Recess Appointments and Filibuster Reform: Joined at the Hip
Earlier this morning, roughly 12 hours after the United States Senate failed to advance any meaningful filibuster reform, a federal appeals court handed down a decision that the President violated the Constitution in making three recess appointments to the National Labor Relations Board (NLRB).
The case is now headed to the Supreme Court.
What does the filibuster have to do with this case? The short answer: a lot. But for the incessant threats of filibustering the President’s nominees to the NLRB, the President never would have made the recess appointments in the first place.
We saw the same filibuster-recess appointment two-step with Richard Cordray’s appointment as Director of the Consumer Financial Protection Bureau. In that case, Republicans voted in lockstep to block his appointment, when 53 voted for his appointment and 45 against. Under the Rules of the Senate, 45 trumps 53.
What made the Republicans’ abuse of the rules particularly egregious in Mr. Cordray’s case was not the vote itself – it was the rationale behind their filibuster. Senators had no problem with Mr. Cordray’s record, his qualifications or fitness for the job. Instead, they just didn’t like the way the agency was designed as part of Dodd-Frank, and so they thought they’d render it impotent by denying it a director.
Take Senator Orrin Hatch in his own words: “[t]his [filibuster] is not about the nominee, who appears to be a decent person and may very well be qualified. It’s about a process that is running out of control.” Or, as the Washington Post reported, “[t]hough GOP lawmakers have praised Cordray’s qualifications for the job … they have pledged to prevent any candidate from being confirmed unless significant structural change [sic] are made to the bureau.”
Thus, Republicans opposed Mr. Cordray’s nomination to nullify the part of Dodd-Frank that they failed to defeat during the legislative battle over its creation.
During this week’s showdown over Senate rules, the chamber made some incremental changes to how nominees would be handled post-cloture (i.e., after achieving 60 votes). For many nominees, opponents will no longer be able to drag their feet in running out the 30 hours of post-cloture debate. This is a good step forward.
But it still fails to require opponents to come to the Senate floor and explain themselves to the American people when they filibuster future nominees.
If the Supreme Court upholds the Court of Appeals’ decision, without serious filibuster reform, senators will be all the more emboldened to block nominations for reasons wholly unrelated to the nominees’ qualifications, and they’ll be able to do so without so much as explaining themselves to their colleagues.
The Senate has a constitutional duty to provide advice and consent. It ought be able to do so on the basis of the nominees’ record, not as a way to nullify laws and agencies that members oppose for ideological reasons.