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By Nuclear Threat or Weekend Recess

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HARRY REID
AP

Majority rule returned to the Senate floor late on October 6, 2011. Harry Reid's bold procedural pushback was not the fulsome "nuclear option" of initial reports and headlines. The Senate majority's unified, strategic and forceful stand against ever-increasing minority obstruction holds the potential, however, to be a game-changing event for the 112th Senate.

"Obviously, consequential and significant" is how Byron Dorgan (D-ND) described the majority's pushback. The event exposes how much damage Republicans inflict on the upper chamber in their single-minded compulsion to defeat Barack Obama.

The procedural fight concerned the legislative amendment process, not confirmation filibusters. In the Senate floor discussions, however, Democratic leaders particularly referenced GOP confirmation obstruction that has resulted in an understaffed national government.

Invoking the Nuclear Threat

Is the Senate majority ready to use the threat of the nuclear option, or at least the threat of a series of small nuclear blasts to frame an election year fight over Obama's blocked nominees?

Harry Reid (D-NV) proved that the majority has the will and the votes. Senate Democrats, including several members of the disbanded Gang of 14, appeared energized and united as they left for their long weekend. While Ben Nelson (D-NE) predictably defected, Dan Inouye (D-HI), Mary Landrieu (D-LA), Mark Pryor (D-AR) and Joe Lieberman (I-CT) supported Reid's bold leadership act.

The unknown fallout resulting from a full-scale nuclear strike (i.e. a simple majority vote to totally eliminate the filibuster) is a legitimate concern to all.

What is known to all is that an adequately staffed and fully functioning national government is urgently needed to address our economic crisis.

The Economic Costs of Appointment Obstruction

"Put the economy ahead of politics," pleads Timothy Geithner. Partisan obstruction is "devastating" to economic confidence and business growth. The Treasury Secretary stated to CNBC's Jim Cramer: "You have this terribly damaging political dysfunction... that leaves the world wondering whether [our] political system has the capacity to do the right thing."

The best evidence of American political dysfunction is the broken federal appointment process. Scores of high level federal offices -- executive, regulatory and judicial -- remain vacant for months and even years.

Over 90 federal trial and appellate judgeships remain empty while "judicial emergencies" are declared in jurisdictions across the nation. The Congressional Research Service reports that the sustained level of judicial vacancies has reached a historically unprecedented record. It is difficult to overstate the economic harm resulting from the regulatory and legal uncertainty.

World markets sighed in relief when Tim Geithner delayed 2011 summer plans to leave the top Treasury post. The U.S. political system could not be trusted to timely replace Geithner.

Seldom since September 1789 -- when the first Senate confirmed Alexander Hamilton as our first Treasury Secretary -- has a fully staffed government been as important to our nation's economic welfare. Never in our Republic's history has the federal appointment process been as broken.

Standard & Poors supported its downgrade of our credit with an indictment against the "effectiveness, stability and predictability"of American "political institutions." Actually, Republican appointment obstruction is very predictable. Although partisans allow a few Senate confirmation votes each month, the backlog of empty, high-level posts steadily increases.

Economic Nominees Targeted: Hobble the Government to Defeat Obama

Obama's economic policy nominees are targeted for special confirmation abuse and neglect. In efforts to defeat Obama, the GOP hobbles the government's ability to respond to the economic crisis. Vacant top offices remain at Commerce, the Federal Reserve, Housing Finance, FDIC, Consumer Financial, Treasury, OMB, DOJ Antitrust and Tax, and Currency Comptroller (to name a just few).

Obama's "jobs expert" Alan Krueger's work at the Council of Economic Advisors has been delayed. Krueger got the GOP treatment almost immediately. Within 24 hours of the nomination, Rand Paul (R-KY) demanded the Princeton professor "quit" the job he had yet to begin. Krueger has been approved by the Banking Committee; the president's top economic advisor should be immediately put to work.

The obstruction of Consumer Financial Protection Bureau nominee Richard Cordray highlights the absurdity of partisan obstruction. Months before Cordray's nomination, 44 Senate Republicans preemptively pledged to filibuster "any" CFPB director. Unable to prevent CFPB's creation under Dodd-Frank legislation, the GOP minority now undermines the new consumer agency's authority and operations. Cordray was approved the same day as Krueger by the Banking Committee; both nominees deserve an immediate up-or-down floor vote.

Fed Board Vacancies Increase Private Banks' FOMC Influence/Vote

With two seats still vacant on the Federal Reserve Board, Chair Ben Bernanke pushes even harder to boost our economy's "faltering" recovery. He does so through complicated processes of the Federal Open Market Committee (FOMC). Not only does Bernanke face "pretty ugly" criticism from various Tea Partiers, he deals with an increasing number of FOMC dissents from regional Fed presidents.

The FOMC membership includes the seven members of the Federal Reserve Board of Governors, the New York Fed Bank president, and four additional regional Fed presidents (these four FOMC seats rotate among the regional Fed district presidents). Few Americans know that five of the twelve FOMC members --- the regional Fed presidents -- are chosen de facto by large commercial banks.

The commercial banks select the regional Fed board directors, who in turn select the regional Fed presidents. Five of the twelve seats on the powerful FOMC are thus selected by commercial banks.

The two national Fed vacancies inflate the five regional Fed president's substantial influence on the (truncated ten-member) FOMC. Dissents and public arguments against Bernanke's liquidity efforts come from the regional Fed presidents.

Rep. Barney Frank's (D-MA) reform proposal to make regional Fed presidents presidential appointees (like Bernanke and the six other D.C. based Federal Reserve Governors) brought a quick response from the Wall Street Journal crowd.

The commercial bank-FOMC relationship helps explain why Fed nominee Peter Diamond was abused and blocked for over a year. Professor Diamond withdrew last June, taking his Nobel Prize back to his M.I.T office.

The obstructionist forces keeping two D.C. Fed seats vacant on the FOMC know they are increasing the voting power and influence of the regional Fed presidents -- and thus increasing the influence and voting power of commercial banks.

Harry Reid should demand immediate confirmation action for Obama's Fed nominees to give Bernanke FOMC support. Indeed, each pending economic, policy, regulatory and judicial nominee deserves an up-or-down vote.

But, if the Senate is so broken that floor votes are not possible, there is an alternative. Our Constitution's wise framers hoped for the best but planned for the worst.

Executive Energy: Recess Appointment Alternative

If the Senate is unable to render timely advice and consent, Clause 3 of Article II, Section 2 grants the Executive authority to fill federal posts by unilateral act. President Obama has only to sign recess commissions.

Alexander Hamilton explained in Federalist 67 that this instant commission option provides an "auxiliary method of appointment" required for vacancies "which it might be necessary for the public service to fill without delay."

In related Federalist 70, Hamilton famously states that "Energy in the Executive" is the "leading character in the definition of good government." Hamilton continues: "A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government."

President Obama must now exercise executive energy in appointments. The fulsome authority of recess commissioned officials lasts until the end of the Senate's next session. A commission signed today would not expire until late December 2012. The validity of judicial commissions and consecutive recess (re-recess) appointments are also well-established.

Sign Recess Commissions Any Weekend: No Three Day Minimum

Obama first needs to debunk the obstructionist myth that a Senate recess must last more than three days in order to trigger his appointment power.

In 2004, the U.S. Court of Appeals for the Eleventh Circuit explicitly stated that there is no minimum recess time needed for such appointments. History teaches that if the Senate is not sitting as a deliberative body so that its advice and consent can be timely obtained, it is in a recess sufficient for Executive appointments.

Recent congressional "pro forma sessions" are premised on purposeful misapplication of the three-day congressional adjournment rule of Article I, Section 5 to the executive's recess appointment process of Article II, Section 2.

As I explained in the National Law Journal and prior posts, the three-day congressional comity rule does not apply to -- much less restrict -- presidential appointment authority.

Nevertheless, the Tea Party House continues its mission to keep both congressional chambers in "pro forma sessions" -- withholding adjournment consent from the Senate during all breaks.

In August, 2011, an earthquake-shaken Senate met off site to keep the Tea Party-driven pro forma schedule. For the first time since the British arson of 1814, a non-ceremonial session of the U.S. Senate was conducted outside of the Capitol building -- solely to perpetuate the obstructionist scheme.

It is telling that the day after Harry Reid's October 6, 2011, procedural pushback, the Senate held a "pro forma session." The four-day Columbus holiday weekend began with another sham Senate session forced by the Republican House.

Partisan payback is harsh. It was, in fact, Harry Reid who first used fake Senate sessions in 2007, to successfully bluff George W. Bush. Ignoring bipartisan advice, Bush surrendered the executive's recess appointment authority for the remainder of his term of office.

Our 44th Chief executive should not repeat Bush's mistake. In a demonstration of genuine executive energy, Obama should sign many commissions to fill vacant federal offices with the added impetus of preserving the 45th president's appointment prerogative.

Whether Harry Reid invokes a variation of a nuclear threat to force Senate confirmation votes, or Barack Obama simply signs recess commissions over a holiday weekend, it is time to put our government to work for us.

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