Senator Harry Reid has hinted that he might in the next few days use the nuclear option to secure the confirmation of Richard Cordray as Director of the CFPB.
The nuclear option allows the Senate to end a filibuster by simple majority vote, although tradition requires the consent of 60 senators (out of 100) for confirmation. An opinion written by Vice President Richard Nixon in 1957 concluded that the U.S. Constitution grants the presiding officer the authority to override Senate rules in this way.
The nuclear option is also sometimes called the constitutional option. The party in power uses the term constitutional option and the party out of power will refer to the nuclear option. Change the party in power and you now have different senators using different words; but it all means the same.
There are some really good reasons why Senator Reid should go nuclear to get Mr. Cordray appointed.
1. Republicans have been warmly complimentary to Mr. Cordray and praised him for his openness and thoughtfulness. Consequently, Republicans really don't want to block Mr. Cordray's nomination. What they want is a "do-over" of the entire Dodd-Frank legislation that created the CFPB. They lost the battle over Dodd-Frank fair and square. Now, they want to gum up the works until the president and Senator Reid give up in exasperation. If Mr. Cordray's confirmation is blocked because of this single-minded ideology, then so will the next director and the next director and the next director. This denies the CFPB the effective leadership it needs.
2. Certain industries that prey on consumers are not regulated today. Dodd-Frank permits the CFPB to regulate and examine these industries but only after a Director is confirmed. These industries are out of control: debt collectors filing 15 million lawsuits this year, payday loan companies charging interest rates in excess of 1000%, credit bureaus cavalier about the accuracy of data that affects the lives of millions of consumers. The need is especially great in the debt buyer/debt collection industry where outright abuse and deception is the order of the day and tens of millions of lawsuits are filed without proper legal support. The CFPB can fix this terrible problem if given the chance. The CFPB needs the confirmation of Mr. Cordray to reform these abusive industries.
3. Consumers want the CFPB. A nationwide survey of 804 likely voters conducted on behalf of the AARP, Center for Responsible Lending and Americans for Financial Reform found that 74 percent of voters favor "having a single agency with the single mission of protecting consumers from deceptive practices by banks, financial institutions and credit card companies." Among Republicans, 68 percent of voters favor such an agency, with 43 percent favoring it strongly. It would seem the CFPB has bipartisan support.
Senator Reid is correct to approach the nuclear option to end the filibuster with caution. After all, the worm turns and what is good for the goose today is good for the gander later. The senator knows that Democrats will someday be in the minority and would like to reserve the rights of the minority.
I think there is a compromise that might be a pretty good idea to bring back -- the talking filibuster.
On March 8, Kentucky Senator Rand Paul spoke 13 hours on U.S. policy concerning drones and attracted a lot of attention to his message. That was nothing compared to some of the historic filibusters though. The record until 1957 was held by Sen. Wayne Morse of Oregon who in 1953 spoke continuously 22 hours and 26 minutes. His record was shattered by South Carolina Senator Strom Thurmond in 1957. Thurmond, then a Democrat (he later switched to the Republicans), began speaking on the Senate floor at 8:54 p.m. on August 28 to stop a civil rights bill he opposed. Thurmond did not relinquish the floor until 9:12 p.m. the following day. He held the floor for 24 hours, 18 minutes.
By the way, advice from Rand Paul -- wear comfortable shoes.