Members of Congress can say outrageous things about virtually anybody in the country – even if they are not true. But the rules of the House prohibit members from saying rude things about each other – even when they are. In other words, we are allowed to lie with no sanction about citizens, but we are prevented from saying unpleasant truths about each other.
There are ways to get around most rules, and on one occasion I made a “Parliamentary Inquiry,” to ask the chairperson if I could call another member a “crybaby.” I was told that I could not.
Since I am no longer a member of Congress, I am freed from that constraint, and I can think of no more accurate term to apply to those Republican senators who are bitterly protesting that the Senate majority used its undoubted constitutional power to prevent the minority from keeping the president from making those appointments to judicial and executive offices to which he is constitutionally entitled.
Until recently, Republicans were using the ability to prevent the majority from acting to keep President Obama from filling three vacancies on the circuit Court of Appeals in the District of Columbia. Note that the president was not seeking to add judges to that court beyond what is statutorily established; he is simply trying to fill three vacancies, exactly as all of his predecessors had been able to do. The political point is that this is the court that hears all appeals of regulations adopted by executive agencies according to the statutory authority they have been given.
In particular, I have been distressed for the past several years because the court, with those three vacancies, has a conservative majority, and those very activist ideological conservatives have used that majority to hinder the adoption of the rules necessary to carry out the financial reform bill that we passed in 2010 (known as “Dodd-Frank”). For example, when the Commodities Futures Trading Commission under Congressional authority tried to prevent speculation in oil, one of the judges in that circuit decided this was not good economics and invalidated its rule. The rule, by the way, was hardly a radical one – it said that if you only use oil for your salads or in your car, you should not buy up enormous amounts of for the sole purpose of driving up the price and then benefiting from the shortage you have created.
Until Sen. Reid appropriately decided that a majority of the Senate would be allowed to vote to confirm judges, and since several of those judges have been confirmed by very large majorities, we now have a court that will treat these regulations appropriately, and we will be able to go forward with implementing our effort to prevent a recurrence of the financial crisis of a few years ago.
The Republicans have responded to this vindication of the president’s constitutional right to appoint judges, and to their inability in the future to engage in a tactic that will weaken financial reform by cries of outrage.
As I write this, the Republicans are in the process of angrily denouncing the Democrats for this, and threatening to withhold any cooperation whatsoever in doing the necessary business of the government going forward. Some senators have in fact asserted that while they previously had been willing to work with the Democrats on some measures that are important for the welfare of the country, they will refuse to do so because they are so angry that the president gets to appoint judges. And they have complained that the “spirit of the Senate” will be damaged going forward.
My first response is that changing this aspect of the Senate is one of the best things that has happened to us in a long time. I believe that requiring a 60-vote majority even for normal legislation is a mistake and I can testify personally that the financial reform bill was weakened in a couple of cases – not fatally – by the need to get 60 votes in the Senate.
Historically, the argument has been that the filibusters were needed to protect minorities – in fact, exactly the opposite was the case. Until the recent practice of requiring 60 votes for everything, filibusters were invoked overwhelmingly to prevent the Senate from following the House in adopting legislation to protect African-Americans in the South from police brutality, from the denial of their right to vote, and from other forms of vicious racism.
The Republicans’ response to this has been to act as if democracy has somehow been undone. They are now announcing that they are engaging in a strike, and will do everything they can to slow down the Senate. This slowdown is in addition to their announced decision that they will no longer cooperate with Democrats on major legislative matters; apparently, that is, they do not plan to help achieve policy goals that they otherwise agree with.
This last point is a particularly important one. Unfortunately, bipartisan cooperation has been too little in evidence in recent years and those cases where senators of both parties have worked together have generally been reserved for especially important matters that transcend ideological difference and are very much in the public interest. When Republican senators announce that they are so angry that the president can get judges confirmed that they will stop working on issues of this magnitude is simply a tantrum. That is, it is the reaction of crybabies.
One line of argument from some pundits is that the Democrats must deal with this by finding some way to make concessions to the Republicans’ hurt feelings. But there is an alternative: The public should tell those senators who are angry – who use extraconstitutional leverage in imposing their personal agendas through the process of “holds” and who want to preserve a District of Columbia circuit court that is biased against effective legislation – should simply get over it.
And in this case, I have more confidence in them than they appear to have in themselves.
That is, I do not think that most members of the Senate will allow their anger at an entirely legitimate exercise of majority rule to prevent them from going forward in cooperative efforts that are demonstrably in the public interest.
I do not believe they will find a sympathetic hearing among the majority of Americans when they complain that a president who has twice been elected by a majority of American people is being given the right to appoint people to important offices with the consent of a majority of the Senate.
Barney Frank is a retired congressman and the author of landmark legislation. He divides his time between Maine and Massachusetts.
– Special to the Telegram