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ThePlumLIneGS whorunsgov plumline
Posted at 08:48 AM ET, 09/02/2011

Undermining the law in the Senate

Go ahead, right now, and read an important op-ed by Barney Frank about how Republican obstruction is preventing implementation of Dodd-Frank. Which is, you know, a law, duly passed by Congress and signed by the president of the United States.

But as Frank explains, some provisions can’t start working until the new Consumer Financial Protection Bureau has a director. And that’s not happening, because Republicans have decided to filibuster Richard Cordray, the president’s nominee, and anyone else whom Barack Obama chooses. Because, they say, they don’t like the law. And as Frank points out, this is hardly the only case; indeed, Republicans have been blocking Obama’s nominees across the board.

What Frank doesn’t say is what can be done about it. In fact, there are two remedies available. Obama could make a recess appointment; as I’ve said, it’s almost certainly legal despite Republican efforts to block any such appointments. Or the Democratic majority in the Senate could force through a rules change by simple majority vote. There are, in my view, no legal or constitutional reasons not to.

What either remedy would do is break precedent. And in normal times, I’d be hesitant to suggest such things.

But these are not normal times in the Senate. There’s nothing normal about a minority using the filibuster against essentially every single piece of legislation and every single nominee, forcing a true 60-vote Senate that never existed before January 2009.

The best justifications for the filibuster have to do with the rights of intense minorities to have an amplified voice against indifferent majorities. There’s good reason to believe that in such cases, the more democratic solution is for the minority to win. And if Republicans were using the Senate rules selectively to obstruct only those nominations and bills they most intensely opposed, I’d be willing to support them; I do believe the Senate runs best when it empowers minorities, including single senators. What’s happening, however, has nothing to do with that. It’s pure bullying by the minority, and it’s an outrageous violation of the spirit of the Constitution, of democracy and of the best traditions of the Senate. Republicans perpetrating this should be ashamed of themselves, and Barack Obama, Harry Reid and the Democrats should not hesitate from using the legal and constitutional weapons they have at their disposal to put an end to it.

By  |  08:48 AM ET, 09/02/2011

 
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