Obama’s Nullification Crisis

Can the president outwit Republicans who want to filibuster his nominees out of existence?

Richard Cordray.
Richard Cordray, President Obama’s most recent nominee to the Consumer Financial Protection Bureau

Chip Somodevilla/Getty Images.

Richard Cordray was the safe choice to run the Consumer Financial Protection Bureau. The Ohio Democrat didn’t clash with bankers over TARP oversight, like Elizabeth Warren had. She, as Republican ad-makers are now telling Massachusetts voters, is a Harvard professor who loves Occupy Wall Street. Cordray is a five-time Jeopardy! champion and a former state attorney general. Easy sell.

So Cordray went through the nomination junket. Democrats put him up for a vote. Shortly after 10:30 a.m. today, he was filibustered by all but one Republican. President Obama, who’s watched a number of nominations fall before Mitch McConnell’s buzzsaw, tromped down to the White House briefing room to share his outrage.

“My hope and expectation,” said Obama, “is that Republicans who blocked this nomination come to their senses.” With that indignation out of the way, he fielded a question about whether he’d appoint Cordray in a recess. “We’re gonna look at all our options,” he said. He might have to. “Part of what’s happened over on Capitol Hill is they will hold up nominations to make points. I’ve got assistant secretaries to the Treasury who are being held up for no reason just to see if they can use that to reverse some law that’s already been passed.”

That’s true. Republicans blocked Cordray because, having lost the fight over whether the CFPB should exist, they want to prevent it from functioning. Filibuster is a fine, accurate word for this, but a better word might be nullification. And this GOP attempt at nullification will probably work.

Republicans will talk about this strategy to anyone who listens. They talked about it in the run-up to the vote. “We really are not arguing about Mr. Cordray,” Sen. Kay Bailey Hutchison, R-Texas, told PBS News on Dec. 7. “I think he does have qualifications, if we could get this structure set, so that there would be an accountability in this agency, which there is not.”

That day, I asked Sen. Richard Lugar if the CFPB would be hampered by a Cordray filibuster. “I don’t see that as a problem,” he said. “I think the creation of this particular organization in this form was a legislative disaster. It’s not a question of the merits of the nominee. It’s a question of accountability.”

This is what Republicans were saying about the CFPB in 2010. They didn’t like that it was set up as part of the Federal Reserve, and they didn’t like that its chairman would be given a five-year term, which meant he didn’t serve at the pleasure of the current president. They lost; the CFPB was born.

Republicans responded to the birth of the CFPB exactly how Hiroo Onada responded to the end of World War II—by pretending they hadn’t really lost. After today’s vote, multiple Republicans—Sen. Jon Cornyn and Sen. Roy Blunt, to name two—announced that they’d defeated an “unaccountable czar.” Conservative columnist Michelle Malkin labeled Cordray a “super-czar.” A “czar,” according to the legislation that House Republicans have introduced to ban such positions, is somebody “inappropriately appointed to such position (on other than an interim basis), without the advice and consent of the Senate.” When GOP leaders applied that name to Cordray, they shifted the goalposts. Now, a “czar” is simply somebody who does a job that Republicans don’t want to exist.

The irony is that the urge to nullify troublesome government posts is turning more people into “czars.” The Centers for Medicare and Medicaid Services is supposed to be led by a Senate-confirmed appointee. In 2011, this leader was Dr. Donald Berwick, a man who once said that the future of health care would “of course” involve rationing. Senate Republicans pledged to filibuster him. He got a recess appointment, served out a partial term, then left. Republicans (led here by Sen. Jon Kyl) argued that the administration was afraid of a “debate” about rationing, as if Republicans weren’t going to filibuster Berwick when that hypothetical debate was over. The Independent Payment Advisory Board, the Fed-like organism that would ration care, hasn’t been staffed yet—Republicans have said they won’t confirm people to serve on it.

I asked Lugar how IPAB would be affected if no one was confirmed to it. “There’s always the possibility of filling these jobs during a recess,” he shrugged. But perhaps Lugar doesn’t even need to worry about that possibility. Since the end of May, the Republican-run House has effectively ended recess appointments. How? By simply refusing to go into recess.

This isn’t a new idea. When Democrats took the House and Senate in 2006, they declined to pass adjournment resolutions during breaks. Keeping Congress in “pro forma sessions” turns out to be easy—you send a member from Virginia or Maryland in to bang the gavel every third day, and voila, no recess. Republicans aren’t saying anything on the record yet about how they’ll handle the end of the year, when there’s typically a short recess to mark the interregnum between sessions. (There’s a chance that the payroll tax fight could drag on longer than they planned.) We do know what they’re allowed to do. The House could refuse to adjourn until the moment before the next session begins. On Jan. 3, at 11:59 a.m., it could end the first session of the 112th Congress; at noon, the second session would begin. No time for a recess. No way for Obama to appoint someone to the CFPB or anything else.

Are there ways for the administration or Senate Democrats to get around this? There are theories, and the political scientist Jonathan Bernstein has been collecting the best ones. ThinkProgress judicial blogger Ian Millhiser has called for Obama to use “the Teddy Roosevelt precedent” and copy what the original progressive did in 1903, when a half-day recess turned into an orgy of 160 appointments. What would prevent the White House from hitting “print” on the news that it had appointed Richard Cordray a few seconds after 11:59 a.m.?

McConnell spokesman Don Stewart dismissed that idea. In the “modern era,” he pointed out, no president has made an appointment during a recess lasting less than 10 days. The strong hint: If Obama tries to pull that move, he’ll be breaking all acceptable precedents. He’ll be using a nuclear option, staging a constitutional crisis. The Republicans? Why, they’re only nullifying the jobs that shouldn’t exist in the first place. And as far as the GOP is concerned, it’s easy to win a stare-down if the other guy always blinks.