by Jeremy Leaming
Shortly after Sen. Majority Leader Harry Reid (D-Nev.) announced so-called filibuster reform, TPM reported that the chamber’s chief ringleader of obstruction, Sen. Minority Leader Mitch McConnell (R-K.Y.) “bragged” about killing the serious reforms that would have undermined obstructionists’ ability to so effectively wield the tool.
In this post not long before the “filibuster reform,” was announced I noted that it appeared Reid was prepared to suffer even more obstructionism. (TPM had reported that Reid was ready to forgo a simple-majority vote to make real changes to the filibuster that would require senators to actually mount and sustain a filibuster, instead of relying on an easy and stealthy manner of deploying the filibuster.)
Then late last week, as reported by TPM’s Brian Beutler, McConnell and 40 of his Republican colleagues promised try again to block the confirmation of Richard Cordray to permanently head the Consumer Financial Protection Bureau “unless Democrats agree to pass legislation dramatically weakening the agency.”
President Obama overcame the first Republican blockade of his choice to the head the CFPB via a recess appointment that will leave him on the job until the end of the year. A recent, though widely attacked, opinion by the U.S. Court of Appeals for the District of Columbia Circuit, found that Obama’s recess appointment of Cordray and three nominees to fill vacant seats on the five-member National Labor Relations Board were unconstitutional. The Obama administration has signaled it will appeal the opinion, with White House Press Secretary Jay Carney calling it “novel and unprecedented.”
Peter M. Shane, a distinguished law school professor and a leading expert on executive power has taken the D.C. appeals court to task for the ruling. In a recent piece for The Huffington Post, Shane noted that Obama is working with a Senate that has taken obstructionism to a whole new level. Not only has McConnell and his gang delayed, and in numerous instances, scuttled the president’s selections for the federal bench, they have also halted consideration of other executive branch nominations as well as legislation. McConnell and his right-wing colleagues have long sought to hobble the NLRB or ensure that it remained as business friendly as possible and they also opposed the creation of the CFPB. It was in this atmosphere that the president felt compelled to use the recess appointments – as many of his predecessors had – to make the NLRB a functioning body and to appoint a leader to a new agency tasked with helping curb the tawdry business practices that helped bring about the Great Recession.
The constitutional impotence that the DC Circuit would impose on the president means that filibustering senators can prevent an agency from functioning -- thus effectively repealing the law that created the agency and authorizing its functions -- simply by refusing to confirm an agency head or enough voting members to constitute a quorum.
Shane notes that Congress was not “intended to be a rubber stamp.” But McConnell has led obstructionism to overcome battles his party could not win legitimately. Shane continued, “But stalling nomination votes simply to keep laws from being enforced – effectively repealing the laws that cannot be enforced without the nominees in place is utterly inconsistent with the Senate’s proper confirmation role. It amounts to one-House lawmaking, and violates the spirit, if not the letter of the Constitution.”
In a follow-up piece, Shane provides more reasons why the D.C. Circuit is “wrong, wrong, wrong” on recess appointments.
The move by McConnell to embrace the filibuster yet again for obstruction is far too quick a reminder of just how suspect the so-called filibuster reforms were.
[image via Gage Skidmore]