JONATHAN COHN JULY 19, 2011
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Elizabeth Warren won’t get a chance to run the new Consumer Financial Protection Bureau, but Richard Cordray may. And perhaps that's good news.
Warren, the Harvard Law Professor and champion of consumer interests, may run for the U.S. Senate, seeking the seat Ted Kennedy once occupied and that Republican Scott Brown now does. Although a first-time candidate, she could be formidable. As for Cordray, the former Ohio attorney general, he was the first state official to sue a mortgage servicer over foreclosure fraud. "Progressives think extremely highly of Cordray," says Amy Hanauer, executive director of Policy Matters Ohio. "He's smart, strategic and excellent on the issues. He stood up for consumers in Ohio and I think he would in this role, too."
But wait – will Cordray ever get to serve? Precisely because he’d make an effective regulator, financial industry lobbyists don’t like him. And Republicans months ago threatened to block any nominee to run the consumer board, regardless of his qualifications, until Obama agrees to reforms that would weaken the agency. That’s a worrisome, even alarming development – and not simply because it could leave consumers more vulnerable to predatory financial practices.
Republican threats to block nominees to the consumer board are of a piece with their opposition to Don Berwick, Obama's first choice to run the Center for Medicare and Medicaid Services; to Peter Diamond, whom Obama tapped to sit on the Federal Reserve Board; and most recently to John Bryson, Obama's nominee to take over the Commerce Department. It's nothing short of a power grab by the Republican Party – an effort to achieve, through the confirmation process, what they could not achieve through legislation. And it seems unprecedented, at least in modern times.
True, the constitution gives the Senate the power to “advise and consent” on executive branch appointments. And from the early days of the republic through the end of the 19th Century, the Senate and president fought regularly over the precise boundaries of that power – most famously when the Reconstruction Congress passed a law forbidding then-President Andrew Johnson from removing a cabinet official without congressional permission. It was his decision to flout that law that drew impeachment and, very nearly, his removal from office.
But since that time the Senate has deferred more to the president on appointments, partly on the theory that a modern society needs a president who could staff the executive branch with like-minded officials. Although senators have frequently raised substantive and ideological objections to nominees, explicitly or implicitly, they did not engage in such wholesale, blanket opposition to appointments based (explicitly or even implicitly) on governing philosophy. As the Senate's own website confirms, the Senate voted down nominations "only in the most blatant instances of unsuitability." The obvious exception has been judicial appointments. But even those have increased dramatically in the last few years and, besides, those are lifetime appointments to an entirely separate branch of government.
What makes this ideological policing even more pernicious is the fact that it’s policing by a minority. The formal letter threatening to block consumer board appointments includes 44 Republican senators, less than a majority but enough to block nomination with filibuster. If the Senate still operated by majority rule, Berwick, Bryson, Diamond, and Warren would likely be busy running their agencies right now. Instead, they are serving as lame duck recess appiontees -- or not serving at all.
The problems of the nomination process, of course, are legendary at this point. They are not entirely new and they reflect, in part, institutional changes like an increase in the number of positions requiring Senate confirmation. But, by most measures, the problem has gotten worse in the last few years, particularly with Obama in office. And this sort of brazen refusal to confirm appointees on ideological grounds really does seem like a turning point.
Just to be sure, I consulted Thomas Mann, the political scholar at Brookings known for his encyclopedic knowledge of congressional history. Here's what he said:
In the case of the Consumer Protection Board, Senate Republicans have said they would not confirm anyone who does not agree to restructure the leadership of the agency from a single person to a multi-member body. They insist that a legitimately passed law be changed before allowing it to function with a director – a modern-day form of nullification. Same with the director of the Center for Medicare and Medicaid Services. There is nothing normal or routine about this. The Senate policing of non-cabinet appointments is sometimes more aggressive but the current practice goes well beyond that, more like pre-Civil War days than 20th century practice.
Ah, yes, nullification. The ostensible philosophy behind that idea was the need to protect rights of a permanent minority, namely the slave-holding states of the South, lest they never have a say in policy. But Republicans aren't a permanent minority in need of special constitutional protections. They're a faction trying to bully the majority. And they're getting away with it.
11 comments
Heh. You do know that Republicans will never let Obama appoint a Supreme Court justice if any of the conservative wing's members retires, right? I have known this since watching the Sotomayor fight, and Republicans merely managed to prove their ruthlessness extends to all manner of federally appointed positions for which Obama appoints a moderate liberal who has a good track record of working with conservatives. Or an uncontested expert (cf. Peter Diamond's op-ed complaint that Richard Shelby, an economic know-nothing, has more power over the US economy than people who actually know what they're talking about).
- chaitless
July 19, 2011 at 12:11am
Is anyone surprised by any of this? The modern Republican Party has been fully taken over by the most extreme libertarian ideology. Under this system of belief government institutions are intrinsically evil. It does not matter if their actions and existence are supported by democratic majorities. The majority, under this view, is an instument of tyranny and must be opposed by any means necessary. The thing that frustrates me so intensely about the Obama administration is its consistent failure to articulate these obvious truths about the nature of the Republican opposition. It seems to me that explaining Republican motives to the American people is the only effective strategy to oppose them. Polls suggest that only a minority of voters share in Republican officials' extreme beliefs, but when Obama continues to deal with Republicans as if they had any desire to deal with him in good faith, he enables them to disguise their true ends. This must stop.
- AaronW
July 19, 2011 at 12:29am
But yet, when Obama even hints at Republican intransigence, he is roundly lambasted for not being fair, or whatever. Part of blame for this disaster belongs to to the media, who continue to try and be "fair and balanced" when they'd better start standing up for the facts.
- Sophia
July 19, 2011 at 2:33am
No, the blame belongs entirely to the Democrats who: 1. Refuse to make the Republicans pay by rhetorically blasting them constantly, 2. Allow themselves to be bullied by refusing to withhold as a bargaining chip anything that Republicans want, 3. Refuse to play tit-for-tat. Do you think LBJ would have stood for this as Senate Majority Leader? The Republicans would have been begging for mercy as he stripped their states of everything of value in the budget.
- roidubouloi
July 19, 2011 at 7:50am
Many of today's Republicans are not small d democrats. They are bullies. The turning point was in 2000 when the bullies stopped the vote count in south Florida and were then rewarded for their efforts by the US Supreme Court. The signal to them was loud and clear. Indeed, their bullying in south Florida is a source of pride among many Republicans. Make no mistake, to many of today's Republicans there is only one legitimate side to any issue and only one legitimate outcome to any election.
- rayward
July 19, 2011 at 8:11am
Actually, you know Republicans are not small 'd' democrats because their views often represent only 10-20% of the public. That is a subversion of democracy. Of course, if you happen to know where those people are on the income ladder, then you have to conclude that Republicans are aristocrats. Note that before classical liberalism became all the rage, economic conservatism meant doing whatever preserved the wealth and power of the rich, landed gentry. So yeah, I think Republicans are steadily taking things back a couple of centuries.
- chaitless
July 19, 2011 at 9:22am
I dunno about this, Warren is running the agency, and the worst that can happen is that Cordray will run the agency as a recess appointee. Worse comes to worse Obama has to come up with about 6 or so highly qualified individuals over 2 terms to do yearly stints. I am not sure of the rules but won't Warren be able to stay on after her year is up as acting director while the nomination process for Cordray goes on? Republicans playing this bullshit game are winning nothing, most of the work is done by government functionaries and the policies themselves won't change much from one Obama recess appointee to the next. The worst I can say is that each of the recess appointees has to work as hard as hell to get up to speed running the agency and then when they get the hang of it they would have to leave.
- blackton
July 19, 2011 at 9:32am
Blackton, This is not completely true. The GOP has threatened not to take their recess, i.e. hold pro forma sessions (as the Dems did in 2008) in order to keep recess appointees out. And, without a formal head of the agency, it can't write new regulations, which are necessary to regulate certain non-bank financial institutions or otherwise break new ground, as the agency is supposed to do.
- Curran1
July 19, 2011 at 2:04pm
A month or so ago, the United States Senate passed a law reducing the number of presidential appointees who must receive confirmation from the Senate. The US Senate continues to confirm or reject appointees who would make policy.
- Doug12
July 19, 2011 at 2:36pm
How can the Republicans prevent a recess? I think Obama is just too timid to make recess appointments. Part of his general appeasement. I am sorry that history coughed up this man at this time (as sorry as I was elated when he was elected). After the disasters of Bush, the Democrats should have been able to consolidate a majority for a generation. In my opinion, Obama squandered that opportunity, and here we are with the Republicans in control of government despite a nominally Democratic Senate and a nominally Democratic president. Pity.
- roidubouloi
July 19, 2011 at 8:32pm
This is a completely asymmetrical political tactic. The Democratic party at least has an investment in seeing the federal government actually function, so they would never abuse the nominations process to a similar extent. Unfortunately, the Republicans will never suffer what these tactics entail and hence will not be deterable.
- subterran
July 19, 2011 at 10:21pm