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Elizabeth Warren Appointment Dangles As Democrats Duck Recess Fight With Republicans

Recess Appointments

First Posted: 06/30/11 09:09 AM ET Updated: 08/30/11 06:12 AM ET

WASHINGTON -- Republicans in Congress have called out the Democrats for a fight over recess -- but there are few signs the Democrats are going to show up.

In a bid to stop President Obama from making Senate-circumventing appointments while Congress is out -- most notably Consumer Financial Protection Bureau architect Elizabeth Warren -- House Speaker John Boehner is banning his members -- and the Senate -- from going on holiday.

For one chamber to bar the other from recess is an extraordinary step that has seldom been perpetrated in the history of Congress, yet it is easily done because the Constitution requires each chamber to consent if the other will be out for more than three days.

It's not that Boehner wants to force his side and the Senate to work while they’re not on recess. He is filling the time with “pro forma sessions” where a couple of members take to the floor to punch the clock every fourth day so Congress can remain “in session.” But lawmakers don’t have to be bothered by any legislation.

Democrats have responded by saying little, and doing nothing. When Boehner launched the GOP siege on recess over the Memorial Day break, the Senate yawned and dutifully took up its own pro forma sessions. The same was expected this week and next with the House holding pro forma sessions. Spokesmen for all of the Democratic leaders told The Huffington Post Tuesday they had no plans to challenge the strategy.

However, after President Obama and Republicans declared Wednesday the Senate should keep doing work on the stalled debt talks, Senate Democrats said they were re-evaluating whether to allow Senators to go home for the Fourth.

Either way, under the normal rules of Capitol Hill, President Obama will not be able to use his own constitutional power to make recess appointments while there is a nearly unprecedented log jam of nominees waiting in the Senate. And an idle pro forma session seems the plan for the longer August break.

None of that is sitting well with progressives and judicial advocates who think the president and his party could take dramatic steps to shatter the GOP blockade and salvage their vision of government, rather than preserving their own days off.

"I think this is the Republicans throwing a temper tantrum, and they ought to be called on it," said Marge Baker, a vice president with the progressive People for the American Way.

Baker sees a simple means of drilling through the obstruction by embarrassing an opposition that has chosen to enjoy fictional days at the office at a time when most Americans are working extra hard to keep their jobs in a tough economy.

“One way to do that is stay in session and work -- force them to work -- and get something done,” Baker said, referring particularly to the Senate where there is an enormous backlog of unfinished business on the appointment front alone.

Of nearly 300 civilian appointments Obama has made this year, fewer than 100 of them have been confirmed by the Senate -- even when there is no opposition.

It’s particularly stark with judicial appointees. Baker noted that there are 15 judge nominees who have been unanimously approved by the Senate Judiciary Committee -- nine of them women or minority appointees -- yet none have made it to the floor of the Senate.

To her, that just looks like obstruction. And even worse, in her mind, is the idea that Republicans simply want to flout the law by refusing to confirm anyone to the CFPB -- unless the law is changed.

“Because Republicans don’t want an entity that protects Americans’ financial interests, they’re willing to shut down the whole agency by not confirming somebody,” said Baker. “This is an unprecedented level of obstruction, and some time you have to call the question.”

There are many ways Democrats could do that, starting with showing up for work to make a statement about the stakes.

One Democratic aide -- whose boss is not on board -- noted that Republicans, in a push to win more offshore drilling in 2008, sent more than 100 different members to the House floor during the August recess to demand that Congress work on lowering fuel prices. Then-Speaker Nancy Pelosi gave in soon there after.

Activists on the left also noticed how in 2009 the Tea Party won the nation's attention and galvanized action on the right. They think that Democrats showing up for work while the GOP is trying to prevent the president from doing his job would have a similar impact.

"There’s unprecedented obstruction on so many levels, and you have to put a face on it," said Baker. "You have to show what this is."

At least one Democrat, Massachusetts Rep. Jim McGovern, expressed willingness to go to the floor and make a case that if Congress is not actually in recess, its members should be working.

"Happy to do it," said McGovern. "I'm amazed at the reckless and just plain rude behavior by some of these Republicans toward the president.... It's just so obvious that they not only don't like him, but they hate him."

"I mean, you don't like what the president is doing, go out and campaign for, I dunno, Michele Bachmann. Get a new president," he said.

In the meantime, he suggested Congress should work more, and politic a little less, even if it was tough for people like him to give up time back home.

"I'd have to convince my wife not to hire a divorce attorney, but if they [Republicans] want to be unreasonable, I think there'll be a price to pay," McGovern said. "I wish these guys would worry a little more about jobs. No one at home is obsessed with appointments to obscure agencies or departments. What they're obsessed with is jobs and economic security."

McGovern's word will surely delight the activists, but few of his colleagues seem interested in rising to the recess fight, even if they're appalled by the Republicans' strategy.

Rep. Eliot Engel (D-N.Y.) readily lambasted the Republicans' moves as "detrimental to the way government functions and to the comity of the House." He labeled the recess maneuver "a ploy" that "only helps to make the public more cynical of what we do here."

But he also didn't think it would help the situation if Democrats showed up in the pro forma session, demanding that Congress do work.

"Once you start playing games like that though, there's no end to it," he said. "Then brilliant minds in all directions will figure out all kinds of ways and loopholes. I don't think we want to go down that road."

Rep. Louise Slaughter (D-N.Y.), the top Democrat on the Rules Committee said "oh, please!" when The Huffington Post mentioned the GOP tactic of keeping the Senate from vacation. "That's an all-powerful Speaker!"

And she couldn't really fathom the thinking. "You really have to have a great Alice in Wonderland in mentality," she said. "If you can believe 10 impossible things before breakfast, you can really understand what's happening here. Otherwise, it's a little screwy."

And while she described the current challenges facing the nation as among the most serious in history -- and the pro forma session as entirely not serious -- she also preferred to take her break and work in her district. "We are working hard when we are back home," she said.

Massachusetts Rep. Barney Frank -- a supporter of Warren -- flat out predicted a Democratic counterattack on recess would fail during the sleepy summer months.

"I predict it won't work," said Frank. "The public's not paying attention."

Activists like Baker and frustrated Democratic aides who want a showdown disagree. "If we did it, it wouldn't last more than a week," one senior Democratic staffer said. "These guys all want to get back to their districts. If we made them look like chumps, they'd have to come work, and then it would be over."

Democrats do not seem so inclined. But that still leaves another avenue to break the blockade, and it's one that many activists and legislators prefer: the president.

There are at least two highly controversial moves the commander-in-chief could make. For one, Obama could take a step that is clearly enumerated in the Constitution, but which has never been done before. That is to simply order Congress into recess. The Constitution says he can do that when the two chambers cannot agree when to break.

But the political consequences of such a big-foot move by the White House might not be helpful, said a former senior Senate strategist who requested anonymity because he still offers advice to leaders.

“That's almost looking like ‘I'm Zeus and I'm going to disband the Congress.’ If you think you've got a Tea Party problem now, that could easily be used to whip people up into a frenzy over an overreach of executive power,” the strategist said.

The other thing Obama could do is appoint Warren and others in a Senate recess that is shorter than the four days and which the House cannot stop. That has been done at least once in history, when Theodore Roosevelt made more than 160 recess appointments on Dec. 7, 1903, at exactly the moment when one session of Congress ended and the next began.

Rep. Frank, citing the historic level of GOP tactics, favored that option.

“If they're not going to allow a recess appointment, then the president has every right to make a recess appointment. In fact, he has a responsibility to make a recess appointment,” Frank told The Huffington Post. “The Constitution allows recess appointments. It doesn't say after four days.”

Frank is correct, and the four-day minimum for a recess appointment has merely become an accepted standard based on interpretation and court cases going back to the 1800s. But the Constitution specifies no time frame, and legal opinions focus on the need for the president to be able to keep important positions occupied at all times -- which the Senate has failed to accomplish in the current political environment.

Like Frank, some pro-Warren advocates put the onus for challenging the GOP on Obama, since Congressional Democrats are failing.

"The president has multiple options at his disposal -- from daring House Republicans to deny a recess at the behest of Wall Street bankers to making an appointment during a three-day recess, to using his constitutional powers to tell Congress to go home," said Adam Green, a co-founder of the 750,000-strong Progressive Change Campaign Committee.

Quick Poll

How should Democrats fight the GOP over recess?

They should go back to their districts, and tell voters how mean Republicans are.

They should go to President Obama again for help dealing with the GOP.

If Congress is "in session," they should show up for work until Republicans cry uncle.

Forget it. They've already lost on Warren and they should stay home fighting the Medicare battle.

"If the president is bold and decisive with a recess appointment of Elizabeth Warren, American consumers and voters will have his back," Green said. "If he meekly avoids fighting for Elizabeth Warren after raising $2 million from Wall Street bankers, a lot of voters will be asking questions -- which would be unfortunate for the president and all Democrats up in 2012."

While the actions Green and Frank are advising are nearly unprecedented, there's a case to be made for them. For one thing, Boehner's gambit of denying the Senate recess has only happened a few times in history, and congressional aides could only document two: in 1949 and 1882. Senate Majority Leader Harry Reid blocked recess late in the Bush administration, but that was not done by the other chamber, as it is now.

Also, Republicans are throwing up historic roadblocks against a president who has been relatively restrained in his recess appointments, tallying 28 in his first 30 months in office.

In order to keep pace with President Clinton, who made 139 recess appointments in eight years, Obama would have to make 17 or 18 by the end of the August recess. To keep pace with his predecessor, President George W. Bush, who made 171 recess appointments, Obama would have to more than double his rate, and make 29 by the end of the summer break.

The progressive Campaign for America's Future also wants Obama to take the lead, especially on Warren.

"The president should move ahead and appoint Elizabeth Warren to head the CFPB," said CAF spokeswoman Liz Rose. "If he can do it as a recess appointment, fine. If he can't, he should go ahead and nominate her and let's have this fight over the Warren nomination in public. Let's shine a spotlight on this battle. It is the people versus the bankers."

But that runs into the original problem of the Senate failing to move nominations. Some more cynical Democrats have suggested over the last few months that neither the administration nor the Senate actually wants to move on Warren because such a large amount of Democratic fundraising comes from Wall Street bankers. A number of influential Democrats would also prefer that Warren challenge Massachusetts Republican Sen. Scott Brown next year instead of heading the consumer agency.

The White House has heard over and over from Democrats on the Hill and liberal activists that it's up to the president to take a stronger stance -- even when House lawmakers won't themselves.

A White House spokesperson did not respond to requests for comment.

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