Harry Reid is giving Senate Republicans one more chance before launching the nuclear option

Senator Harry Reid

Senate majority leader Harry Reid entered closed door session Monday evening with Minority leader Mitch McConnell and other Senators interested in avoiding the "nuclear option" being threatened by Reid which would likely change Senate filibuster rules solely by Democratic votes.  

Because Republicans in the Senate have caused an unprecedented number of filibusters, some of which are directed toward obstruction of President Obama's appointments to key federal agencies, Reid has hinted that the rules around Presidential appointments might be changed to allow a simple majority vote for approval.  Currently, appointments must be approved by 2/3 of the Senate, or 67 Senators.  Additionally, the rules change could also reduce the number of votes necessary to overcome a filibuster.

Reid's urgency to adopt a rules change is the result of the Republican disruption of government affairs.  There are a good number of federal agencies that cannot function properly without the appointees who are being blocked.  Republicans have publicly announced that they do not have a problem with the appointees, but they are opposing the appointments because they are trying to change the mandates of and prevent affected agencies from being effective.  To paraphrase, Republicans believe this conspiracy to obstruct government affairs is necessary in order to mold government into one that would better serve their constituents.

What has been disclosed about the meeting thus far indicates that no agreement has been reached that will prevent the nuclear option.   Senator Reid will test the stubborn determination of the Republicans in blocking President Obama's appointees by calling for a vote to approve some critical bureau appointees in Tuesday's Senate session.

Among these appointees is Richard Cordray, acting head of the Consumer Financial Protection Bureau.  If Republicans block this appointment, Reid will go ballistic and initiate the nuclear option.  It is not clear if Reid will still go nuclear if all of the previously blocked appointees are still blocked by Republicans.   See the details about the CFPB here.

During the meeting, some Republican Senators were still expecting to get the advantages they have been fighting for by offering empty compromises.  For example, they offered approving Richard Cordray provided the CFPB could be changed the way that Republicans wanted it.  

Reid has said that if the rules change is enacted, only Presidential appointments would be affected by the simple majority rule and not all Senate business.  Some are concerned that such a change could be used against Democratic  introduced legislation, such as ObamaCare if Republicans take the Senate majority after the 2014 elections.

Opinion is that the chance for the nuclear option is high, particularly because of the blockage of the appointees to the National Labor Relations board.  Republicans want to eliminate that agency and approving the appointees is the furthest thing from their minds.

Senator McCain is trying to strike up a deal with other Republicans and Senator Reid to stave off the nuclear option and is leaning toward approving the appointees.  Senator McCain was not sure what the outcome would be.

So we wait.  The one thing that seems most certain is this: if an agreement does not happen before tomorrow's vote and Republicans still block the appointments, the nuclear option will be used.

Why Republicans in Congress are Guilty of Conspiracy to Obstruct Justice

In 2010 Congress passed the Dodd-Frank Act which establishes the Consumer Financial Protection Bureau (CFPB) as the agency with enforcement power over the Financial industry.  This agency has an important role in preventing another financial disaster as created by a financial industry that enjoyed excessive liberation from regulations during the Bush administration.  The Act is now the law.  

Republicans, in their carefree joy for obstruction of all of President Obama's policies, have decided to take on the CFPB and the Dodd-Frank Act by preventing the approval of Richard Cordray as the CFPB Director.   You may ask, how is this conspiracy to obstruct justice?

We know that crimes were committed that caused the meltdown of financial markets prior to the 2008 crash.  The white collar criminals who committed those crimes are still free.  Although their criminal methods may have become dormant, there is still a public outcry that justice be done by finding and   incarcerating these criminals.  The CFPB is the agency that could make that happen, but their enforcement power is nullified without a Director.  It is the Republicans who are obstructing the actions of the CFPB.  

Congressional Republicans who have sent a letter to President Obama explaining their demands, admit that they are taking the action to reject the President's choice of a Director because they want to weaken CFPB's power.  In using their power to reject the Director, they have lied about their real intentions.  They don't disapprove of Richard Cordray.  They have stated that they will not approve of any Director until the powers of the CFPB as are legally established by the law are changed.  They have conspired to create this fraud against the CFPB and the United States with the admitted intention of obstructing it's legal authority.  This is conspiracy to obstruct and conspiracy to defraud.

The following is the legal explanation of "Conspiracy to Obstruct" (18 U.S.C. 371).

If two or more persons conspire either to commit any offense against the United States or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

The following is the legal explanation of "Conspiracy to Defraud" 

Section 371 contains both a general conspiracy prohibition and a specific obstruction conspiracy prohibition in the form of a conspiracy to defraud proscription. The elements of conspiracy to defraud the United States are: (1) an agreement of two or more individuals; (2) to defraud the United States; and (3) an overt act by one of conspirators in furtherance of the scheme.  The "fraud covered by the statute ‘reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of Government” by “deceit, craft or trickery, or at least by means that are dishonest.” The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of a governmental entity will suffice.

It is true that Congress has immunity from prosecution for acts they commit in the normal operation of their duties as legislators.  It does not protect them from committing crimes or violating existing laws.  A case could be made for this obstruction being a criminal act where the department they are obstructing is a federal agency and the actions these Republicans are taking is protecting criminals from prosecution and has done so now since 2010.  These Republicans have certainly over-stepped their normal authority and entered the realm of disobedience of law.

At the very least, every one of the 43 members of Congress who signed Mitch McConnell's conspiracy letter should be fined.  But wouldn't it be great if we could end this obstruction by putting them all in jail.  

McConnell partners with Crapo and other obstructionist Republican Senators hoping to flush CFPB down the toilet

Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau (CFPB) was created as a new government bureau in 2010 and is tasked with the important role of enforcing laws in the financial industry.  Its founding is the recommended cure for the recklessness in the financial industry that caused the financial disaster of 2008.  Its enactment is legislated through the Dodd-Frank Act.

Crapo (rear) and McConnell

It appears that the Republican obstructionists in Congress do not believe that they have demonstrated well enough their lack of support for the American consumer.  Led by Mitch McConnell and Mike Crapo (pronounced cray-po), forty-three Republican Senators have signed a letter to President Obama indicating that they will not approve Richard Cordray as the Consumer Financial Protection Bureau's Director unless their demands are met.  (Sounds like something a terrorist group might say.)  According to Senator Crapo, it is not Richard Cordray that they oppose, it is the Consumer Financial Protection Bureau (CFPB) in general.

This same scenario happened last year.  The Republicans blocked Richard Cordray so the new Bureau operated without a Director.  But the bureau has no enforcement power under the Dodd-Frank Act unless it has a Director.  So  President Obama assigned Richard Cordray as Director once again, but this time while the Senate was in recess.

A President is constitutionally entitled to make such recess appointments and many of both Parties have done so in the past.  The controversy this time is about the Republicans claim that they were really working and in session at the time of the appointment.  To prevent President Obama from making this appointment, on their way out the door for intersession vacation, Republicans indicated that they were in a "pro-forma" session.  That supposedly means that they are in session and working so they must approve Presidential appointments.  But no one was present or working in the Senate.  It was simply a tactic that Republicans used to block the President's constitutional authority.

In a similar case concerning the National Labor Relations Board appointments, the US District Court of Appeals for the District of Columbia Circuit ruled that the President can not be allowed to make a determination that the Senate is in recess because it could allow him to make recess appointments at any time.  It is my opinion that this decision proves our judicial system is fallible.  Perhaps they do not follow politics, but it should have been obvious or very easy to check that the Senate was in recess.  The mere statement of a "pro-forma" session does not make it so.  The court's decision actually gives license to another example of Republican obstruction tactics where the constitutional rights of a President can be blocked by intentionally lying about being in session.  The decision is expected to be reversed in future court appeals.

To be fair, Republicans have two major demands that would change the autonomous intent of the bureau.

First, they are demanding that the structure of the CFPB be changed.  They believe that there is too much power in the control of one person, namely the Director.  Republicans would prefer to see a board or commission in charge.  My guess is that the Republican's goal for the commission would be to staff it with the same financial experts who helped bring on the financial crises or at least staff it with people whose business interests conflict with the bureau's autonomous role.  Sort of like having gangsters run the Federal Bureau of Investigation.

Second, they want Congress to have oversight of the Bureau's budget.  They claim that the Director can tap into the Federal Reserve System to get any money he feels necessary at any time.  In actual fact however, the Director must submit a budget request to the Federal Reserve with justification and evidence of actuals from prior years.  Legislators have approved this procedure as acceptable when passing the Dodd-Frank Act.  In passing Dodd-Frank they have also approved a discretionary $200 million in Fed funds to be available if necessary, but that discretionary amount must be approved by the  Congressional appropriations process.  Perhaps Republicans don't like Dodd-Frank, but it is the law and they can't simply not abide by its rulings.

In summary, here is my assessment of the situation.  The Republicans do not disapprove of Richard Cordray, yet they are willing to reject him or anyone that the President selects so that they can accomplish their primary political goal of bending the structure of the CFPB into one that benefits their wealthy supporters instead of the American consumer.  I wouldn't expect anything less.