Earlier this week, President Obama officially appointed Richard Cordray as Director of Consumer Financial Protection Bureau (CFPB), a relatively new agency designed to protect against the massive loophole-mining and financial excesses that led to the recession. Despite his experience and credentials, Republicans immediately called foul because the President pushed through what’s called a “recess appointment,” bypassing the usual Senate confirmation process. Here’s a brief overview of what happened and why.
Back in June when the CFPB first got up and running, President Obama named former Ohio Attorney General Richard Cordray as his pick to be the nation’s top consumer watchdog for this new regulatory agency. He had plenty of experience in the field fighting as a consumer advocate, but Senate Republicans vowed to block his appointment at every turn out of principle. It wasn’t anything particular against Cordray, who was well-qualified for the job; the Senate majority believed the post shouldn’t exist in the first place and CFPB should instead be run by a board of directors. Because the Senate is constitutionally granted the power to confirm Presidential appointments, the CFPB has been running without an agency head ever since.
Whether it’s reasonable for a regulatory agency to have any power while run by committee is a debate for a different post. The result, however, is that the Senate has held up Cordray’s confirmation for the past six months.
There’s a loophole to the Senate confirmation process, however; the President is able to unilaterally make appointments not enumerated in the Constitution if Congress is not in session. Over the years, Presidents have made many such appointments, some with more fanfare than others. For the most part, it is a legitimate practice for filling vacancies when the Senate is not in session to confirm the nominees.
The problem is that although the Senate is not technically in session, they’re not actually in recess, either. The Senate majority has been calling periodic “pro forma” sessions every four days so that they’re not officially considered to be in recess. (Apparently, the rule, which states that if Congress doesn’t meet for more than three days, then it’s considered recessed, was a decision made by the Justice Department during the Clinton Administration.) This is a trick that the Republican majority started back in the ’90s precisely to prevent the President from making non-session appointments, and Democrats and Republicans alike have embraced it since then.
This is an interesting point of debate that will most likely be subject to a legal challenge. Both sides here are exercising the extent of the loopholes the system provides. Can a sporadic meeting of a smattering of Senators really be called “session”? Can the President make a non-session appointment if there’s a regular lack of a quorum? Time will tell. In the meantime, we finally have a head for the CFPB to enforce some much-needed reforms to the financial sector.