First, it starts with the creation of the CFPB itself. It was created as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act signed into law in July of 2010. Elizabeth Warren, hopefully soon the next democratic senator from Massachusetts, was appointed by President Obama to get the bureau up and running. There was a one year "stand-up period" that had to pass before the bureau could start acting with authority.
During that year, mid-term elections took away huge amounts of democratic congressional support and handed a chunk of that off to the Tea Party, so that when the "stand up" year ended, the political scene had completely changed. The new Congress wasn't so crazy about the idea of a bureau dedicated to financial regulation, so they decided to kill the idea in a creative way, namely, they refused to confirm any appointment to the chief bureau position so that the CFPB could get to work. Here's an article from the Washington Post:
Some quotes...
Though GOP lawmakers have praised Cordray’s qualifications for the job -- he currently serves as the CFPB’s director of enforcement -- they have pledged to prevent any candidate from being confirmed unless significant structural change are made to the bureau.Obama's response:
Obama quickly denounced the action, saying at a short news conference: “This makes no sense. Consumers across the country undertand part of the reason we got into the financial mess we did is because regulators are not doing their jobs. ... There is no reason why Mr. Cordray should not be nominated or confirmed by the Senate and should not be doing this job.Senate republicans wanted changes made to the core organization of the CFPB, as well as Congressional oversight for its funding (it currently comes from the Federal Reserve). Democrats gave those demands a big hell no and so we ended up at yet another impasse. Republicans proceeded to filibuster whether or not Mr. Cordray's confirmation should even come up for a vote for fear of his confirmation passing if a straight-up vote occurred.
So one Congress gets the ball rolling, the next Congress changes its mind and swings around the filibuster to make that happen.
The filibuster itself has an interesting story as well. Apparently, back in 1789, there used to be a mechanism to end debate in the Senate called a motion on the previous question. Senators could put out a motion on something being discussed so that they could vote on whether or not it should be voted on. Once that motion came out, discussion ended. Aaron Burr thought it was an unnecessary rule and only got used once in four years, so the Senate tossed it in 1806 and didn't put anything else in its place. So now there was no official procedure for stopping a debate.
The first big threat of a filibuster came in 1841when Henry Clay tried to end the debate over renewing the charter for the Second Bank of the United States. The threat itself backed Clay down. Senators weren't willing to allow proceedings to grind to a halt. How times have changed.
The Senate created cloture rules in 1917. Originally, cloture allowed two-thirds majority to overrule a filibuster and shut it down, but that was later changed to three-fifths. That's the magic sixty votes everyone always talks about as being the actual majority needed to get anything real done. From 1970 onward, the filibuster got used more and more and cloture votes becoming almost a common occurrence.
In 2005, the "nuclear option" or more politely called the "constitutional option" was made famous when senate democrats threatened to filibuster President Bush's judicial nominees. It works as follows. Someone filibusters while others decide to nuke it from orbit as the only way to be sure. An opponent to the filibuster calls for an immediate point of order requesting a vote and the vice-president makes a parliamentary ruling to uphold that point of order. The filibuster supporter can "appeal to the chair" (the vice president usually) and ask "Really? You're going to do this?" A filibuster opponent then calls for a vote to table that "Really." The vote is a majority rule, if the "Really" gets tabled, the filibuster is over.
Now the president can make appointments on his own when the Senate is in recess. Those appointments have to get passed by the Senate at some point, but usually the appointments are allowed to stand after the fact. President Obama did that with Mr. Cordray, but part of the senatorial uproar was because technically the Senate is still in session. They currently hold pro forma sessions every three days to keep things open, in theory preventing recess appointments through rules technicalities. Obama called bullshit on these technicalities and place Mr. Cordray, as well as filling some other positions. Obviously this president has no respect for tedious minutiae used in immature fashions... how dare he spit in the eye of the US Senate and its petty rules lawyering?
Going back to the Slate podcast, what I found interesting was a point made by Emily Bazelon. In the present, we probably respond to the Senate's behavior by applauding President Obama for side-stepping the senatorial reality TV show and getting something done. The truth is, though, that we've just traded one possible procedural abuse of power with another. Beyond that, when the only way to accomplish anything is to find holes in the rules, what does that say about our system as a whole?
This set of recess appointments run the gamut of political problems, loopholes, and senseless bureaucracy. I thought it was a great microcosm of so much of our current political paralysis and bickering. Someday, someone will challenge any action taking by Mr. Cordray as unconstitutional, as outlined by this Washington Post article:
Once that happens, we'll finally get to see the end stages of what we've witnessed recently.
Any set of rules can be broken if you completely eject their spirit and only adhere to the letter of said rules. In this case, what can be done about the filibuster and its paralyzing and demeaning hold it has on our nation's politics? The solution is pretty simple actually. A simple majority vote could change the rules eliminating the filibuster completely. The only problem is such a vote could be filibustered itself.
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