By Mark Gabrish Conlan • for East County Magazine, www.eastcountymagazine.org
Just four days after President Obama was sworn in for his second term, a Right-wing federal appeals judge gave the Republican Senate minority new powers to take over the country and shoot down whole government departments whose missions or policies displease them. Judge David Sentelle, one of the most powerful people you’ve never heard of, and two of his colleagues on the U.S. Court of Appeals for the D.C. Circuit issued a sweeping ruling on January 25 that effectively ended the ability of a President to make so-called “recess appointments” to government departments that require Senate confirmation.
Previously, both Republican and Democratic Presidents had made recess appointments whenever the Senate stopped meeting — usually so its members could go home for the holidays or, as election day drew closer, they could campaign. Now, according to Sentelle’s opinion, the only “recess” that ever allows a recess appointment to take place is the one at the end of every even-numbered year in which the old Congress ceases to exist while waiting for the newly elected Congress to take its place.
“An interpretation of ‘the recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice and consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases,” Sentelle wrote. But his opinion will give a minority of the Senate the power to have free rein to sabotage any government agency or program they don’t like. The Senate Republicans have repeatedly done exactly that, and have made it clear they intend to keep doing it.
Sentelle’s ruling came in a case involving the National Labor Relations Board (NLRB), the federal government agency charged with enforcing workers’ rights to organize into labor unions and bargain collectively with their employers. The NLRB is supposed to be run by a board of five people, but in 2011 the NLRB stopped being able to operate because it was down to just two board members. Obama appointed three people to fill the vacancies and sent their names to the Senate for confirmation. But the Republican minority, led by Mitch McConnell (R-Kentucky), didn’t vote to confirm them. It didn’t vote to deny them confirmation, either. It didn’t allow the Senate to vote on them at all.
So Obama, in order to give working people the kind of voice in their own affairs the NLRB has promised them since it was created in 1935, used recess appointments to install his three NLRB appointees while Congress took its usual end-of-year break in January 2012. At the same time he appointed Richard Cordray to be the first director of the newly created Consumer Financial Protection Bureau (CFPB), where he was supposed to start issuing regulations to prevent another financial-system meltdown like the one that almost destroyed the U.S. economy in late 2008.
Republicans were furious. Not that they haven’t used the recess appointment power themselves; George W. Bush used it to make John Bolton the U.S. Ambassador to the United Nations even though Bolton had famously said that the U.N, could function as well or better with the top two floors of its building blown off. But the very existence of the CFPB and the NLRB runs smack into Republicans’ ideological priorities, particularly their determination to “unleash the private sector” and free it from any regulations to protect the lives and livelihoods of either their workers or their customers. During the 2012 Presidential campaign, virtually all the Republican Presidential contenders — including the eventual nominee, Mitt Romney, who made his multi-millions in the financial system it was supposed to regulate — pledged to get rid of the CFPB and the law that created it.
Well, according to Judge Sentelle, if the Republican Senate minority doesn’t like what a government agency is supposed to do, they don’t have to repeal the law that created it. All they have to do is categorically refuse to confirm anybody to run it. In 2011 the Republicans in the Senate said they would not allow a vote on any Obama appointee to run the CFPB until the law was changed so that, instead of a single director, the CFPB would be run by a bipartisan board of five. They also want the CFPB to be funded, not by the Federal Reserve, but by Congress — so even if it tries to do anything, the Republican majority in the House of Representatives can attack it by cutting its budget. And they want to split the power to regulate banks and financial companies by making it easier for other, more compliant government agencies to challenge CFPB regulations.
What about the Senate Democrats? They had the power to end the capability of the Republican minority to obstruct virtually every function of government — and they wimped out. The reason the Republicans can do this is the virtual filibuster, which actually has only existed since the mid-1970’s. Until then, any individual Senator or group of Senators who wanted to filibuster actually had to go the whole nine yards like James Stewart in Mr. Smith Goes to Washington. They had to hold the floor and talk, tying up the Senate and thereby bringing the entire business of the U.S. Congress to a standstill. Sometimes — as in Strom Thurmond’s record-breaking filibuster against civil rights legislation in 1956 — the filibuster backfired big-time, as Thurmond gave the country a chance to hear the Southern argument for racial segregation and learn just how unjust and ludicrous it was.
But in the first post-Watergate Congress in 1975, Senate reformers, thinking this would actually be better, instituted the virtual filibuster. If you wanted to block action on a bill, you didn’t have to take the floor and say anything about it. All you had to do was check a box on a piece of paper indicating that you intended to debate the bill — and presto! The bill was dead unless at least 60 Senators voted to end the “debate” that wasn’t in fact taking place. At first Senators used this power relatively sparingly, but the pace of virtual filibustering has picked up so much that by now it takes a 60-vote supermajority of the Senate to do almost anything.
The Democrats had the chance to get rid of the virtual filibuster on January 22, the magic day once every year when both houses of Congress adopt their own rules. Any other time, a proposed change in the Senate’s rules — including the filibuster — can itself be filibustered, and for a filibuster on a Senate rule change the supermajority needed for what’s called “cloture,” ending the debate and allowing the Senate to vote, rises from three-fifths (60 Senators) to two-thirds (67). But on the date the Senate adopts its rules, they can be changed by a simple majority.
On January 22, 2012 there were more than 50 U.S. Senate Democrats ready to abandon the virtual filibuster and go back to the requirement that in order to hold up a bill to “debate” it, you actually had to debate it. But the Democrats’ own leader, Harry Reid, wouldn’t allow that proposal to be voted on. Instead he allowed a series of window-dressing “reforms” that potentially cut down the number of filibusters but still allowed a determined minority to thwart the will of the Senate majority at almost every turn through the virtual filibuster.
And three days after Harry Reid wimped out on getting rid of the filibuster, Judge Sentelle handed the Republican Senate minority a beautifully gift-wrapped, embossed package of a court decision that basically put them in charge of the entire government. Don’t think workers should have the right to form unions and bargain collectively? Just don’t confirm anybody to the National Labor Relations Board so the government can’t enforce those rights. Don’t think customers of banks, investment companies and stock brokerages should have any legal protection against fraud or other abuses? Just don’t confirm anybody to the new government agency that was supposed to stand up for consumers against the mega-banks that brought down the economy in 2008.
Indeed, on February 43 Republican Senators served notice to Obama that they’re going to continue using the virtual filibuster to have the law creating the CFPB — which a lot of consumer advocates said was already too weak — effectively rendered null and void because they’re not going to allow anybody to be appointed to run it. “Far too much power is vested in the sole CFPB director without any meaningful checks and balances,” said the letter, signed by Mitch McConnell and enough Republican colleagues to keep any appointee for CFPB director from getting his or her confirmation voted on — either way. Instead of doing what legislators are supposed to do when a law exists that they think is bad — either repeal it or fix it — the Republicans in the Senate are going to nullify the law by fiat. And the Senate Democrats were either too stupid or too naïve to seize their one chance to take away the power of the Republicans to block their every move.
What makes it even more ironic is that the Court of Appeals’ decision went down the way it did because in addition to using the virtual filibuster to block a Democratic President from making appointments to government agencies and a Democratic Senate majority to confirm them, the Senate Republicans have also used it to keep Obama and the Democrats from adding more federal judges to the district and appeals courts. According to the Alliance for Justice (www.afj.org), “The Senate has confirmed far fewer judicial nominees at [the end] of President Obama’s first term than it had for his two predecessors in office [Democrat Bill Clinton and Republican George W. Bush], and the percentage of confirmed district court nominees is at historically low levels.”
The number of vacant judicial seats in both federal appeals courts and district courts — the lowest level of the federal judiciary, comparable to a state superior court — has risen from 55 when Obama first took office in 2009 to 83 today, an increase of over 50 percent. By contrast, federal court vacancies declined during the first terms of both Clinton (by 65 percent) and Bush II (34 percent). “Today, nearly one out of every 11 federal judgeships is vacant,” writes the Alliance for Justice, “ … mostly due to Republican Senators’ abuse of Senate procedure to obstruct even non-controversial nominees. … From the beginning of Barack Obama’s Presidency, Republican Senators have used existing Senate rules to obstruct judicial nominees in an unprecedented manner.” Thanks largely to Republican Senators’ use of the virtual filibuster and the 60-vote cloture requirement, Obama got only 74 percent of his judicial nominees approved during his first term, versus George W. Bush’s 96 percent.
The result has not only been a plethora of so-called “judicial emergencies” — courts in which justice is being denied because there isn’t a judge to administer it — but a court system that tilts more and more Republican. Indeed, David Sentelle is a perfect example of the sort of Right-wing Republican who now dominates the federal judiciary. He was appointed by Ronald Reagan on the recommendation of the late Senator Jesse Helms (R-North Carolina), an arch-reactionary who became a national figure due to his opposition to civil rights, Queer rights, AIDS funding and the National Endowment for the Arts.
In the 1990’s it was Sentelle who appointed all the special prosecutors investigating President Clinton and his administration. If you lived through the 1990’s and were appalled by the sight of Clinton being impeached and threatened with removal for office over a consensual sexual affair, don’t blame Kenneth Starr, the hanging-judge prosecutor who was appointed to investigate a failed real-estate deal and instead caught Clinton lying about his sex life. Blame David Sentelle, the man who fired the previous special prosecutor, Lawrence Walsh, and picked Starr to replace him.
The Republicans in Congress have made it clear that they will permit no government they do not control. They hamstrung President Clinton through the special-prosecutor law as well as through their triumph in the 1994 elections and their ability to hold a majority in Congress. They’ve hamstrung President Obama even without a majority in both houses of Congress, partly through the insane brinksmanship of a Tea Party-dominated House majority that continually threatens to destroy America’s credit rating if they don’t get massive cuts in social-welfare spending; partly through the virtual filibuster, which has converted the Senate into a minority-run institution; and partly through their Senate minority’s ability to sabotage the judicial system and agencies like the CFPC and NLRB simply by refusing to confirm anybody to run them.
The American people actually voted for Democrats in 2012. Not only did they re-elect Obama and increase the Democratic Senate majority by two seats, but one million more people voted for Democrats than Republicans to represent them in the House. In any other democracy, that would mean the House would have a Democratic majority. But thanks to the willful procedural maneuvering of the Republican Party, which controls the House through corrupt redistricting processes at the state level and runs the Senate through the virtual filibuster, Americans are going to get Republican government whether they want it or not.