Why Obama's Recess Appointment of Cordray Was Smart Politics

Anyone who reads this blog knows how important I’ve long thought the CFPB is, and how hard I pushed for President Obama not to let the GOP roll him when it came to appointing a director to the board, which would unleash its full powers (and without which, it was only half-enabled). I howled when Obama let the opportunity to recess appoint Elizabeth Warren pass him by, and I urged Obama to recess-appoint his eventual nominee, Richard Cordray. I threatened that the entire “Democratic wing of the Democratic party” was watching to see whether he’d cave on Cordray, as well. And I shouted it from the rooftops when the President did not cave, but instead did the obvious and and correct thing, and stood up for American consumers and citizens by recess appointing Cordray.

But this isn’t about me, and it’s not even really about Warren or Cordray either. It’s about something which struck me as I read this article today, from the AP in the Miami Herald, about the “furious” GOP Senators, and what their “next move” may be on the topic of Obama’s end-run around their obstructionism, now that the Senate is coming back into session. This is the passage that struck me particularly:

Republicans have pledged retaliation for Obama’s recess appointments, but haven’t indicated what it might be.

“The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make,” said Sen. Charles Grassley, an Iowa Republican who is his party’s top member on the Senate Judiciary Committee.

(emphasis added)

Of course they’ve pledged retaliation. It’s what today’s GOP does, especially in an election year: throw red meat to their base. Stomp and fulminate. Whine and stick their fingers in their ears and say “la-la-la-la-la-la-I-can’t-heeeeeaaar-you.” Threaten to take their ball and go home.

What the constipated-sounding Grassley and other GOP Senators won’t do, however, is lay their cards on the table. Why? Well, as the AP piece goes on to note shortly after the above quote, “Republicans have to consider whether their actions, especially any decision to block all nominees, might play into Obama’s hands.” That may indeed be part of it. Mitch McConnell, for one, is certainly canny enough to think of such considerations. It may turn out in the end that McConnell and the rest of the Senate GOP manage to dig up  some heretofore unknown parliamentary trick from the furthest reaches of the bowels of the Big Senate Rule Book of Collegiality and Obstructionism, but I wouldn’t count on it: they’ve mined that vein pretty thoroughly already.

But the real reason Senate Republicans aren’t eager (or willing) to say exactly how they’ll “retaliate” against Obama for his having the temerity to ignore their obstructionism may be simpler than that. It may be that they just plain don’t HAVE any good options – at least, not ones which would be in any way defensible on the public stage in an election year. Think about it: the reality of McConnell’s situation is that at for at least the next year (until January, 2013), despite how the lack of progress on Democratic initiatives in the Senate makes it often appear, the Senate is actually still under Democratic control. The only way the minority GOP have been able to exercise the degree of control over the process they have up until now is by bending the Senate rules out of all proportion to their original intent (not to mention precedent) in order to essentially function as nothing more than a giant collective “no” to everything the President or the Democratic leadership of the Senate propose. McConnell isn’t actually in control of anything (except his own caucus). He can use the filibuster to stymie the will of the majority by preventing majority votes from ever taking place…but it’s important to remember that the reason the GOP DO so is because if those majority votes were held, the GOP would simply LOSE, most of the time. That’s what it means to be in the minority: you get outvoted.

So, I’ll go even further than just the truth of the suggestion that McConnell & Co. understand that trying to up the ante and continue this war might “play into Obama’s hands.” The Obama White House had to be expecting that the Senate GOP would be nearly inarticulate with spluttering rage if Obama trumped their obstructionism and recess-appointed Cordray (and the NLRB board members as well, let’s not forget). McConnell’s real-world choices for ways to respond are very, very limited indeed. What are they going to do? Pass new Senate rules which prevent such things in the future? Sorry, but to do that – to proactively get something accomplished in the Senate (as opposed to just trying to rule by negation, as McConnell & Co have been trying, with some success, it must be admitted, to do) – you have to actually be in the majority. At the very least, you have to have a good enough relationship with enough of the opposition’s members that you stand a chance of convincing enough of them on a per-issue basis to vote with you in order to pass something by majority vote. McConnell, no matter how “canny” he is, or how much he wishes it were so, can’t simply obstruct the Senate into voting FOR anything.

And over the past five years, he’s burned most of his bridges with even the moderate members of the Democratic party. One of the drawbacks of the GOP’s rule-by-negation strategy of the last five years in the Senate (since Democrats re-took control, and especially since Obama’s election) is that they’ve made themselves genuinely unlikable, both within their chamber and in general. Nobody polls congress on how they feel about other members of congress, but look no further than the abysmal-but-steady approval rating of the Senate GOP, holding fast at around 20% or even less. That’s not, by the way, to say that the Democrats in the Senate fare tremendously better – they come in at an equally-steady 32-ish percent. But it does suggest that even the traditionally-disengaged public knows where the lion’s (or perhaps the rat’s) share of the blame for congressional inaction correctly belongs, namely: squarely with the GOP. The point is: the GOP’s conscious win-at-all-costs, obstruct everything strategy hasn’t made them any friends, and has actually cost them many of the ones they thought they might have been able to count on.

So, unless they can pull some kind of additional parlor-trickery out of their…back pockets (**ahem**) this upcoming legislative session, something to make our government even more dysfunctional and rotten, McConnell and his merry band of GOP obstructionists may simply not be ABLE to do anything about President Obama’s flouting of their obstructionism, because they aren’t in the majority. This may very well show anyone who’s watching just how impotent the GOP truly are, and just how broadly disliked their policies are. It’s smart politics: let McConnell & Co. whine and stamp their feet and threaten to bring down hellfire. I think Obama knows they’re betting on a busted flush, and it may turn out that the President has finally realized there’s little downside – and in fact, considerable potential gain to be had – in calling their bluff.