Of course, the Attorney General or the President would retain the right to overrule opinions by the OLC civil servants, just as the Vice-President (or a Senate majority) can overrule the parliamentarian, but in time that power would probably wither away because the political costs of exercising it would be too high.

UPDATE:  Here is a paper by Brad Lipton that makes a similar argument.

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