A GOP Tyranny of the Minority: The ‘New Nullification Crisis’

Posted by AzBlueMeanie:

A little more than a week after Senate Democrats decided not to weaken the filibuster,
Republicans are vowing to filibuster President Barack Obama's nominee
to head the Consumer Financial Protection Bureau unless its powers are substantially
reduced. So how's that filibuster deal working out for you, Harry Reid? GOP to Filibuster Obama's Consumer Watchdog Pick:

WSbullThe CFPB was created as part of the 2010 financial regulation bill
specifically to prevent financial institutions from engaging in the kind
of exploitative practices that helped lead the country to the brink of
economic collapse in 2008. Since January 2012, when Obama appointed
former Ohio attorney general Richard Cordray to head the bureau, it
has done exactly that—reigning in unscrupulous mortgage lenders, credit card companies, and debt servicers.

But the CFPB has only been able to do those things because Obama, using
what's called a recess appointment, installed Cordray in his post while
most of Congress was on vacation—an attempt to bypass Senate
Republicans' efforts to block the nomination. Before Cordray was picked
and blocked, Republicans had vowed to filibuster Elizabeth
Warren, who came up with the idea for the bureau and helped found it,
too. That didn't go as well as they had hoped: Warren recently returned
to the chamber as the new Democratic Senator from Massachusetts.

Last week, a
DC Circuit Court panel made up of conservative Republican-appointed
judges ruled that Obama's appointments to the National Labor Relations
Board (made at the same time as Cordray's) were unconstitutional.
Although the Constitution allows the president to make temporary
appointments while Congress is in recess, the court ruled that a
GOP procedural gimmick of holding brief sessions for the express purpose
of blocking Obama from making recess appointments meant that Congress
was technically not in recess. Not only that, but the court also so
narrowed the criteria for making a recess appointment that most of the
recess appointments made by Republican or Democratic presidents over the
past hundred years could be considered illegal and unconstitutional.

[Update: Brian Beutler reports that Federal Appeals Court Decision Would Have Invalidated Hundreds Of Recess Appointments From Reagan To Obama: The Congressional Research Service turned back the clock
(PDF) to the beginning of Ronald Reagan’s first term and dug up all the
recess appointments they could find in the ensuing 32 years. Hundreds
of recess appointments — by Presidents Reagan, H.W. Bush, Clinton, W.
Bush, and Obama — would have been unlawful exercises of the recess
appointment power had the new appeals court decision been in effect at
the time, the CRS found in a memo dated Monday.]

Senate Republicans want three big changes before they'll stop blocking Cordray. First, they want the CPFB
to be by Congress rather than the Federal Reserve. Subjecting the
bureau to the congressional appropriations process would compromise its
political independence.

Second, Republicans want the range of financial
institutions the bureau has authority to regulate narrowed. This
would leave unsupervised some of the problematic institutions the bureau
was created to regulate. The GOP also wants to replace the single director with a board of directors, which would hamper the ability of the bureau to make decisions.

Finally,
the GOP is demanding that other bank regulators—the same ones who
failed to prevent the 2008 financial meltdown
—be allowed to chaperone
the CFPB by "verifying" that its rules "would not harm the safety and
soundness of banks." This would let regulators who turned a blind eye to
exploitative practices in the past because they were profitable tell
the CFPB
what to do—and the more different regulators have to approve of a rule,
the more convoluted and less effective it is likely to be.

Blocking Cordray could leave the CPFB without most of its powers
to regulate the very financial institutions whose practices helped lead
the country into near-economic collapse in 2008. That's just how
Republicans want it. Having failed to prevent the financial regulation
law from being passed, they are now seeking to nullify it through
procedural extortion
. (It's best to read the letter signed by all but two Senate Republicans, promising to block—for the third time—any possible CFPB head.)

As Dave Weigel notes, Republicans Trying to Nullify Consumer Finance Protection Bureau:

[T]he entire premise of the letter is flawed. How do you pass these
reforms, given that Democrats control the Senate? You don't. How do you
stop the White House from doing another end-run around the Senate and
appointing a new director? You can't. But you can controversialize the
CFPB by forcing the president to staff it via "tyrannical" means
. And
given that Obama's won two presidential elections, and that the last
blocked CFPB director has won a Senate election, denying a mandate takes
innovative thinking.

Steve Benen explains why this Tea-Publican "innovative thinking" is so radical. Extortion politics that cannot stand:

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.

* * *

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.

Jamelle Bouie at The American Prospect adds, The Nullification Crisis, Part Deux:

[B]lanket objections to any nominee—out of opposition to the
agency itself—is an unacceptable and unprecedented abuse of Senate
powers
. Far from offering “advice and consent,” GOP senators are using
the confirmation process to block implementation of laws passed by
Congress and signed by the president.

Two years ago, Brookings Institute scholar Thomas Mann described this tactic as the “new nullification,”
and it fits—a small minority is refusing to fill posts because it
doesn’t like the law that authorizes the position. It’s a call back to
the antebellum idea, advanced by South Carolina’s John C. Calhoun, that
states are empowered to block laws they deem unconstitutional. This new
nullification is less dramatic—the public doesn’t pay attention to
congressional maneuvering—but arguably more effective; a recess
appointment was required to give the CFPB a director, and even that’s in
jeopardy now that the D.C. Circuit Court of Appeals has challenged its legality (each of the court’s three judges were appointed by Republican presidents).

* * *

The federal government can’t operate when one party has decided to abuse
legislative rules and (effectively) nullify laws it doesn’t like
. Or,
put another way, it’s one thing for the minority to have a voice in
legislating. It’s something different—and more dangerous—to cede basic
governance to its whims.

It is anti-democratic and un-American. Tea-Publicans are pursuing "nullification" strategies in Congress and in state legislatures, including Arizona. They reject the will of the voters expressed in a democratic election. They genuinely believe that they are entitled to lord over us by some divine right.

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