Advocates press for recess appointment of consumer bureau chief by Obama

By Peter Schroeder - 12/25/11 07:35 PM ET

Backers of the Consumer Financial Protection Bureau (CFPB) are urging the White House to use whatever means necessary to get a director in place, and argue that “extreme” Republican opposition has made such moves not only acceptable, but necessary.

A filibuster-proof bloc of GOP senators promised before a director was even nominated they would block any selection unless changes were made to the new agency’s structure. And they followed through with that promise earlier this month, halting the president’s nominee, Richard Cordray.

With Cordray’s pick stalled, rumblings of a recess appointment are picking up steam as a way to circumvent the Senate and get a director in place. Senate Republican Leader Mitch McConnell (Ky.) sought to derail that train of thought on the Senate’s final day of work, blocking a number of other nominees until the White House assured him it would “respect practice and precedent on recess appointments.”

But bureau backers contend that respect for precedent went out the window when the GOP announced it would block any nominee unless statutory changes were made to how the structure operates.

“I think the Republicans have made that necessary,” said Rep. Barney Frank (D-Mass.). “For them to complain about the president doing everything he can to make a recess appointment is like someone setting a fire in a crowded room and then objecting when people use the fire door.”

“If a recess appointment is what it takes … so be it. They’ve brought that on themselves,” added Travis Plunkett, legislative director for the Consumer Federation of America.

Republicans maintain that the changes they want before they will consider a nominee represent commonsense fixes to a bureau they contend lacks oversight and accountability. Those changes include bringing the bureau’s budget under the purview of congressional appropriators, replacing the director position with a multimember board, and making it easier for other regulators to veto the CFPB’s moves.

But Democrats and the White House have so far shown no interest in those suggestions, dismissing them as attempts to weaken a bureau that was broadly opposed by the same members seeking the changes.

For its part, the White House has not indicated a recess appointment is in the works for Cordray, but also has not explicitly ruled it out. When asked Wednesday about the matter, White House press secretary Jay Carney said, “We’re not relinquishing any rights here.”

He added that Cordray was a “perfect example” of a qualified nominee that was blocked by Republicans because of objections that go beyond the nominee.

“They want to water down Wall Street reforms, reforms that were put in place to help prevent the kind of financial crisis that almost tipped the global economy into a depression,” he said.

But if the White House does pursue a recess appointment, it might need to dig deep into the Constitution to find a way to pull it off. That’s because the House and Senate technically have not recessed for months. Instead, whenever a chamber takes a longer break, a handful of members still gather at the Capitol to hold pro forma sessions that last just a few minutes in order to keep it in session and, theoretically, prevent any recess appointments.

That procedural move has led to a poring over of historical documents and the fine print of the Constitution, which has yielded some interesting, but surely controversial, results.

For example, Article 2, Section 3 of the Constitution says the president has the power to actually force Congress to adjourn if the two sides cannot agree on when to close up shop, which would seemingly provide a window for a recess appointment. However, that power remains untested, as no president has actually forced an adjournment.

And the 20th Amendment of the Constitution states that Congress shall assemble at least once a year, with each session beginning at noon on Jan. 3. Given that a new session must begin at that day, logic follows that Congress must adjourn for some period of time beforehand, however brief.

In fact, Theodore Roosevelt took advantage of this quirk of the congressional calendar to push through nearly 200 nominees in a matter of seconds, when the Senate gaveled to close one session before almost immediately opening the new year’s.

The Dec. 8, 1903, story by The New York Times detailing the unprecedented move began succinctly: “Congress passed from one session to another to-day in a unique manner.”

If the president does pull out such an unorthodox maneuver, the blowback from Republicans would likely be substantial. But for backers of the CFPB, they see little choice.

“It might be necessary to take unprecedented steps even though nobody, including me, wanted them,” said Plunkett. “I don’t want to see the Senate at war over this, but I’m not sure there are that many choices left."