Senate Reps and Dems Butt Heads Over Procedure, with Consumers’ Protection at Stake - Page 3
This tactic, used by Democrats in 2007 after they gained control over the Senate to block President Bush’s nominations, is on shaky ground both legally and logistically. According to John P. Elwood, formerly of the Office of Legal Counsel, a court could decide that the Senate is violating the President’s right to make recess appointments. Some Republicans argue that a recess-appointed director would not fulfill the Dodd-Frank bill’s requirement that the CFPB be led by a “Senate-confirmed” director; Elwood says that “It is unconstitutional to draw distinctions between recess-appointed officers, because it burdens the president's recess authority.”
There are a number of logistical issues to a pro forma session as well. No one, including the senators themselves, is quite sure that a minority party can call a session. The 2007 sessions occurred when the Democrats controlled the Senate, with the blessing of the majority leader.
Even the assertion that pro forma sessions preclude a recess is in doubt. According to an article in the National Law Journal, a recess appointment can be made even in the brief time between pro forma sessions. According to the Senate Congressional Research Service, "The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment.” A 2004 US Court of Appeals ruling, Evans v. Stephens, confirmed that there is no minimum recess time.
Both sides risk political backlash
Both the Republican senators and President Obama risk losing public goodwill. The Republicans hope to paint a recess appointment as a back-door deal, an overreach by the federal government, and an infringement on personal liberties. They want to change the terms of the debate from Warren’s individual qualifications to a more broad discussion of accountability.
On the other hand, Democrats and President Obama believe that public anger with the financial industry, and desire for consumer safeguards, will reward them for strengthening the bureau. In addition, they hope that Republicans will seem obstructionist and irresponsible for refusing to confirm any of the president’s appointees, favoring big banks over constituents.
Jean Noonan of Hudson Cook LLP believes that Republicans will ultimately suffer for their position. "That is crippling the government without any cost savings," she said. "It's one thing when one party is willing to shut down the government over budgetary differences, and even that hasn't proved popular. But to refuse to fill any vacancy would be irresponsible.”