Nel's New Day

July 16, 2013

GOP Backs Down from the Filibustering

High in the media during the last several days has been the term “nuclear option,” which means a simple majority vote in the Senate to remove the possibility of filibustering presidential nominees. In 1957, Vice-President Richard Nixon wrote the opinion that the U.S. Constitution gives the presiding officer the authority to override Senate rules in this way. After discussion in the majority party, Democrats seem to have the necessary 51 votes, and the GOP decided that they might need to play nice–at least temporarily. The entire Senate met secretly last night with no media present, and the Republicans reluctantly agreed to vote on a confirmation for seven of President Obama’s nominees.

This afternoon, Richard Cordray was confirmed to lead the Consumer Financial Protection Bureau by a vote of 66-34. President Obama nominated him 700 days ago, but Republicans thought that by refusing to confirm any  head for that agency that they could stop the 2010 Dodd-Frank law. Sen. Elizabeth Warren (D-MA), who helped establish the rules that aids consumers in issues such as credit cards and mortgages, was the first person considered for a nomination, but Senate GOP members adamantly opposed her nomination. They may now regret their earlier refusal to consider her because of the power she wields in the Senate.

Other pending nominees are three to serve on the five-member National Labor Relations Board and leaders of  the Labor Department, Environmental Protection Agency, and Export-Import Bank. President Obama had appointed two board members earlier, but the Senate maintained it was illegally done because they had not recessed when they left town. A federal judge decreed the temporary nominations unconstitutional, and the board was again left with only two members.

The current dysfunction of Congress began almost five and a half years ago in the night of President Obama’s first inauguration. Congressional GOP leaders met to plot against the new president, agreeing that they would provide no cooperation or compromise—just continual obstruction.  During that five and a half year period, McConnell consented to stop the blockage but failed to live up to his word.

GOP senators have loudly protested the filibuster when Democrats were in the minority several years ago. Reid’s office has helpfully compiled a video of GOP senators calling for filibuster reform in 2005. For example, former Sen. Jim DeMint (R-SC), now head of the ultra-conservative Heritage Foundation, gave a compelling case for blocking filibusters when he said,   “Now that the American people have clearly spoken by democratically electing a Republican president and a Republican majority in the Senate, 41 senators are attempting to deny the will of the people.”

Sen. Lamar Alexander (R-TN), who voted to filibuster several of President Obama’s judicial nominees, proclaimed, “I would never filibuster any President’s judicial nominee, period.” Sens. Saxby Chambliss (R-GA), Johnny Isakson (R-GA), Tom Coburn (R-OK), John Cornyn (R-TX), Mike Crapo (R-ID), Lindsey Graham (R-SC), Mitch McConnell (R-KY), Jeff Sessions (R- AL), Richard Shelby (R-AL), and John Thune (R-SD) all labeled such filibusters unconstitutional.

After the GOP’s whining about the Democrats’ filibuster, seven Senate Democrats relented and voted to confirm the three nominees. One was Judge Priscilla Owen, who had taken thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court before she reduced Enron’s taxes by $15 million. Another was Judge Janice Rogers Brown, who compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution.”

In 1949, Senate rules created the current process requiring 60 votes to end a filibuster on a presidential nominee, 36 executive branch nominees have needed this “cloture” vote—almost half of them under President Obama.

According to last night’s agreement, filibusters are permitted for legislative and judicial nominees, but the GOP cannot refuse the president the right to fill key vacancies. Without a director, the Consumer Financial Protection Bureau cannot issue rules and perform other key tasks. Advancement in the climate change agenda is prevented until there is a director for the Environmental Protection Agency. Both workers and employers will be hurt without new members on the National Labor Relations Board with its function of ruling on collective bargaining disagreements between unions and companies.

The agreement last night developed from several developments:

McConnell has abdicated his former position of working compromises with Senate Democratic leaders and has been replaced by Sen. John McCain (R-AZ). McConnell still has the title of minority leader, but McCain appears to be the party’s chief negotiator.

The U.S. Supreme Court has agreed to hear the case about NLRB recess appointments. If SCOTUS supported the president, the GOP could no longer block recess appointments by saying that they didn’t really recess the Senate. Confirming nominees to the board will make the case moot.

Without confirmed members, the NLRB will not function after August 27. This may be part of the reason that Democrats confronted the GOP senators.

The Dems can threaten the nuclear option any time that they want. If the GOP senators start blocking executive-branch nominees, the threat can re-emerge. And it may happen soon.

Although the agreed-upon confirmations should be done before the Congressional August recess, the Senate will need to approve a new Secretary of Homeland Security because Janet Napolitano is leaving and a new commissioner for the Internal Revenue Service, a position empty since November 2012. President Obama will also need to name a new head for the Federal Reserve’s Board of Governors, and the Senate needs to confirm three nominees to the D.C. Court of Appeals, a court second only to the U.S. Supreme Court.

Some senior GOP senators, including McConnell and Sen. Chuck Grassley (R-IA), are sure to block those judicial nominees on the grounds that the court already has a quorum. It’s their position that all President Obama’s judicial appointments need to be blocked so that a future president, in GOP minds a Republican, can continue to load the courts with conservatives. One of the positions has been empty since 2005 when Chief Justice John Roberts left for SCOTUS.

Reid said that he has had to overcome 413 filibusters, and the GOP will probably not stop their games. There may be another secret meeting of senators regarding these and other nominees.

January 5, 2012

Cordray Appointment Necessary, Resented by Conservatives

From the looks of headlines today, the storm surrounding the appointment of Richard Cordray as director of the Consumer Financial Protection Bureau is going to overcome some of the publicity of the New Hampshire primary in five days.

Republicans would do well to be afraid of him. First, he’s pretty intelligent. With a masters of economics from Oxford University and editor-in-chief of the University of Chicago Law Review, he clerked for Supreme Court Justices Byron White and Anthony Kennedy—a Reagan appointee—and represented the U.S. government before the Supreme Court three times, once for George H.W. Bush. Cordray is also an undefeated, five-time champion on Jeopardy!, winning $45,303.

Conservatives refuse to accept the existence of the CFPB because they don’t want any fiscal oversight, but they also oppose Cordray because he goes after both Wall Street financial institutions and individual executives. When he explained his lawsuit on behalf of Ohio pensions against the Bank of America Merrill Lynch merger because BofAS concealed billions of dollars of Merrill Lynch losses from their clients, he said:

“My understanding of a bonus is that it’s a special reward for superior performance. There wasn’t any superior performance for special reward; nonetheless, they [BofA and Merrill execs] wanted the bonuses. They ultimately, as best we know, got approval to pay out somewhere between $3 and $4 billion in bonuses, which was a very material element to the value of the merger. That was not disclosed to investors.

“…we’ve also pursued some of the top executives–not just the corporations themselves. We do think that they bear their share of the blame–we think that they need to be held accountable as well. We think that that’s a principle that sends a message to other corporate executives on Wall Street that is a further disincentive for this kind of thing in the future.”

Makes sense to me. Also what makes sense is the importance of the power that CFPB will have over groups now that the agency has a director:

Non-bank Mortgage Lenders and Services: Existing laws and rules governed these groups, but there was no oversight to make sure that they followed the law. Now monitors may discourage mortgagers from using “robo-signers” to foreclose on borrowers without any required paperwork.

Payday Lenders: Federal laws such as the Truth in Lending Act already govern these companies that make high-interest short-term loans, but again there is no federal oversight to guarantee compliance. Examiners can now go to firms suspected of illegal or abusive practices.

Private Student Lenders: Examiners already have the authority to check out these companies; now they can require lenders to follow existing rules and write new ones to guarantee fair lending.

Prepaid Debit Card Companies, Credit Bureaus, Money-Transfer Companies, Check Cashers, Debt Relief Services: Again subject to federal laws, these companies have little oversight.

Big Banks: Already overseen by the agency, nothing much will change. Banks will stay “too big to fail.”

In summary, the CFPB isn’t currently trying to pass new regulations; it’s just trying to enforce existing ones. Republicans don’t want these laws enforced! They should take note that Congress’s approval rating is 9 percent compared to 46 percent for President Obama. At this time there are 202 unconfirmed executive and judicial nominations because of the Senate Republicans’ custom of filibustering nominees and forcing cloture calls to create long delays.

Equally frustrating, however, is the state of “journalism,” including the reporting of President Obama’s appointments. Today’s article about the appointment of Cordray highlighted AP’s shortcomings. According to the Merriam-Webster Dictionary, journalism is “writing characterized by a direct presentation of facts or description of events without an attempt at interpretation.” That’s the way that I taught it. Any analytical person knows that Fox News is not journalism. But the venerable AP should be.

The lead sentence of this article, claiming to be news and not analysis, begins with the emotional words, “Defying Republican lawmakers, President Barack Obama on Wednesday barreled by the Senate….” The article continues with such phrases as “setting a fierce tone” and “sought to make a splash.” Another sentence begins, “In political terms, Obama’s move was unapologetically brazen, the equivalent of a haymaker.”

I expect such verbiage from my small-town newspaper because it pays very low salaries and has a publisher with no understanding of journalism. But the first sentence of the AP website states, “For more than a century and a half, men and women of The Associated Press have had the privilege of bringing truth to the world.”  Further down the introduction states, “That means we abhor inaccuracies, carelessness, bias or distortions.” Don’t believe them. Nel’s New Day does not claim to be unbiased; the AP does.

Meanwhile, the Republicans will be sure to continue the battle, possibly taking the President to court over something that they consider unconstitutional. Imagine where the approval ratings will head when they try to sue a president for legally helping the people of the United States to save money and avoid fraudulent companies!

January 4, 2012

Iowa Caucus Finished, Obama Makes Recess Appointments

What an interesting caucus in Iowa! Michelle Bachmann is gone, Rick Perry will “reassess” his candidacy on January 21 (or not, depending on the moment), and Rick Santorum (the next “anyone-but-Romney” candidate) lost to Mitt Romney by 8 votes. Romney received six fewer votes than in 2008 when Mike Huckabee got 40 percent of the vote.

Friends of Romney may start focusing their venomous television advertising on Santorum. Jon Huntsman didn’t even try for Iowa votes, and Newt Gingrich keeps plugging along to sell his books. Meanwhile Ron Paul, in third place, might consider running as a third candidate.

The best news of the day, however, is that the Democrats are retaining a spine. Fed up with the Republicans’ constant stalling, aka filibuster, President Obama will keep the National Labor Relations Board (NLRB) functioning by recess-appointing Sharon Block, Richard Griffin, and Terence Flynn to the board. Block and Griffin are Democrats; Flynn is a Republican. Without these appointments the NLRB would lose its three-member quorum, necessary for issuing rules and regulations, because Craig Becker is another recess appointment.

Obama also made a recess appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. The CFPB was created as part of the Dodd-Frank financial reform law to enforce a variety of financial consumer protection laws. Without a director, it cannot follow the law’s mandate. Republicans thought that if they blocked this appointment, they could stop the law from taking effect, a process known as nullification.

Cordray was the first state AG to sue a mortgage lender over fraudulent practices and led efforts to rein in payday lenders. The CFPB, according to the law that passed 18 months ago creating the board, is tasked with overseeing lenders and financial institutions to prevent the types of predatory practices such as foreclosure fraud, discriminatory mortgage lending, and practices from payday, student loan, and credit card lenders that cheated and defrauded the American people before and through the recession.

All these positions have been empty for over a year because of the Republicans’ stalling.

As usual, many Republicans are having a fit, claiming that this has never happened before and is unconstitutional. Recess-appointments require a ten-day recess; Congress recessed on December 23. Republican leaders claim that this constitutes no recess. On the other hand, Sen. Scott Brown (R-MA) has said that he approves Obama’s actions because the Washington system is “broken.”

In 1903, President Theodore Roosevelt made more than 160 appointments during a recess of less than one day. President Ronald Reagan averaged three times as many recess appointments as Obama each year, making 243 total appointments during his time in office. Meanwhile, filibusters, a real power grab by conservatives, have increased two-fold since Obama took office, and a large number of votes never occur because of the GOP’s threats to filibuster.

All these appointments are very good news for the nation’s 99 percent!

December 13, 2011

Republicans Deny Obama’s Nominees, Nullify Law

The Congressional recess is frequently a time when presidents appoint nominees to official positions after the Senate refuses to act on these nominations. President Obama missed his chance last summer because the Senate didn’t officially call a recess: a senator showed up each day to hold a fake meeting, that they call brief “pro forma” sessions, to avoid recessing. Those sessions, typically lasting just minutes with a handful of members present, exist because of Article 1, Section 5 of the U.S. Constitution, which states that neither chamber will adjourn for more than three days without the consent of the other. If House Republicans do not agree to the Senate’s recess or vice versa, those brief sessions are required. GOP members have forced several of these sessions over the last few months, precisely to block recess appointments.

The Congress is nearing its usual winter recess after the conservatives’ customary refusal to approve nominees. So what’s Obama to do if they continue to hold pro forma sessions?

Article 2, Section 3 of the Constitution states that if there is a disagreement about when the chambers should adjourn, the president has the power to “adjourn them to such time as he shall think proper.” The power has never been used before perhaps because no other Senate has refused to approve such a large number of nominees.

Also the 20th Amendment of the Constitution states that the Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. That means that the Congress has to break in order to assemble. Theodore Roosevelt once made a recess appointment during a recess that was less than a day long, creating an historical precedent. Doing this, Obama would bring criticism from Republicans in the Congress, but that is nothing new for him.

A major position left empty for over a year is the head of the Consumer Financial Protection Bureau. Because Senate said they would reject Elizabeth Warren before she was appointed, Obama named Richard Cordray to be the financial watchdog. He has impeccable credentials, having been Attorney General of Ohio, and 30 other state attorney generals wrote to the Senate requesting his approval.

Although the Senate could have passed Cordray with a 53-45 vote, the Republicans filibustered—again—which required 60 votes to bring the matter up for a vote. The only Republican who voted for cloture was Scott Brown (R-MA), a practical approach because he is running against the extremely popular Elizabeth Warren for his Senate seat.

As of last September the Republican stall campaign in the Senate had sidetracked so many of the Obama’s judicial nominees that he has put fewer people on the federal bench than any president since Richard Nixon at a similar point in his first term 40 years ago. Despite the Democrats’ substantial Senate majority, Republican filibusters have caused fewer than half of Obama’s nominees to be confirmed and 102 out of 854 judgeships to be vacant.

Six years ago 14 Senate Republicans and Democrats made an informal agreement that a filibuster would be used for presidential nominees only in “extraordinary circumstances” in order to break a logjam on judicial nominees. Four of these Republicans who participated in this agreement are still in the Senate, and some of them are continuing the filibusters. An example of this is the 54-45 vote that failed to bring cloture to debate regarding the judicial nomination of Caitlin Halligan to join the District of Columbia Circuit Court of Appeals.

Sen. Lisa Murkowksi (R-AK) was the only Republican to vote against the filibuster.  Murkowski said Halligan deserved an up-or-down vote. “I stated during the Bush Administration that judicial nominations deserved an up-or-down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different President making the nominations,” she said.

Senate Judiciary ranking member Sen. Orrin Hatch (R-UT) voted present. Chuck Grassley (R-IA) said he opposed the nomination not because of Halligan’s views but also because he doesn’t believe the position is needed. The slot that Halligan was nominated for, to replace U.S. Chief Justice John Roberts, has been vacant for years.

Doug Kendall, president of the Constitutional Accountability Center, said in a release, “Let me be clear: Senate Republicans blocked a supremely qualified nominee today. Halligan is a lawyer’s lawyer. She clerked for the D.C. Circuit and the U.S. Supreme Court, she has a long and distinguished record of service in New York, and she has support across party lines–including from former George W. Bush nominee Miguel Estrada.  She is an exemplary nominee, supported by a majority of Senators. She was first nominated in 2010, and she should have been sitting on the D.C. Circuit by now.”

Cordray’s tenure would be five years if he were approved; federal judges are permanent. The more Obama nominees that can be avoided, the happier the conservatives will be. Their hope is that they will take over the Senate and presidency next year so that the entire judicial system will be as far right as possible.

Opposing Cordray has been profitable for several senators. Wall Street banks are fighting the new agency tooth and nail, and the 45 Republicans who vowed to block the agency’s director have received nice donations from the financial services industry, over $6.5 million from the financial industry in 2011 and nearly $125.6 million during their careers. Sen. Richard Shelby (R-AL), the ranking member of the Senate Banking committee (and lead signer of the letter), received at least $81,850 in 2011 and $6.2 million from the Finance, Insurance and Real Estate (FIRE) sector throughout his career.

What the senators are practicing in these two cases can be called “nullification.” Senators voted against Halligan because they didn’t see the need for the position (as declared by law), and they voted against Cordray because they don’t want the bureau to exist despite the fact that is passed Congress. They have been very open about their votes opposing the law that passed the bureau, not the person himself—in short, openly trying to keep an already-approved piece of legislation from taking effect. Sen. Orrin Hatch (R-UT) told the New York Times: “This is not about the nominee, who appears to be a decent person and may very well be qualified.” The Republicans are simply saying that they don’t like a law that was legally passed so they are going to behave as if it didn’t.

It’s not the first time that the Republicans have used nullification during Obama’s term. They refused to allow a vote on Don Berwick, Obama’s first choice to run Medicare and Medicaid–not because they seriously doubted his qualifications but because they don’t like the Affordable Care Act.

Nullification may have led to the Civil War. In 1830 Vice-President John C. Calhoun theorized that states had the power to “nullify” federal laws, using arguments from Thomas Jefferson and James Madison opposing the Alien and Sedition Acts. When he finally understood the danger of this position, he worked to develop a more bipartisan attitude, but the southern states continued to simmer until South Carolinacame to boil thirty years later followed by ten other states.

According to Article IV of the U.S. Constitution, Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Every member of Congress takes an oath to “support and defend” the Constitution and swears that they take that oath “without mental reservation or purpose of evasion.” Senate Republicans are pretending that they don’t have to follow the Constitution. The question is whether what they are doing is unconstitutional

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