President Obama's nomination of Richard Cordray, above, to lead the Consumer Financial Protection Bureau has been blocked in the Senate. "We are not going to let the president put another unelected czar in place," said Senate Minority Leader Mitch McConnell, R-Ky. (File photo / Getty Images)
When Senate Republicans filibustered President Obama's nominee to a key consumer watchdog post this month, it was the first time in history the Senate blocked an appointment in an effort to effectively shut down an agency.
It likely won't be the last. Already, Senate Republicans are threatening to hold up Obama's nominees to a number of posts overseeing elections, labor law and health care — and in each case, they aim to kill the agency outright.
Senate Republicans say refusing to confirm a nominee is the only recourse they have left after Democrats pushed through legislation without listening to GOP concerns about transparency and accountability.
Part of the problem is that Democrats have "created so many new agencies without Republican input," said Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell, R-Ky. "There's a whole bunch of new nominees or confirmable spots to have a debate over."
In blocking the president's nomination of Richard Cordray to the Consumer Financial Protection Bureau on Dec. 8, McConnell said, "We are not going to let the president put another unelected czar in place."
By law, only the bureau's director can exercise the new powers granted last year under the Dodd-Frank Wall Street Reform and Consumer Protection Act. Without a director, the bureau can't regulate payday lenders, debt collectors and credit-reporting agencies, for example.
Confirmation battles in the Senate are nothing new, but the reasoning is. Never before had the Senate explicitly blocked a nominee to shut down an agency's business, says Don Ritchie, the Senate's official historian.
The Senate has rejected nominees for all kinds of reasons, he says. "But we haven't found any precedent for making an agency powerless by not confirming anyone to run it."
"Nonsense," counters Sen. Richard Shelby, R-Ala. Both parties have routinely held up nominations for exactly that reason, he says. "The only thing different in this particular case is that it is completely transparent. ... We are right here in the open."
Still, one scholar calls it a new and disturbing trend.
"If your view is that an agency shouldn't exist, and so you're going to use your one vote against a nominee, that's fine. But using the filibuster to raise the bar to 60 [votes], not because they're awful people, but because you're trying to delegitimize an agency, that's very far over the line," says Norm Ornstein of the conservative-leaning American Enterprise Institute.
The Senate hasn't filibustered Obama's nominees to the Election Assistance Commission, but they are stuck in committee — with the same effect. The four-member commission has been two members short for a year now — leaving it short of the three members required by law to conduct business. The remaining two members are leaving this month.
Also, the executive director has left, and the general counsel is acting in his place. He, in turn, has been nominated to another federal post. If he leaves, there will be no one running the agency day-to-day.
It's a "slow death," says Gracia Hillman, a former Democratic commissioner. "One by one by one the vacancies have been languishing and languishing and languishing," she says. Republicans have "attacked that agency every way they could."
Rep. Gregg Harper, R-Miss., calls the EAC a "zombie agency" that continues to exist even after its original mission — to dispense $3.1 billion in federal election aid to states — was accomplished by 2006. Since then, its staff has grown from 21 to as high as 37. It now has 31 full-time employees and a $16.2 million annual budget.
"Only in Washington is the solution to dysfunction expansion," said Harper, the elections subcommittee chairman.
The House has passed a Harper bill to kill the EAC directly. But the Obama administration supports the agency, saying it "continues to perform crucial statutory responsibilities" like voting machine certification, disabled access to polls and national voter registration.
Obama has nominated three people to the commission, but they're stuck in a Senate committee. Those nominees, Sen. Lamar Alexander, R-Tenn., said, are "very well qualified" but they should find another government job where they would have "something to do."
"Ronald Reagan once said, ‘A government bureau is the nearest thing to eternal life we will ever see on this earth,' " Alexander said at a June hearing on the nominations. "Should we not try, using this opportunity, to prove President Reagan wrong?
Senate politics are also threatening to shut down two other prominent federal agencies:
• The five-member National Labor Relations Board, which oversees labor law, already has two vacancies. Another seat will come open in January, because Obama named Craig Becker as a recess appointment and his term ends when the Senate adjourns. Last year, the Supreme Court ruled that the NLRB needs at least three members to decide cases — so another vacancy would effectively shut it down.
Sen. Lindsay Graham, R-S.C., has pledged to block all nominations to the board, even after the NLRB dropped its complaint against Boeing for attempting to open a factory in South Carolina, a non-union state.
• The Independent Payment Advisory Board, a cost-containment panel set up by last year's health care overhaul, is supposed to be up and running by 2014 with a 15-member board to recommend Medicare cost savings for an up-or-down vote by Congress.