[A]n aide to Senate Minority Leader Mitch McMcConnell (R.-Ky.) said Thursday that the lawmaker stands by his vow to block any candidate. Late last month, McConnell led 44 senators in a letter to the White House calling for structural changes to the bureau. . . .
“It’s not sexist. It’s not Elizabeth Warren-specific,” McConnell spokesman Donald Stewart said. “It’s any nominee.”
A few thoughts: although no court would say so (courts bend over backwards to avoid meddling in the internal affairs of the Senate), McConnell's parliamentary maneuvering flagrantly violates the spirit of the American constitutional system. The Constitution envisions an appointments process where the Senate approves or rejects individuals selected by the president; it does not give the Senate a backdoor veto over laws and policies that have successfully passed both houses of Congress and have been signed into law by the president.
Allowing the Senate to use its advice-and-consent powers as total bar to any appointment at all essentially defeats the bicameral design of Congress, at least in regards to statutes intended to be implemented by executive appointees. Now, ordinarily, I'm all for streamlining the legislative process -- my affection for unicameralism is well-documented (<3 Nebraska). But there's something much worse than than a system that creates an extremely high bicameral bar for the creation of a new law: a system that creates an extremely high bicameral bar for the creation of a new law but also a low unicameral bar for the effective veto of that law. It's a recipe for endless bureaucratic instability, where laws written by earlier Congresses are constantly and easily unmade.
And make no mistake -- the bar is exceptionally low. That's because there are two separate factors at work here. The first is aforementioned willingness of Senators to place across-the-board holds on any nominee for a particular position. But that's exacerbated by the inane parliamentary rules of the Senate, where any Senator can place a secret hold on a nominee by threatening to mount a filibuster. And even though an individual hold can eventually be overridden (if only by churning through a week or more of invaluable legislative time), a recalcitrant minority party can permanently block any nominee so long as it claims more than 41 members.
The successful implementation of a policy legitimately passed into law should not require that the party achieving passage then hold sixty Senate seats in perpetuity. But that's basically what McConnell suggests should happen by announcing his unwillingness to accept any nominee for the CFPB.
A lot of people get up in arms when executive appointees are blocked for reasons unrelated to the qualifications of the appointee itself -- for instance, blocking the appointment for the head of the US Fish and Wildlife Service because you want the administration to authorize deepwater drilling in the Gulf of Mexico.
But the tactic being used by McConnell and the Republicans here is worse than that. It's not as maddeningly arbitrary, but it undermines our legislative scheme and is profoundly destructive to stable government.
No president in the history of the United States would accept this degree of congressional insubordination. If nothing else, it seems likely to force Obama into eventually making recess appointments. Although they don't quite provide the continuity of administration that would be ideal, recess appointments at least allow Obama to put somebody in the driver's seat of the various executive agencies.
On the other hand, the GOP isn't too keen on letting that happen, either. During the last scheduled recess, they refused to officially adjourn Congress, effectively blocking all appointments.
It's hard for me to get too angry about this intransigence, though. That's because McConnell's stated aim is so far beyond the pale, it's virtually guaranteed to break the appointments system altogether if used any more aggressively. McConnell's lapsing into cartoon villainy here -- not just blocking all nominees, but blocking all nominees to the chair of an agency charged with protecting consumers from the depredations of Wall Street. And why is he doing that? Because he wants the Democrats to install an easily-captured, easily-defunded regulatory committee in its place. It's hard to think of a more glaring example of the total failure of the appointments system. A knock-down, drag-out fight over the CFPB is probably a political winner for the Democrats, and just so happens to be the perfect platform for exposing the many abuses of the appointments system. (Abuses that have already grown so obvious that a number of congresspeople -- on both sides of the aisle -- are proposing reform.) If push really comes to shove, it's hard to see how the appointment process comes out unscathed. McConnell found a potent political bludgeon, but he needs to wield it carefully, or someone just might take it away from him.