Senate shows some comity, if only briefly

[April 10, 2012]  WASHINGTON (AP) -- For a brief moment in a season of partisan rancor, the Democratic leader of the Senate and his Republican counterpart hit the pause button. As senators prepared to leave for their annual spring recess, dozens of nominees to important federal jobs were confirmed without debate or acrimony.

Majority Leader Harry Reid rattled off numbers from the Senate calendar that corresponded to individual nominees. In minutes, the nation had scores of new and reappointed ambassadors, senior Cabinet department officials and financial regulators.

"This is the way we ought to be conducting business," said Republican leader Mitch McConnell of Kentucky.

"This is the way we should legislate," agreed Reid, D-Nev.

Neither ruined the moment by stating the obvious: Partisanship had become so pervasive in the glacially moving Senate that nominees like these -- lacking even a whiff of controversy -- were held up for months. Both parties routinely blocked the other's nominees.

Nobody expects it to last, but that March 29 instant of comity is important, providing a glimpse of possible accomplishments when both parties in Congress and the White House work together.

One only has to return to Jan. 4 to see the Senate -- and perhaps the White House, depending upon your point of view -- at its worst.

That was the day President Barack Obama bypassed the Senate and used recess appointments -- allowed by the Constitution when Congress isn't in session -- to put four of his nominees in politically sensitive jobs.

Events leading up to Obama's end run date back almost a year.

Last May, 44 Senate Republicans told Obama they would block anyone as head of the new Consumer Financial Protection Bureau unless that person's power was diluted.

Senate Republicans also had been complaining about the National Labor Relations Board all through 2011. And in December, all 47 Senate Republicans signed a letter urging Obama not to fill any of three pending or upcoming vacancies on the five-member board, complaining that the agency was tilting too much in favor of unions through Obama's appointments. One of the three NLRB vacancies Obama filled Jan. 4 was a Republican.

Officials from both parties in Congress, the White House and organized labor discussed the whys of the face-off in January compared with the comity exhibited at the end of last month. They insisted on anonymity in order to discuss their thinking and their private discussions.

The key considerations that were present in January but not in March were:

-The inability of the Consumer Financial Protection Bureau and the National Labor Relations Board to function without the January appointees.

-Pressure both parties were getting from their political bases.

-The White House's refusal to pledge in advance not to do an end run around the Senate during the Christmas recess.

The Senate was so divided that the two parties couldn't even agree on whether there actually was a recess. The Senate was being gaveled into procedural sessions of less than a minute every few days, but almost all its members were away from Washington.

The four vacancies at the NLRB and for the new consumer bureau presented a dilemma to Obama.

He looked upon the consumer bureau as the crown jewel of a 2010 law overhauling how banks and other financial companies are regulated. But it couldn't issue regulations or begin policing everything from credit fees to mortgages and student loans until a director was in place. And the Supreme Court had told the NLRB it couldn't issue rules or render decisions in labor-management disputes with only two of five seats filled.

That suited pro-Republican business lobbyists just fine. They opposed the new consumer bureau as burdensome regulatory overreach and wanted to end a string of NLRB decisions in favor of unions under Obama's appointees.

Organized labor was demanding that the Democrats bring the NLRB to full strength, and a consumer-labor-liberal coalition was organizing news conferences across the country to demand that Obama get the consumer protection bureau up and running under his choice to head it, former Ohio Attorney General Richard Cordray.

Rep. Barney Frank of Massachusetts, the top Democrat on the House Financial Services Committee, said "publicly and privately I made it very clear" that the White House should use recess appointments to appoint Cordray and fill other financial regulatory vacancies.

As 2011 was ending, an AFL-CIO official said "our conversations on the Hill and with the White House took on urgency" on the labor board appointments. One of the meetings was with the president's then-chief of staff, William Daley.

"Daley said, 'We understand the problem and have people looking at it,'" the official said. "We didn't get an answer. It was a very nerve-racking Christmas."

A White House official said the administration believed Senate Republicans were trying to scuttle nominees whose terms would go beyond the next election. Then, if Republicans won the presidency, the new president could fill those posts with his own nominees.

By waiting until January, the White House bought the recess appointees another year in office. They can serve until the end of the next congressional session, which would mean December 2013. If appointed in December, their terms would have lasted only until the end of 2012.

A president cannot remove the NLRB appointees prior to expiration of their terms. The consumer agency chief serves at the pleasure of the president, so Cordray might not stay anyway under a Republican president.

A Senate Republican leadership aide said McConnell told Democrats in December he was "prepared to do a slate of nominations" if the White House agreed to two conditions: It wouldn't bypass the Senate with recess appointments during the Christmas break, and the slate would include a number of pending nominees Republicans wanted. "They never contacted us one time," the GOP official said.

Last month, just the opposite occurred. Aides to Obama, Reid and McConnell negotiated a deal. The White House pledged not to bypass the Senate during the April recess, and Senate Democrats agreed to confirm eight Republican nominees. In a matter of minutes, more than 60 nominees sailed through the Senate.

[Associated Press; By LARRY MARGASAK]

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