The Senate Strikes Back

The on going battle over the confirmation (or not) of Elizabeth Warren as the permanent head of the

Consumer Financial Protection Bureau heated up a lot at the end of last week.  The left, as embodied by a coalition of progressives, want Warren confirmed as the head of the CFPB.  The CFPB officially takes power July 21, and though Warren has been unofficial interim director for a year, she has never been confirmed because she has never had enough support in the Senate to survive the confirmation hearings.

With that in mind, left wing supporters last week launched an online petition to encourage the White House to use a recess appointment to appoint Ms. Warren to the head of the CFPB.  Presumably, the Senate would be on a one week recess for Memorial Day, and that would give the White House the opportunity to appoint Warren without going through the confirmation process.  Warren is very popular among anti-business interests, and in fact her progressive supporters say that they have 150,000 signatures on a petition urging Obama to appoint her as head of the CFPB.

The Huffington Post quoted Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, as saying, "Since Republican senators said they wouldn't confirm anyone that the President nominates, he has no choice but to make a recess appointment...So we're showing him that there's broad public support for Elizabeth Warren."

Recess appointments have become just one more means of circumventing a constitutional process of checks and balances that our founders set in place.  Rather than allowing nominees to go through the process of being vetted and confirmed by the Senate, Presidents tend more and more to wait for the Senate to take a vacation so that they can push through their own nominee.

This time, however, the Senate is fighting back. On Thursday, Senators David Vitter, (R LA) and Jim Demint (R SC) sent a letter to house speaker John Boehner (R OH) urging him not to approve a Senate recess.  Eighteen other Republicans signed the letter as well.  Neither chamber of Congress can go into recess unless both chambers approve doing so.   "Given President Obama's indifference to the Senate's constitutional authority and the American people's right to scrutinize his appointees through regular order of advise and consent, we urge you to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the President's term." 

At the same time that Boehner was being pressured not to allow the adjournment, Senator Jeff Sessions (R-Ala) said that he would not agree to a unanimous consent request to allow the Senate to adjourn.  Although Boeher is being very quiet on the extent of his involvement, on May 27 the Senate announced that it will hold pro forma sessions all week.  The announcement lead Vitter to issue the following statement: "Thanks to the leadership of Speaker Boehner we won't have a formal adjournment that would allow for far-left Obama recess appointments. Obama has already overreached far too much with unauthorized czars and the like. I'll continue to push for this strategy for every recess."

A Justice Department briefing from the Clinton era suggested that if the Senate is not in session for more than three days, it can be considered in recess.  Therefore, the Senate will hold pro forma sessions May 27, May 31, and June 3rd.  However, these sessions can last only minutes at a time so as not to disrupt the Senators' vacations.

Obviously the issue of who will head the Consumer Financial Protection Bureau is of extreme importance.  Republicans have promised that they will veto any nominee the President brings forward until the basic structure of the CFPB is changed from a one person director to a board with more accountability.

Blocking Warren's appointment is a very good start.  If Warren is not appointed, there are a lot of rumors that she may run for Scott Brown's Senate seat in 2012.  And, according to the Huffington Post, this might actually benefit Democrats more than her appointment to the CFPB, since the idea of Warren at the helm of one of the most powerful agencies our government has ever created is unnerving to "high powered Democratic donors on Wall Street, who might otherwise wind up in Warren's crosshairs."

Whether Warren runs successfully or unsuccessfully for the Senate seat from Massachusetts, Republicans need to refuse to confirm any nominee to the CFPB.  But rather than looking to restructure this agency, we need to be looking for a way to dismantle it.   The CFPB represents too much power in too few hands, whether we are talking about one director, a five member board, or a twenty-five member board. This is a massive expansion of government that should not be allowed to move forward.

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