Blocking Cordray escalates the attack on majority rule

President Barack Obama came to realize that his first pick to run the new Consumer Financial Protection Bureau was never going to get an up-or-down confirmation vote in the U.S. Senate. The Republican minority was going to invoke cloture, the equivalent of what used to be called a filibuster, against his nominee, Elizabeth Warren of Massachusetts. She had been branded a radical.

So Obama turned to another nominee, Richard Cordray, the former attorney general of Ohio who had experience in consumer protection and a history of taking on financial houses, rating agencies, subprime lenders and foreclosure artists. As The New York Times noted, he won a $475 million Merrill Lynch settlement, $400 million from Marsh & McLennan and $725 million from the American International Group. And there were no skeletons in his closet. Indeed, he was described as “a good public servant” by Ohio’s junior senator, Republican Rob Portman, who nonetheless voted against allowing a confirmation vote for Cordray. Portman’s vote was not based on Cordray’s impeccable qualifications, it was based on the fact that Senate Republicans would like to rewrite the law that created the Consumer Financial Protection Bureau. But not having the votes to do that, they decided to simply block a confirmation vote — which Cordray would have won with the support of the Democratic majority and perhaps a couple of renegade Republicans.

The CFPB has been operating since July, but without a director its scope of operations is limited. Obama should use the first opportunity to make a recess appointment of Cordray.

Portman complains that, “the CFPB has vast power to limit consumer choices on everything from buying a first home, to paying for a college education. No other federal regulator has so much authority over personal economic decisions, with so little responsibility to answer to the American people and their elected representatives.” It was given that authority by law. The Republicans find it inconvenient that they don’t have the votes to change the law. That doesn’t excuse their unprecedented abuse of the filibuster and the dangerous escalation of that abuse that they would invite in 2013 if they take control of the Senate with anything less than a 60-vote margin.

Escalating abuse

Abuse of the filibuster has become more pronounced over nearly two decades as Republicans blocked various judicial nominees of President Bill Clinton, Democrats blocked many of President George W. Bush’s nominees, and Republicans, in turn, blocked many of Obama’s.

While Portman defended his vote, his Democratic colleague, Sherrod Brown, saw it differently: “In other words, to protect their Wall Street friends, they’re not going to allow a director to be in place unless you weaken this agency.”

This level of partisanship is just one more step toward a completely dysfunctional government.

It is a dangerous game that would lead almost inevitably to the day when the only way anything can get done in Washington is when one party holds the House, at least 60 seats in the Senate and the White House. And if they don’t hold the White House, they’ll need veto-proof majorities in the House and Senate.

The choice that is developing is between gridlock or a level of one-party rule that is not what the Founders envisioned when they drafted the Constitution 224 years ago. The filibuster, it should be noted, is nowhere to be found in the Constitution, which requires more than a simple majority vote only to propose an amendment of the Constitution, to override a presidential veto, to convict on impeachment or to continue a declaration that a sitting president is disabled.

The filibuster, once rare, has evolved into a partisan device used routinely to avoid an up-or-down vote on almost anything that the Senate minority knows would pass on a simple majority vote and which it opposes.

In a Jan. 10, 2010, column in The New York Times, Thomas Geoghegan, a lawyer and author, quoted Alexander Hamilton, writing in Federalist 75 about the evils of supermajority rule: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.”

And yet the supermajority vote has become a tactic that is being used enthusiastically by people who claim to be conservative. That is a disgrace to our democratic roots and a danger to the Republic.