Senate Republicans rejected pleas from conservatives to stand on principles against the “nuclear option” threatened by Majority Leader Harry Reid (D-Nev.), when they helped July 16 confirm Richard Cordray as the director of the Consumer Financial Protection Bureau.
Reid’s nuclear option would have, through a parliamentary maneuver, lowered the threshold for closing debate from 60 votes to a simple majority—effectively ending the filibuster as a tool for the minority party to delay the Senate action.
The majority leader needs a simple majority to change the rules, but he needs a two-thirds majority to end debate on rule changes.
If Reid ends debate by parliamentary assertion on a rules change, he will have broken the rules to change the rules.
There is a two-step vote process in the upper chamber. First, there is the motion to process and then there is the actual vote on a motion. Often, the real Senate battle is the vote to close debate on the motion to proceed. After that 60-vote threshold is met, the actual vote on the matter-at-hand is a forgone conclusion, except for the clever ones, who switch sides for appearances, knowing the everyday voters tend not to look up both votes.
To set up the Republicans, Reid filed cloture motions for seven of President Barack Obama’s nominees stalled by potential filibusters, including Cordray, two recess appointments to the National Labor Relations Board and Thomas E. Perez for Secretary of Labor and Gina McCarthy for Environmental Protection Agency administrator.
Cordray was the big one.
In the Dodd-Frank financial regulation law that created the Consumer Financial Protection Bureau, the bureau was to stand up under the aegis of the Treasury Department until its first director was confirmed by the Senate.
Upon that confirmation, the CFPB spins out of the Treasury cocoon to the Federal Reserve, where the Fed would provide the bureau funding, but have no oversight. No oversight by the Fed and funding independent from congressional appropriations were just two ways the bureau was designed to be immune from political pressure—read: democratic pressure.
Obama and Reid tried Dec. 8, 2011 to confirm Cordray, but the cloture motion failed 53 to 45. Three weeks later, Obama declared the Senate to be out of session and made a Jan. 4, 2012 recess appointment, and with Cordray in place, spun out the bureau as an independent agency.
Republicans made noise, but after a time, GOP senators treated Cordray as a legitimate director and the CFPB as a legitimate agency. In fact, in the GOP-led House, the Republicans leadership did nothing to force the CFPB back under its appropriations power or rein it in.
As the Republicans rolled over and accepted Cordray and the rogue CFPB, a Washington State Pepsi bottler Noel Canning, joined by the Chamber of Commerce, sued to block three of Obama’s recess appointments to the NRLB, made at the same time as the Cordray appointment. When the federal courts ruled Jan. 25, 2012 the NRLB appointments unconstitutional, the Cordray recess appointment was by extension in jeopardy.
But, that was then, this is now. Back in 2012, Republican leaders dismissed action-oriented conservatives: “Don’t rock the boat. When we win back the Senate and the White House, we will do everything you want.”
They say hope is not a plan, well, apparently neither was W. Mitt Romney.
Still, a reelected Obama still needed to get a legitimate confirmation for Cordray to keep everything legal.
There could have been a showdown on principle when Reid brought the bureau director’s name to the floor, but that is not how Republicans play, or roll. Republicans could have threatened their own nuclear option, promising to withhold unanimous consent for all the casual things in the Senate that are U.C.’d, such as dispensing with the reading of bills or the naming of post offices. Instead, 18 GOP senators, 16 of whom voted in 2011 to filibuster the man, voted to end debate on the Cordray nomination.
The compromise was engineered by Sen. John S. McCain III (R.-Ariz.), who traded Cordray in exchange for Reid agreeing not to break the rules to change the rules.
But, do not worry, Republicans are now saying, because when the GOP takes over the Senate in 2014, everything will be different.
Neil W. McCabe——
Bio and Archives
Neil W. McCabe is the editor of Human Event’s “Guns & Patriots” e-letter and was a senior reporter at the Human Events newspaper. McCabe deployed with the Army Reserve to Iraq for 15 months as a combat historian. For many years, he was a reporter and photographer for “The Pilot,” Boston’s Catholic paper. He was also the editor of two free community papers, “The Somerville (Mass.) News and “The Alewife (North Cambridge, Mass.).”
