Democrats in the U.S. Senate came closer than ever this week to stopping Republicans from forcing a supermajority vote on executive branch nominees. An informal deal deterred Democrats from changing Senate rules by simple majority vote and cleared the path for a handful of President Barack Obama's nominees to go forward. However, more struggles over confirmations seem likely in the future.
Iowa's Senators Tom Harkin and Chuck Grassley could hardly be further apart on the process by which the Senate gives its "advice and consent."
Senate Democrats have long been frustrated by the increasingly common use of filibusters to prevent the Senate from conducting normal business by a simple majority vote. The Constitution outlines only six scenarios that require a supermajority in the Senate, but in effect 60 votes are now needed for almost every Senate action. Judicial nominees are waiting longer than ever for confirmation votes. Obama resorted to recess appointments to fill some positions last year after Republicans made clear that they would not confirm anyone as director of the new Consumer Financial Protection Bureau.
Over the past week, Senate Majority Leader Harry Reid complained publicly about Republican obstruction of confirmations, pointing out that President Obama "has had 16 filibusters of his nominees, compared to 20 by all previous presidents," and that Reid has had to deal with hundreds of filibusters during his time as majority leader, whereas Lyndon Johnson only faced one filibuster during his time in the same role.
For years, Senator Harkin and others in the Democratic caucus have advocated changing the chamber's rules to limit the use of the filibuster. On July 15, news emerged that 51 Democrats were finally prepared to adopt new rules by simple majority vote--known as the "nuclear option" because traditionally the Senate only changes its rules in mid-session by a supermajority.
Harkin spoke on the Senate floor Monday to call for this rules change, at least regarding executive branch nominees. At the end of this post I've enclosed the full text of his remarks, as prepared. Here's an excerpt:
Monday evening, almost the entire U.S. Senate held a rare closed-door joint caucus to talk about the filibuster and a group of Obama appointees who have been held up for months:
Seven nominees are at issue: Richard Cordray as director of the Bureau of Consumer Financial Protection; [Richard] Griffin, [Sharon] Block and Mark Pearce to the National Labor Relations Board; Fred Hochberg to be president of the Export-Import Bank; Thomas Perez to be secretary of Labor; and Gina McCarthy to be administrator of the Environmental Protection Agency.
Cordray and the NLRB nominees are the most controversial.
Obama installed Cordray and two of the National Labor Relations Board nominees through recess appointments in early 2012, but a federal court later ruled that the appointments to the labor relations board were unconstitutional.
Yesterday the terms of a short-term deal emerged. Alexander Bolton reported for The Hill,
"They're not sacrificing their right to filibuster, and we damn sure aren't filibustering our right to change the rules if necessary, which I'm confident it won't be, but I want it made very clear," Reid said. "I'm very encouraged by discussions over the last few days. Both sides understand each other better."
He declared that the negotiations should establish a "new normal" in the Senate that will allow Obama and future presidents to staff their administrations without excessive delay: "Qualified executive nominees must not be blocked on a procedural supermajority vote."
As part of the agreement, Obama will withdraw two nominees to the NLRB, Sharon Block and Richard Griffin Jr., whom he put on the agency with recess appointments in January of last year. But Republicans have agreed to hold votes on two replacement nominees before the August recess.
According to other reports, the informal deal calls for the Senate to confirm nominees for EPA administrator, secretary of the Department of Labor, and head of the Export-Import Bank later this week.
Grassley clearly wasn't on board with the deal. He was one of 29 Republicans to vote against cloture (ending debate) on Cordray's confirmation yesterday morning. Later in the day, senators confirmed Cordray by 66 votes to 34; again, Grassley was in the group of Republicans who opposed Cordray's confirmation.
Grassley's office later released this floor statement, in which Grassley framed his opposition to Cordray as an effort to create "accountability and oversight" at the new federal bureau. That is consistent with his previous statements about Cordray, which found fault with the Consumer Financial Protection Bureau itself--not the nominee's record or qualifications.
Floor Statement by U.S. Senator Charles E. Grassley
Nomination of Richard Cordray/
Creation of a Consumer Financial Protection Bureau Inspector General
Tuesday, July 16, 2013
Mr. President, during the debate over the budget, Dr. Coburn and I offered an amendment to create a separate and independent Inspector General within the Consumer Financial Protection Bureau (CFPB).
We introduced this amendment because, thanks to a quirk in Dodd-Frank, the CFPB is the only major federal agency without its own Inspector General.
Dodd-Frank created the CFPB, but it did not create a CFPB-specific Inspector General.
Instead, because Dodd-Frank funded the CFPB through the Federal Reserve, the CFPB ended up sharing an Inspector General with the Federal Reserve.
This created a problem.
Right now, the CFPB's Inspector General has a split role.
He serves as both the Inspector General for the Federal Reserve and the CFPB.
This creates confusion and a battle for resources.
In fact, the Inspector General has already had to create two separate audit plans.
He also has had to hire employees that can oversee both the Federal Reserve and the CFPB.
The end result is an office split by two very important, but very different priorities.
Dodd-Frank created the CFPB within the Federal Reserve in order to fund the Bureau without having to use Congressional appropriations.
This was a marriage of convenience.
The CFPB's function is very different from the Federal Reserve.
Despite this, years after Dodd-Frank was passed, this unique situation remains.
My concern is that if you have one Inspector General trying to cover two different entities, the end result is that neither gets fully overseen.
Since the passage of the Inspector General Act of 1978, Congress has believed that each department and agency needs its own independent Inspector General.
This has been a longstanding bipartisan position.
Currently, there are 73 Inspectors General in every single cabinet level department and almost all independent agencies.
Even small independent agencies like the Federal Maritime Commission and the National Science Foundation have their own IGs.
If each of these agencies has its own independent Inspector General, shouldn't the CFPB?
So far, the Majority has opposed common sense changes like this to the CFPB.
During the budget debate, when Dr. Coburn and I introduced the amendment to create a CFPB specific IG, the majority would not allow it to be brought up for a vote.
The position I heard over and over was that the Majority did not want to re-litigate Dodd-Frank.
I did not hear any concerns related to the merits of my proposal.
Our amendment wasn't about re-litigating anything.
It is about creating accountability and oversight at the CFPB.
Because the CFPB is funded directly by the Federal Reserve, there are few if any Congressional oversight checks on the CFPB.
That makes an independent Inspector General even more important.
Right now, Mr. Cordray's nomination is the only tool the Senate has to create transparency and accountability within the CFPB.
As we consider this nomination, I hope we will remember that and consider the Senate's role in overseeing the CFPB and what steps we can take to make the CFPB more transparent and more accountable to the American people.
In contrast, Harkin welcomed Cordray's confirmation as long overdue:
July 16, 2013
Harkin Statement on the Confirmation of Richard Cordray to Head the Consumer Financial Protection Bureau
WASHINGTON, D.C. - Senator Tom Harkin (D-IA) today issued the following statement after the U.S. Senate confirmed Richard Cordray as the director of the Consumer Financial Protection Bureau by a vote of 66-34. Harkin has long supported the confirmation of Mr. Cordray, who was first nominated by President Obama for the position in July 2011. Senator Harkin delivered a speech on the Senate floor yesterday, urging Congressional Republicans to end their obstruction of seven executive branch nominations, including Cordray.
"For too long banking regulators paid more attention to the health of the banks that they regulate than to the financial security of consumers. That was why Congress created the Consumer Financial Protection Bureau, so that hardworking middle class families, students, veterans, and others would have a cop on the beat looking out for their best interests.
"Importantly, Mr. Cordray's confirmation is not only a step forward for middle class Iowans but is also a win for community banks and credit unions in Iowa who deserve a fair playing field alongside the big banks and non-bank financial services providers like payday lenders, debt collectors, consumer reporting agencies, and private student lenders who to date have been able to take advantage of consumers without federal oversight.
"After more than 700 days, the confirmation of Mr. Cordray finally gives American families the protections they need and deserve against unfair and deceptive consumer financial products. I welcome his long awaited confirmation and look forward to working with him so that the Bureau can fully carry out its mission."
The July 15 floor speech I've posted below makes clear that Harkin would prefer broader filibuster reform.
This level of obstructionism is unprecedented in the nominations process. Repealing laws by fiat is not, and was never intended to be, a part of the Senate's advise and consent function. And a Senator's dislike for a particular law or a particular agency certainly was not intended to prevent qualified and dedicated people from answering the President's call to serve their country.
Grassley's staff provided this comment on the filibuster deal by e-mail yesterday:
"It's rare to get every Senator in the same room. Last night's meeting helped to put all the arguments on the table - both pro and con. The question boiled down to whether the Senate would maintain minority rights, which is where historically they have been protected.
"If Majority Leader Reid had won his case, the institution of the Senate would have strayed from its constitutional role of being a deliberative body. The Senate would have ended up looking just like the House of Representatives. It may sound good to have a simple majority rule, but that's what the House does. In the Senate, the minority can't be ignored. That's what the Constitution demands.
"So an agreement was reached. The NLRB nominees that the President wanted us to confirm, but the courts have said were unconstitutionally put in office by the President, will be withdrawn and two new people will be nominated.
"And, for the time being, we avoided the destruction of the U.S. Senate as the most deliberative body in the world. The Democrats got what they wanted, now it's time to stop threatening to unilaterally change the rules every time Republicans try to exercise the responsibility of advice and consent on nominations or offer amendments to legislation as elected representative of the people of our state."
I don't know where it says in the Constitution that a minority should be able to block confirmation of presidential appointees. I agree with this morning's lead editorial in the Des Moines Register:
[T]he Senate confirmation wars will not end until the filibuster rule is changed.
The Constitution gives the Senate the power to act as a check on the chief executive's power to appoint key executive branch officials and federal judges. The Constitution says the Senate shall give its "advice and consent" on those appointments, meaning it should either approve or deny them by majority vote. Instead, Republicans have blocked Obama's appointments by using a rule that empowers 41 senators to prevent the majority from voting. [...]
Only the U.S. Senate would consider it a crisis to permit the majority to rule. Nothing in the Constitution requires a supermajority to approve confirmations, let alone routine legislation. If the founders had such a rule in mind for the Senate, they would have put one in, but they did not. Indeed, the Constitution requires a two-thirds vote in Congress for only six reasons, including ratifying treaties and removing federal officers by impeachment.
Any relevant comments are welcome in this thread.
July 15, 2013
Statement by Senator Tom Harkin on the Nominations Crisis and Nominations to the U.S. Department of Labor and the National Labor Relations Board
As Prepared for Delivery
WASHINGTON, D.C. - Senator Tom Harkin today delivered a speech on the floor of the Senate on presidential nominations, including President Obama's nominations to the National Labor Relations Board (NLRB) and for the Secretary position at the Department of Labor (DOL). The Senate HELP Committee held confirmation hearings on the five nominees to the NLRB and for Thomas Perez to serve as Secretary of Labor, and the Committee favorably reported the nominations in May 2013.
Following is the full text of his remarks, as prepared for delivery.
"I rise today to talk about the critical nominations that the Senate is currently considering. In all of the talk about these nominations - about the politics of recess appointments or the implications of changes to the Senate rules - I think one thing that has been too often missing from the discussion is a real consideration of who these nominees are and what they have done, and could do, to serve our country.
"We seem to have forgotten what we are supposed to be doing in fulfilling our duty to advise and consent to Presidential nominations. We are supposed to be looking at the qualifications of the candidates and determining if they are fit to serve. The answer with all seven of the nominees before us today is an unqualified 'yes.' And that should be the end of our task. We should confirm them all today and move on to the many other important issues facing this body.
"I want to speak in particular to the qualifications of the nominees that came through my Committee, the Committee on Health, Education, Labor and Pensions. Let's take the example of Tom Perez, our nominee for Secretary of Labor. Without question, Tom Perez has the knowledge and experience needed to guide the Department of Labor. Through his professional experiences-and especially his work as Secretary of the Maryland Department of Labor, Licensing and Regulation-he has developed strong policy expertise about the many important issues for American workers and businesses that come before the Department of Labor each day. He spearheaded major initiatives on potentially controversial issues, such as unemployment insurance reform and worker misclassification, while finding common ground between workers and businesses to build sensible, commonsense solutions.
"His outstanding work in Maryland has won him the support of the business community and worker advocates alike. To quote from the endorsement letter of the Maryland Chamber of Commerce: 'Mr. Perez proved himself to be a pragmatic public official who was willing to bring differing voices together. The Maryland Chamber had the opportunity to work with Mr. Perez on an array of issues of importance to employers in Maryland, from unemployment and workforce development to the housing and foreclosure crisis. Despite differences of opinion, Mr. Perez was always willing to allow all parties to be heard and we found him to be fair and collaborative. I believe that our experiences with him here in Maryland bode well for the nation.'
"But even beyond these stellar qualifications, Mr. Perez clearly has a passion for justice, and that is vital for anyone who hopes to make a difference at an agency like the Department of Labor.
"Tom Perez has dedicated his professional life to making sure that every American has a fair opportunity to pursue the American dream. As the Assistant Attorney General for Civil Rights at the Department of Justice, he has been a voice for the most vulnerable and reinvigorated the enforcement of some of our most critical laws. He has helped more Americans achieve the dream of home ownership though his unprecedented efforts to prevent residential lending discrimination. He has stepped up the Department's efforts to protect the employment rights of servicemembers, so that our men and women in uniform can return to their jobs and support their families after serving their county.
"As the Senate author of the Americans with Disabilities Act, I am particularly pleased with Mr. Perez's long history of strong leadership on disability rights issues. While at DOJ, he has helped ensure that people with disabilities have the choice to live in their own homes and communities- rather than only in institutional settings-and to receive supports and services to make this possible.
"Tom Perez is passionate about these issues. He is passionate about justice, and he is passionate about fairness. Like any leader whose career has involved passionate and visionary work for justice, Tom Perez's career has not been without controversy. He has had to make difficult decisions. He has faced management challenges. As with most public officials, he's been the target of accusations and mudslinging.
"I have looked carefully into Mr. Perez's background and record of service. I can assure my colleagues that Tom Perez has the strongest possible record of professional integrity, and that any allegations to the contrary are unfounded.
"I am also deeply disappointed that Republicans are suggesting that Mr. Perez has been unresponsive to requests for information by members of this body. Nothing could be further from the truth. Mr. Perez has been as open and aboveboard as he could possibly be. He has met with any member personally who requested a meeting. He appeared before the HELP Committee in a public hearing. He has answered more than 200 written questions. He bent over backward to respond to any and all concerns raised about his work at the Department of Justice.
"This Administration has also been extraordinarily accommodating to my Republican colleagues. The Administration has produced thousands of documents. They have arranged for the interview of government employees and access to transcripts of Inspector General interviews. They have provided access to Mr. Perez's personal emails. They have facilitated almost unprecedented levels of disclosure to alleviate any concerns.
"The fact is, this nominee has been more than thoroughly vetted. He has the character, integrity, expertise to lead the Department of Labor at this critical time. The President has chosen Mr. Perez to join his Cabinet, and there is absolutely no reason why the Senate should not consent to this choice.
"The same is true for the nominees to the National Labor Relations Board. These are three exceptionally well-qualified candidates. Mark Pearcehas been a Board Member since 2010 and Chairman since 2011. He was previously a union-side attorney in private practice and, before that, a career attorney at the Board. Richard Griffin is former General Counsel of the Operating Engineers Union and a former career attorney at the NLRB. Sharon Blockserved as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor and as Senior Labor and Employment Counsel for Chairman Kennedy on the HELP Committee. She is also a 10-year career veteran at the Board. I have yet to hear of a single Senator, on either side of the aisle, who questions these nominees' qualifications. Indeed, even the ranking member on the HELP Committee, Senator Alexander, conceded at their hearing that these candidates are exceptionally well-qualifiedand that he 'admired' their qualifications and their 'distinguished backgrounds.'
"These nominees have also been thoroughly vetted. They have met personally with any Senator who asked. They have answered more than a hundred written questions each. They have come before the HELP Committee in a public hearing - something that is not at all typical for NLRB nominees. They have produced every document requested and answered every question they were asked.
"If we concede that all of these nominees are exceptionally well-qualified, and thoroughly vetted, why can't they be confirmed quickly? My friend Senator Graham, when speaking about the Senate's role in the nominations process once said: 'Our job, as I see it, is not to say what we would do if we were President. Our job, as the Constitution lays out for us, is to advise and consent by a majority vote to make sure the President...is not sending over their brother-in-law or sister-in-law or unqualified people.' No one before this body today is anyone's brother-in-law or sister-in-law. And every nominee is exceptionally well-qualified. If we are actually doing our Constitutional duty-no more, no less-we would confirm all seven of these nominees today and move on to our legislative work.
"So why aren't we confirming these nominees today? Because the Republican opposition to their service has absolutely nothing to do with the nominees themselves. It has to do with laws they don't like and agencies they don't like. Republicans in the Senate are literally hijacking the nominations process to try to make changes to laws that they know they could not change through the regular order.
"Republicans don't like the National Labor Relations Act, but they know they can't flat out repeal it. What's the solution? Keep the National Labor Relations Board inoperable by refusing to confirm nominees, regardless of their qualifications. In this case, one of my Republican colleagues announced his intention to filibuster the NLRB nominees six days before their nominations were announced, openly admitting that his intention was to shut down the agency.
"In the same vein, while the Consumer Financial Protection Bureau was established by an Act of Congress and signed into law by the President, my friends on the other side of the have stated that they will not confirm anyone, let me repeat that, anyone - to the position of Director until structural changes are made to the Bureau that would effectively gut its ability to perform its basic consumer protection functions.
"Many Republicans don't like aggressive enforcement of civil rights laws. They might prefer that these laws were no longer on the books. But instead of actually attempting to repeal these laws, they are instead suggesting that Tom Perez has become unfit to hold public office simply because he did his job by enforcing these laws.
"This level of obstructionism is unprecedented in the nominations process. Repealing laws by fiat is not, and was never intended to be, a part of the Senate's advise and consent function. And a Senator's dislike for a particular law or a particular agency certainly was not intended to prevent qualified and dedicated people from answering the President's call to serve their country.
"It is the American people who suffer from these unprecedented abuses of process. The laws that these Boards and agencies enforce are important laws, designed to protect people, and when the system breaks down - or in this case, is intentionally undermined - real people are hurt.
"Let's take the example of the National Labor Relations Board. The NLRB must have a quorum of three Board Members to act. If there are fewer than three Board Members at any time, the Board cannot issue decisions and essentially must shut down. Although the Board currently has three members, Chairman Pearce's term expires on August 27, 2013, in a little over a month. At that point, the Labor Board will be unable to function unless we confirm additional members.
"Keeping the Board open is vital to employees, employers and our economy. Closing the Board will deny justice to workers because the agency is often the only place that workers can go for help when their rights are violated. Without the Board, workers cannot seek justice if they are discharged or discriminated against for talking with colleagues to improve their working conditions or for joining or assisting a labor union. The only legal avenue available to employees is to file a charge with the Board, and without it, they have no options at all. If the NLRB can't function, workers effectively don't have rights.
"Workers and businesses are similarly affected when the Department of Labor is not fully operational. The Department of Labor has been without a confirmed leader at the helm for six months. This is the agency that makes sure workers get paid the wages they deserve, helps returning veterans reenter the workforce, protects our seniors' retirement nest eggs, and ensures that new mothers can care for their babies without losing their jobs. This is the agency - perhaps more than any other - that helps families build the cornerstones of a middle class life. Without a confirmed leader at the helm, it is much more difficult for the agency to pursue innovative policies and enforcement strategies to protect people's paychecks or keep workers safe on the job.
"The important work done by Consumer Financial Protection Bureau also impacts the lives of hardworking Americans every day. The CFPB was created as part of the Dodd-Frank Act, with a simple idea in mind: that consumers deserve to have a watchdog looking out for their best interests when using financial products and services, from mortgages to credit cards to student loans to payday loans. With the creation of the CFPB, consumers now have that 'cop on the beat' looking out for their well-being, just as we have officials looking out for the health of banks.
"Mr. Cordray has carried out that mission admirably. But, if the Republicans have it their way and he is never confirmed, the CFPB will not only lose its outstanding leadership, it may also lose its ability to adequately oversee nonbank financial services providers like payday lenders, debt collectors, and private student lenders. Without this authority, consumers, community banks, and credit unions alike will all lose out. Essentially, by refusing to confirm Mr. Cordray, Republicans are using the nominations process to take the teeth out of Dodd-Frank.
That's the crux of what we're talking about here today. Nullification of laws already on the books through abuse of the Senate's power to advise and consent to nominations. It's appalling and something has to change.
"I really don't think that anyone ever envisioned this as an appropriate role for the Senate in the nominations process. When we are using the nominations process as an opportunity to effectively repeal laws on the books without proper legislative consideration, then the nominations process is hopelessly broken, and I urge Senator Reid to take appropriate steps to fix it. The nominations process has become the ultimate symbol of a much larger dysfunction that is crippling the Senate, and undermining the public trust in government.
"One does not need to read the abysmal approval ratings of Congress to know that Americans are fed up and angry with their broken government. The fact that we cannot expeditiously confirm even outstanding individuals like Richard Cordray, Richard Griffin, Sharon Block, Mark Pearce, Fred Hochberg, Tom Perez, and Regina McCarthy to critical agencies only epitomizes the obstruction that has overtaken this body. A principal cause of dysfunction is the rampant abuse of the filibuster in the United States Senate. And, it is long past time to make the Senate a more functional body, one that is better able to respond to the nation's challenges.
"As my colleagues know, I am not a 'Johnny come lately' to filibuster reform. In January 1995, when I was in the minority, I introduced legislation to reform the filibuster. Even though I was in the minority, I introduced my resolution because I saw an arms race, where each side would simply escalate the use of the filibuster and abuse procedural tools to the point where this body ceased to properly function and stopped being able to address our nation's needs. And, sadly, that is what has happened. But, as evident with the treatment of these outstanding nominees, I believe reform has never been more urgent and necessary.
"Mr. President, the minority leader has recently called the filibuster 'near sacred.' He could not be more incorrect. The notion that 60 votes are required to confirm any nominee is not in the Constitution and until recently would have been considered a ludicrous idea flying in the face of any definition of government by democracy.
"The filibuster was once a tool used only in the rarest of instances-most shamefully to block critical civil rights legislation. Across the entire 19th Century, there were only 23 filibusters. From 1917-when the Senate first adopted rules to end a filibuster-until 1969, there were fewer than 50, less than one filibuster a year. In six years as Majority Leader, Lyndon Johnson faced only one filibuster. In stark contrast, since 2007, there have been over 400 motions to end filibusters. In just one day-today-the Minority is requiring 60 votes on seven individuals. That is more filibusters than Lyndon Johnson faced in his entire tenure as Majority Leader. The fact is, for the first time in history, on an almost daily basis, the minority, and in many cases just one senator, routinely is able to, and does, use just the threat of a filibuster to stop the majority from even bringing nominees to the floor for debate.
"In today's Senate, American democracy is turned on its head: the minority rules and the majority is blocked. The majority has responsibility and accountability, but lacks the power to govern. The minority has the power, but lacks accountability and responsibility. This means that the minority can prevent confirmation of essential executive branch officials, and then turn around and blame the majority for not solving the nation's problems.
"I firmly believe that we need to restore the tradition of majority rule to the Senate. Elections should have consequences.
"No one should be fooled about what this debate is about. Republicans speak a great deal about 'minority rights.' But, the fact is that the current use of the filibuster has nothing to do with ensuring minority rights to debate, or about making sure their voices are heard. Rather, it has everything to do with obstruction, hijacking democracy, and a pure power grab designed to nullify elections in which the public has rejected Republican ideas and placed them in the minority. If Republicans want to nominate a Secretary of Labor of their choice, then they should have won the last election. But they did not win the last election. And now they have a responsibility to confirm this superbly qualified nominee so the duly elected President can effectively govern, as the American people elected him to do.
"Mr. President, at the heart of this debate is a central question-do we believe in democracy? Republicans repeatedly warn my own party about advancing reforms because Democrats will find themselves in the minority one day.
"I do not fear democracy. I do not fear majority rule. I do believe that issues of public policy should be decided at the ballot box, not by the manipulation of archaic procedural rules. The truth is, neither party should be afraid of majority rule, afraid of allowing a majority of the people's representatives to work its will. After ample protections for minority rights to debate, the majority in the Senate, whether Democratic, or Republican, or a bipartisan coalition, duly elected by the American people, should be allowed to confirm a President's nominees to critical agencies, and to be held accountable by the voters. That is what the advice and consent process is supposed to be about.
"Mr. President, let us vote-up or down-on these seven nominees today. That's what these nominees deserve. That's what the American people deserve. And that's what democracy demands."