On Sunday, Nevada’s Democratic senator Harry Reid said that taking away the Senate minority’s right to filibuster would be outrageous, and even criminal. “That contempt for the rule of law and the law of rules,” Reid said, “will set a new precedent—an illegal precedent—that will always remain on the pages of Senate history.” We should make clear that by “Sunday,” we mean Sunday, May 22, 2005. Back then, Reid’s party was in the minority in the Senate, and filibustering like mad in order to block George W. Bush’s judicial nominees. The filibuster is the process by which the smaller party in the Senate can prevent the closing of debate, and thus a vote, on any Senate measure where it controls 40 votes. Republican majority leader Bill Frist had threatened to use a procedural trick dubbed the “nuclear option” to break Reid’s filibusters, and push nominees through with a simple majority vote.
This past Sunday, of course, it was Harry Reid threatening to use the nuclear option. Six years into a Democratic Senate majority, crushing the filibuster doesn’t look as “illegal” as it once did. Republicans have filibustered several nominees dear to the hearts of President Obama and organized labor. The GOP has been further emboldened by the ruling of two federal courts that the president acted unconstitutionally when he used “recess” appointments to nominate two members of the National Labor Relations Board, and to make Richard Cordray the head of the newly devised Consumer Financial Protection Bureau. (As we went to press, a third court likewise rebuked the president for his NLRB appointments.) Cordray’s nomination has been contentious because Republicans call the CFPB an outrage against constitutional government.
The stage was set for a test of political will, which, on Tuesday, Republicans lost. Reid and Arizona Republican John McCain cut a deal whereby President Obama gets all his nominees and Republicans get to keep the filibuster for the time being. The two NLRB nominees were withdrawn, but they will be replaced with ideologically identical ones guaranteed an “expedited hearing process.”
It is good that the filibuster has been saved, at least de jure, as it was good to save it back in 2005. American political life already has plenty of channels down which the torrents of democracy can rush unimpeded. The Senate has often stood as an impediment to turning the Fad of the Week into the Law of the Land. But this is a face-saving measure, meant to conceal that the Democratic majority has simply laid down the law to the Republican minority.
Republicans have been too ready to accept Democratic principle, particularly when it comes to the CFPB. “Cordray was being filibustered because we don’t like the law,” South Carolina Republican senator Lindsey Graham said. “That’s not a reason to deny someone their appointment. We were wrong.” No. Republicans were right. Outmaneuvered, but right.
The CFPB, introduced as part of the Dodd-Frank financial regulation bill, has always been a bad match with the crisis it was meant to manage. The crash of 2008 was the fault of badly overleveraged banks and households. The lender abuse that the CFPB is meant to constrain was certainly an important symptom. There were indeed banking problems crying out for more effective regulation, from “payday” lenders who targeted the poor with high-interest loans to intentionally opaque bank circulars and credit-card statements. But these were not problems of the core of the system, in the way that . . . let’s say, for example . . . the bonuses of President Obama’s Wall Street backers were. The CFPB was an alternative to more systemic reforms.
Now if that were the whole of the problem, then Graham would have a point—blocking Cordray’s nomination would be petty and irresponsible. But the problem with the CFPB is a constitutional one. The CFPB is an “independent government agency.” That has a nice ring to it, but in free countries, government agencies are not independent. They are accountable to voters. The CFPB is antidemocratic by design. Those who devised it, in the midst of a financial crisis, wanted to deck it out with special powers so that it could resist coming under the influence of financial lobbyists, as other democratic institutions so lamentably had.
The CFPB’s setup is unique, although it has some rough parallels to deposit insurance and Obamacare. It is funded by a source other than Congress—namely, the Federal Reserve. Its chairman, once nominated, cannot be removed for policy reasons. Even if you find parts of the CFPB’s mission laudable, as we do, its independent status is an invitation to abuse. Congress risks turning the Fed into the nucleus of a fourth, undemocratic and unaccountable, branch of the government. It certainly strengthens the case for not having a Federal Reserve at all.
Much as Democrats need to be reminded (regarding the filibuster) that they will not be in the majority forever, they also need to be reminded (regarding the CFPB) that there is no magical affinity between monetary policy and consumer finance that would make this innovation self-limiting. Once we clear the path to regulatory vigilantism (to use one of the less popular synonyms for “independence”), there is no principled constitutional reason why you can’t insulate from congressional oversight a Department for the Protection of Second Amendment Rights, say, or an Ombudsman for the Life of the Unborn Child.
It may seem unfair that the Senate minority, like a drunkard’s wife, should have to pay with real concessions to keep the majority from wreaking damage on the abode that both share. But that is the thing about majorities and minorities. The 2005 negotiations over the “nuclear option” ended similarly, with Republicans getting their court nominees and Democrats promising to use the filibuster only under “extraordinary circumstances.” Majorities, though, should be careful of what they wish for. By November 2006, just a year and a half after driving Democrats to the wall, Senate Republicans had been driven out of power.