Elizabeth Warren, Richard Cordray, and President Obama
It's not exactly news that Senate filibuster rules have been abused to the point of breaking the institution. Though the Senate operated by majority rule for about two centuries, there are now, as a practical matter, mandatory supermajorities for just about everything.
That said, some filibusters matter far more than others, and some may even rise to the level of a constitutional crisis.
President Obama nominated Richard Cordray to lead the Consumer Financial Protection Bureau about a year ago, and no one could find any objections to his qualifications. But Republicans don't believe the Consumer Financial Protection Bureau should exist, so they blocked Cordray's nomination in order to stop the law from being implemented. Indeed, GOP senators said they would indefinitely refuse to allow the agency to function -- or do any work at all -- unless Democrats agreed to weaken the CFPB's powers and lessen consumer protections.
Just so we're clear, this had never happened in American history. There was no precedent for the Senate blocking a qualified nominee solely because a minority of the chamber did not like the existence of the agency the nominee was selected to lead.
Obama tried to work around this blockade by giving Cordray a recess appointment, which according to a federal appeals court, may not have been entirely kosher. Either way, the president has now asked the Senate to give Cordray's nomination an up-or-down vote, which appears to have started the mess all over again.
Senate Republicans are renewing their vow to block any nominee to head the Consumer Financial Protection Bureau (CFPB) unless major changes are made to its structure.
In a letter sent to President Obama on Friday, 43 Republican senators committed to refusing approval of any nominee to head the consumer watchdog until the bureau underwent significant reform. Lawmakers signing on to the letter included Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Mike Crapo (R-Idaho), the ranking member of the Senate Banking Committee.
I know this might seem like inside baseball. For those who've grown accustomed to a constant stream of filibusters, this probably even seems routine. It's why I think it's important to stress how truly radical the Republican move really is.
What we're talking about here is a shrinking Senate minority pursuing a nullification strategy -- they want to nullify federal law by abusing procedural tactics in a way that's literally never been done in the United States.
If Senate Republicans want changes to the CFPB, there's already a mechanism in place that allows them to pursue reforms: it's called the existing legislative process. Senators can write a bill, send it to committee, try to persuade their colleagues of the proposal's merit, debate it on the floor, vote for it, etc.
But that takes time and effort, and it might not work, especially since the changes the GOP wants are absurd. So, instead, Republicans intend to block existing federal law from taking effect unless Democrats accept changes demanded by financial industry lobbyists.
This is crazy. The Republican message, in a nutshell, is this: "Weaken consumer protections or we'll use filibusters to block the executive branch from enforcing existing federal law." Our system of government simply can't work this way.
In fact, it's scandalous in its own right that Republicans are determined to prevent the CFPB from serving as a public watchdog, looking out for American consumers against financial industry excesses. It appears the GOP wants to return Wall Street oversight to the conditions that helped create the 2008 crash in the first place.
What's more, if recess appointments are off the table, it leaves the White House with no real options. Obama can't enforce federal law because the Senate minority won't let him, and he can't appoint officials to his own administration when the Senate leaves town -- exercising a power specifically given to the executive in the Constitution -- because, according to Republicans, congressional recesses no longer exist.
I realize phrases like "constitutional crises" should not be thrown around casually, but the Senate minority's strategy is untenable.
And since the White House has effectively run out of legal options, that leaves one of three possibilities: (1) a minority of the Senate, for the first time in American history, nullifies federal law by abusing filibusters; (2) a majority of the Senate reforms filibuster rules through the so-called "nuclear option"; or (3) public pressure forces the Senate minority to back down.
Something's gotta give.