Ending Minority Rule

The first test vote that Senate Majority Leader Harry Reid is scheduled to bring before the Senate this morning is that of Richard Cordray, President Obama’s pick to head the Consumer Financial Protection Bureau. Reid decided to lead off with Cordray for a very good reason: The Republicans’ insistence on filibustering him makes clear their real intent is to throttle the Bureau. They are using a filibuster of an appointment to effectively repeal legislation they don’t otherwise have the votes to repeal. Nothing could better make Reid’s case that the filibuster has been twisted into a vehicle for minority rule.

Republicans have openly acknowledged that their opposition to Cordray isn’t to Cordray himself. Rather, they say, they oppose giving the bureau’s director the power to direct the bureau. Instead, they’d like a bipartisan board to run the bureau. Their reasoning is straightforward: A single director might just advocate for consumers. If there were a bipartisan board, however, it would have members who defended the banks against the wails of petulant depositors. What the bureau needs, they argue, is to alter its single-minded focus on consumer protection.

Alas for Republicans, the Dodd-Frank bill that passed in 2009 didn’t establish a board. Rather, it established a bureau run by a director. In this, it was structurally similar to numerous federal agencies that have a single director, including Federal Deposit Insurance Corporation, which is charged with overseeing banks’ solvency. To change the structure of the CFPB, Republicans would have to repeal that section of Dodd-Frank, which they probably have the votes to do in the House but clearly lack the votes to do in the Senate. Then, they’d have to come up with two-thirds supermajorities in both houses to override President Obama’s certain veto. They wouldn’t have the votes for that in either house.

But by refusing to allow a majority vote on Cordray, they can cripple the Bureau without actually having the votes to do that directly. It takes just 40 of the 100 senators to keep the Bureau from fully functioning. That’s why Reid is leading off with the Cordray nomination: It exposes the Republicans’ most naked attempt at minority rule.

The Republicans opposition to the president’s nominees to the National Labor Relations Board is, if anything, even more brazen. Obama has appointed three members from his party and two from the opposition to the board, as every president has done since the board’s creation in 1935. Beginning with the George W. Bush presidency, however, some of those appointments have been recess appointments, as neither party has been willing to vote for the other party’s nominees. In the latter days of the Bush presidency, the board actually shrunk to two members, which, the Supreme Court later ruled, didn’t constitute a quorum. All the board’s decisions from that time (and they were unanimous: the one Democrat and one Republican on the board only issued decisions when they agreed) were invalidated.

Obama has now sent three nominations (two Democrats, one Republican) to the Senate, which Republicans have vowed to kill by filibuster. If they do, the board will again shrink down to two, meaning it would be unable to function. In a display of industrial-strength chutzpah, Republicans have held out the option of confirming the one Republican nominee, which would give the Republicans a two-to-one majority on the board—a board where picks from the president’s party are supposed to be in the majority.

The Republican opposition to Obama’s nominees would have the effect of rendering the NLRB powerless. Workers who by majority vote decide to form a union in their workplace could have their efforts stalled by employer challenges to the NLRB’s right to supervise the election. Private-sector unionization has long since ground to a halt anyway, due to the holes that employers and pro-business courts have bored in the National Labor Relations Act. Be that as it may, rightwing zealots apparently fear that somewhere in the United States, there may be a handful of workers able to form a union. Lest that happen, the Senate Republicans are intent on filibustering the president’s nominees.

So, how do you repeal Dodd-Frank and the National Labor Relations Act when you don’t have anywhere near the votes to do so? You filibuster the president’s appointments. Which is why Senate Democrats are entirely justified if they opt to nuke the filibuster on presidential nominees. In so doing, they can invoke what has become a forgotten doctrine in the Senate. It’s called majority rule.  

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