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Post Partisan
Posted at 05:24 PM ET, 05/07/2012

Nullification and the Fed

How unjustified is the continuing Republican filibuster against nominees to the Federal Reserve Board? That filibuster currently has taken the form of “holds” placed by Senator David Vitter against consideration of Barack Obama’s latest two nominees, Jeremy Stein and Jerome Powell. I’d say: almost completely unjustified.

The Senate does have a legitimate role in affecting policy by confirming — or not confirming — presidential nominees. The problem is that the out-party can simply shut down the regular functioning of the government if it only takes 41 votes to block all nominees. That’s poor institutional design; it gives an incentive for the minority party to act irresponsibly.

That’s especially true of regular executive branch nominations. The general consensus until 2009 was that the president was entitled to the people he wanted in order to carry out policy, with two exceptions. The Senate sometimes considered particular people unsuitable for various reasons, and basically told the president to try again; the key escalation on that side was the Democratic resistance to the nomination of John Tower for Defense Secretary in 1989. The other exception has been that individual Senators have used holds to bargain over specific policy requests, generally things that were of particular interest to their states.

All that changes in 2009, when Republicans began demanding 60 votes for every nomination, and actively filibustered not only particular people (although there’s been plenty of that) but entire positions, in what Tom Mann calls “nullification.”  In my view, this shouldn’t be possible during times of unified government, and the Senate should change its rules in order to prevent it – for example, by reducing cloture on executive branch nominations to a simple majority.

Seats on the Federal Reserve Board are a bit different, because they last longer than the president’s term and because the Fed is supposed to be independent. Still, these are not lifetime appointments, as is the case with Article III judges. And Congress has much more potential control over monetary policy than it does over what the courts do; if Congress really doesn’t like what the Fed does, it is free to give it new rules, just as Congress is free to pass new laws that change what regular executive branch agencies do. But if Republicans don’t have the votes to do that, then they should interpret the confirmation process narrowly and confirm any reasonably qualified nominee, rather than attempting to destroy the government by filibuster.

I agree with Matt Yglesias that failure to make these nominations a top priority was perhaps the biggest mistake that Barack Obama and the Democrats made in his first year in office. And Obama deserves to be called out on it. But what Vitter and the Republicans are doing is just massively irresponsible, and it’s not at all unfair of Democrats to accuse them of putting partisan preferences ahead of a healthy economy. 

By  |  05:24 PM ET, 05/07/2012

 
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