Opinion

The Great Debate

Asserting the Senate’s power

A three-judge panel on the D.C. Circuit Court of Appeals last week unanimously ruled that President Barack Obama violated the Constitution when he made recess appointments to the National Labor Relations Board (NLRB) last year.

The court agreed with the argument outlined in an amicus brief submitted by Senate Majority Leader Mitch McConnell (R-Ky.), myself and 40 of our Republican colleagues. We argued that the Constitution does not empower the president to determine when the Senate is in recess.

The court  ruled that any other interpretation of the Constitution would give “the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

The Founders established the constitutional separation of powers for a reason. The Senate’s right to provide advice and consent is an important check on the risk of this type of presidential overreach – and one we exercised last January. Yet despite of the court’s unanimous decision, the NLRB recently announced that it intends to ignore the ruling and carry on with business as usual.

This is not an acceptable response — which is why I’ve introduced “The Advice and Consent Restoration Act” on Wednesday to correct Obama’s blatant overreach. This bill would terminate the salaries of Obama’s illegal NLRB appointees and block the board from taking any action until these appointees are legally confirmed. By doing so, this legislation — cosponsored by Senators Susan Collins (R-Maine), John Cornyn (R-Texas), Ted Cruz (R-Texas), Mike Lee (R-Utah), Tim Scott (R-S.C.), Jim Inhofe (R-Okla.) and Pat Roberts (R-Kan.) — is intended to reestablish the proper limits on the executive branch’s ability to make these kinds of appointments.

Why Congress can’t deliberate

The new Congress next year will likely inherit high-stakes standoffs over many complicated issues, from financial credibility to immigration. Our elected leaders must be able to make difficult trade-offs and craft policies that reflect the best expert knowledge.

In its current dysfunctional state, however, Congress cannot have nuanced deliberations or make knowledgeable judgments. One big reason is that it no longer has the capacity to produce unbiased public-interest information.

In the mid-1990s the mechanisms that produced the information and statistics that Congress had relied on to produce bills were virtually disassembled. Under House Speaker Newt Gingrich, many support panels that supplied information and analysis to Congress members were disbanded or curtailed.

Fighting the filibuster

President Barack Obama recently said Congress should “seize the moment” and summon a majority to push immigration reform. There is only one problem – Congress already did that.

Majorities in the House and Senate backed the DREAM Act, a bill creating a path to citizenship for young illegal immigrants brought to the United States as children, during Obama’s first term. The bill died, however, when a minority of Republicans filibustered it. So even if a new immigration majority materializes next year, Republicans can just filibuster again. Unless Erika Andiola gets her way.

The U.S. District Court for the District of Columbia is due to hear arguments  Dec. 10 in Andiola’s case – an ambitious and erudite lawsuit from Common Cause – which argues that a small band of senators have turned the filibuster into an unconstitutional assault on our democratic government.

Senate Democrats choose losers to lead

[Updated to correct date of Daschle defeat.] For the second time in less than a decade, the Senate Democrats are finding themselves with a leader facing political extinction. Tom Daschle, Harry Reid’s predecessor as the leader of the Senate Democrats, lost his own reelection race in 2002 in 2004, having become minority leader after the 2002 elections. For Democrats, this is not an unprecedented experience.  In the 1950s, back-to-back Democratic leaders also lost their seats.

Checking out the relatively short history of the Senate Leader position shows that the Democrats have been more willing to choose vulnerable members. There have been only 11 Senate Democratic leaders (the position officially came into existence in 1920), and four have lost reelection campaigns.

Republicans have, in some ways, a happier success rate. The first Republican leader, though unofficial, was Senator Henry Cabot Lodge, who died in office in 1924. Including both of those men, of the Republicans’ 17 leaders (one was only acting), only one lost his reelection campaign, James Watson of Indiana in the FDR tidal wave of 1932. In other ways, not so happy. Five of their leaders have died in office (as opposed to only one for the Democrats).

Two Independents could be the key to the next Congress

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The following is a guest post by Joshua Spivak, a lawyer and a research fellow at the Hugh L. Carey Center for Government Reform at Wagner College.

With Republicans making a serious push to take over the Senate in November, a rare but important development may prove to be the key to the post-2010 Congressional landscape: the Senate may feature two elected members not beholden to the major parties — Independent s Joseph Lieberman and Charlie Crist.

In a closely divided Senate, having two Independents could play an outsized role as powerbrokers and creators of a moderate bloc. It would also be only the second time since World War II that two Independents occupied the Senate.

Senate vote exposes Wall Street impotence

Wall Street’s diminished influence in Washington was made plain yesterday when the Senate voted to approve financial reform legislation by 59 votes to 39.

Industry lobbyists will point out the bill only just managed to scrape the required votes needed to end debate and forestall a filibuster. It fell far short of a lopsided bipartisan majority.

But the formal tally on HR 4173 (Wall Street Reform and Consumer Protection Act 2009) as amended by S 3217 (Restoring American Financial Stability Act 2010) conceals a much wider bigger majority of 63-37 for enacting far-reaching reforms.

Industry defeated on U.S. derivatives reform

Senate Democrats have beaten back an ambitious, industry-supported amendment to the derivatives portion of financial reform legislation.

If passed it would have significantly weakened the administration’s efforts to tighten regulation of over the counter derivatives markets.

Yesterday’s vote went largely along party the lines (39-59). But Senate Democrats attracted support from moderate Republicans Olympia Snowe (Maine) and Charles Grassley (Iowa), making that part of the bill effectively filibuster proof.

After clash, Senate filibuster ends in whimper

Just a few minutes after the Senate failed for a third time in as many days to reach the 60-votes needed to approve a cloture motion on the financial reform bill (failing 56-42), Senate Majority Leader Harry Reid rose to his feet and asked the chamber’s presiding officer:

“Mr President, I now ask unanimous consent the motion to proceed to S 3217 be agreed to.”

After the president officer asked for objections, and heard none, he replied “Without objection, it is so ordered,” according to the Congressional Record.

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