12/06/2011 06:31 pm ET Updated Feb 05, 2012

White House, Senate Democrats Turn Up the Heat on Cordray Nomination to Head New Consumer Agency

This week, the White House and Senate Democrats launched a new campaign in the long fight over leadership for the Consumer Financial Protection Bureau (CFPB). The Senate will likely vote on Thursday, December 8 whether to hold an up-or-down vote on President Obama's nomination of former Ohio attorney general Rich Cordray. In a striking display of allegiance with big banks against the American people, Senate Republicans are poised to block the nomination. Last May, 44 Republican senators vowed to block any director of the CFPB unless the agency is substantially weakened.

Thursday's vote will set up President Obama to make a recess appointment in the coming weeks, showing the American people that he stands with them against Wall Street and its political allies. The vote also will let the president spend the rest of his reelection campaign making Republicans regret having taken a stand against American consumers. Think of it as a fast break, with Harry Reid throwing one off the backboard for Obama to jam home.

One question is whether Senate Republicans will surprise everyone and give in this week. Another is whether Obama is finally ready to suit up and run the floor.

Here's a quick recap of events for those who don't live and breathe financial reform: Congress passed a law creating the CFPB in July 2010. Many advocates urged President Obama to nominate Elizabeth Warren to head the agency immediately. Warren came up with the idea for the agency, worked tirelessly to create it, and showed through her leadership of the Congressional Oversight Panel for the TARP that she's just the kind of tough, independent, common-sense advocate that American families need. If Republicans wanted to fight over her nomination with an election coming, that was their problem.

But alas, President Obama flinched. He appointed Warren to set up the agency not to direct it, saying he wanted to avoid a lengthy confirmation fight with Republicans. Nine months later, Warren was still under consideration to head the agency when 44 Senate Republicans -- still afraid to pick a fight over Warren in public but emboldened by the lack of accountability for their Wall Street allegiance -- came up with a new demand: they would oppose any nominee to run the CFPB unless the agency was first weakened.

Let's take a moment to consider this position. These 44 Senate Republicans are fighting to weaken an agency that a democratically-elected Congress just created. They are criticizing the agency for being too independent and too powerful even though they haven't complained about banking regulators that have at least as much power and even more independence. And they are opposing oversight and accountability for banks that just crashed the economy with an array of reckless and predatory acts, putting millions out of work and out of their homes.

Not to be outdone, House Republicans also got in on the action. Like many Americans, you might think it's not quite right that a minority of senators can block a nomination that has majority support. House Republicans are trying to top that. An obscure clause in the Constitution says that each house of Congress must get permission from the other to adjourn for more than three days. So apparently for the first time in U.S. history, House Speaker John Boehner decided last May to withhold permission for the Senate to leave town. By keeping the Senate in session, he is foreclosing another avenue for President Obama to install a director of the CFPB -- an appointment when the Senate is on recess.

Now when Senate Majority Leader Harry Reid says, "We'd like to go home, please," House Speaker Boehner says, "No dice. But I'm leaving -- see you later, suckers!"

Just kidding. Most members of Congress actually go home. But once every three days, a member of each house shows up for a few minutes to bang the gavel, declare the chamber in session, and then declare it out of session again.

Let's hope they also say a prayer for the long-term viability of a country governed by such rules.

It is astounding that any elected official can get away with this nonsense, but the Republicans have been doing it for months. President Obama appears to be betting that they can't get away with it for long. In fact there are signs that Senate Republicans are feeling some heat. For example Massachusetts Senator Scott Brown recently announced that he would support Cordray's nomination. Brown is in a special position, to be sure. He happens to have a formidable opponent for his senate seat: Elizabeth Warren herself. Still, we might see other defections if the fight drags on long.

But it shouldn't. The American people have gone too long without someone in the federal government looking out for them instead of the big banks. And House Republicans do not actually have the power to block a recess appointment indefinitely. First, the current session of Congress must end by January 3 because that's when the new session will begin. (The Twentieth Amendment to the U.S. Constitution says that annual congressional sessions "shall begin at noon on the 3d day of January, unless they [Congress] by law shall appoint a different day"). When Congress adjourns the current session and begins the next one -- even if Republicans attempt to make the switch really fast -- there must be a moment in there when Congress technically is not in session.

But there's also a more direct path. House Republicans do not actually have the power to prevent a Senate recess. Although the Constitution authorizes the House to keep the Senate in session against its will (Article I , Section 5), it also says that if the two houses of Congress can't agree when to adjourn, then the president can adjourn them both (Article II, Section 3). President Obama should appoint Rich Cordray to head the CFPB during the congressional recess over the holidays. If there is no recess -- if the House continues to meddle with the president's and the Senate's constitutional authority over nominations and insists that a few members of Congress must spend their vacations occasionally flicking on and off the lights in the Capitol -- then President Obama should not hesitate to put an end to the nonsense. He should use his adjournment power to take a stand for the American people against the Wall Street's devastation of the economy, and against Republican shenanigans on Wall Street's behalf. It's time to appoint Rich Cordray to lead the CFPB.

Maybe the Republicans will realize their folly and give in on the CFPB. It's still worth telling your senators to confirm Cordray. But if they don't, then I'll ask you soon to weigh in with the president.