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December 12, 2011 8:40 AM A radical embrace of nullification

By Steve Benen

On “Fox News Sunday” yesterday, Chris Wallace asked Senate Minority Leader Mitch McConnell (R-Ky.) about Republicans refusing to allow lawmakers to vote on Richard Cordray’s nomination to head the Consumer Financial Protection Bureau. The GOP Senate leader wasn’t the least bit embarrassed about his party’s abuses.

“[W]hat we are saying to the president is: join with us and reform this agency, make it accountable to someone, the people elected the Congress for its funding and for its oversight, and then send up somebody and we’ll be happy to confirm them. There’s nothing wrong with Mr. Cordray personally. This is about an unaccountable, unelected czar. And we’re simply not going to appoint him, or confirm him, or anybody else to this agency that shouldn’t exist in its current form.”

Note, McConnell said the bureau “shouldn’t” exist. That it already exists is, to him, irrelevant.

Around the same time, on “Meet the Press,” David Gregory asked Sen. Lindsey Graham (R-S.C.) about the same controversy.

“So this consumer bureau that [Democrats] want to pass is under the Federal Reserve. No appropriation oversight, no board. It is something out of the Stalinist era. The reason Republicans don’t want to vote for it is we want a board, not one person, making all the regulatory decisions, and there’s no oversight under this person. He gets a check from the Federal Reserve. We want him under the Congress so we can oversee the overseer.”

All of this may seem rather routine — Republicans have been making the argument for a while — but it’s worth pausing to appreciate just how radical a position this really is.

Graham, who really ought to know a little more about current events, characterized the Democratic position as eyeing an consumer-protection agency “they want to pass.” Here’s the thing the South Carolinian may have missed: the agency already passed. It’s part of a little something called “existing federal law.” The Consumer Financial Protection Bureau was signed into law in 2010, after passing the Senate with bipartisan support as part of the larger Wall Street reform package.

Graham isn’t quite sharp enough to even understand the basics of the argument. He insisted yesterday Republicans “don’t want to vote for it.” But no one is asking them to. “It” already exists, whether the GOP likes it or not. It’s now the Senate’s job to consider nominations for the board’s leadership.

Which leads us to the larger problem: what Republicans are embracing in this case is, in effect, nullification.

Congress passed a bill that was signed into law by the president. Last week, a Senate minority — not a majority, a minority — decided it simply won’t allow that law that’s already on the books to be executed.

In case this isn’t obvious, the American system of government isn’t supposed to work this way. Indeed, it’s pretty much the antithesis of our constitutional process.

Republicans may not care about this, but you should.

The GOP minority isn’t even questioning Cordray’s qualifications. Rather, Republicans are saying they refuse to allow existing law to function until Democrats meet the GOP’s demands and does Wall Street’s bidding. When the Senate minority is satisfied, they’ll consider allowing the law to function — if they feel like it.

As a matter of legal and institutional principles, Americans haven’t seen tactics like these since the Civil War. It led James Fallows to explain yesterday, “This strategy depends absolutely for its success on its not being called what it is: Constitutional radicalism, or nullification.” Jonathan Cohn made the same point last week, and Thomas Mann referenced a “modern-day form of nullification” in July.

Political tactics and schemes come and go, as politicians and parties win and lose. But what Republicans are doing now does real damage to the American system of government. It is, by any meaningful definition, a serious and important political scandal.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.

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  • Ron Byers on December 12, 2011 8:47 AM:

    I didn't watch the morning shows, but I will bet dollars to donuts (not 10,000 of either) that David, I never saw a Republican ass I wouldn't kiss,Gregory failed to point out that the law was already passed and the Republicans are embracing nullification.

    And know we know why no Democrats were invited to join David yesterday morning.

  • c u n d gulag on December 12, 2011 8:50 AM:

    Let's face some facts - Lincoln was wrong.

    Fighting and winning a war to keep the Union together was like fighting to reunite a hard working spouse with his/her psychotically abusive mate.
    And who has suffered?
    Every generation since the day the Southern psychopaths decided to paint their ignominious and total defeat as some fight for a noble cause.

    We need a modern day Sherman!

    And I'd like to see him start his "Maximum Devastation March" in Hayseed Graham's home state.
    And finish it there as well - just in case something was left undestroyed in the first go-round.

  • Elizabelle on December 12, 2011 8:50 AM:

    Thank you, Steve.

    Nullification and abuse of the filibuster need to be discussed at our dinner tables and around water coolers/the copier, whatever. Both are poisoning our politics and are not Constitutional. They're an abuse of the political system.

    Both are being used to benefit plutocrat donors over Americans, who need a Consumer Financial Protection Bureau and a functioning judiciary.

  • Ghost Rider on December 12, 2011 8:52 AM:

    exactly, since none of the "left-wing" media bothers to inform their viewers/readers that this is what's going on, it will continue until they get their way..........or the USA sinks under the weight of all their BS

  • jpeckjr on December 12, 2011 8:52 AM:

    At least one GOP presidential candidate (I think it's Perry, but could be Gingrich -- someone will correct me) has suggested a more radical nullification program -- allowing state legislatures to reject Federal statutes. The candidate even used the word "nullification."

    During the GWBush Administration, I would not have been surprised at all if he had "suspended the Constitution" for national security reasons. There is a streak of authoritarianism in the Republican mindset these days that borders on mental illness.

  • SteveT on December 12, 2011 9:00 AM:

    jpeckjr said:
    There is a streak of authoritarianism in the Republican mindset these days that borders on mental illness.

    It is like something out of the Stalinist era, wouldn't you say?

  • Danp on December 12, 2011 9:00 AM:

    I wish Obama had made this argument last night on 60 minutes. Then again, I wish Steve Kroft had asked Obama why none of his ideas get through Congress, instead of just are you too nice or too mean? Obama needs to do more than argue that he's in the middle of the spectrum.

  • SteveT on December 12, 2011 9:05 AM:

    And to all the Senate Democrats who wanted to preserve the "institution" of the Senate rather than change the rules that the Republicans were abusing:

    How's that working out for the Senate and for the country?

    President Obama isn't the only one who won't recognize that Lucy will always yank the football away.

  • Josef K on December 12, 2011 9:12 AM:

    Political tactics and schemes come and go, as politicians and parties win and lose. But what Republicans are doing now does real damage to the American system of government. It is, by any meaningful definition, a serious and important political scandal.

    Thanks in no small measure to the second Bush Administration, I fear the American public is both consciously scandaled-out and subconsciously no longer trust the federal government - or indeed, government at any level - will actually follow the laws they pass. Witness the ongoing enabling of Wall Street and major banks, the counterproductive reactions to the citizens' 'Occupations', and now a major political party engaging in very public sabotage of their own government.

    Guess the Republicans can break out the "Mission Accomplished" banner again. Wonder if they'll feel as satisfied when they're marched to meet Dr. Guillotine.

  • SadOldVet on December 12, 2011 9:12 AM:

    With all of the money that Wall Street provides to buy repuknican and dumbocrap senators, why would it be considered radical that Wall Street is provided a veto over the implementation of any laws that they do not like?

  • Jim Pharo on December 12, 2011 9:12 AM:

    The GOP has always considered the rule of law something for the little people, not themselves. Just ask Ollie North or Dick Nixon. Just because something is the law doesn't mean it applies to the noble worthies of the GOP. They're just that special.

  • Hedda Peraz on December 12, 2011 9:17 AM:

    We in the Republican Party hear that a bunch of shiftless radicals are meeting in Philadelphia, passing around some sort of "declaration" that they want us to sign. Not gonna happen, until we can make our own improvements to it.

  • T2 on December 12, 2011 9:25 AM:

    this period will be remembered for the end of a "majority rules" type democracy. To the Republicans, they simply want what they want...end of story. There should be no votes, there should be no "majority rules", simply agree to their demands and move forward. Sounds like a dictatorship by committee, doesn't it.

  • square1 on December 12, 2011 9:25 AM:

    Good Lord, more whining.

    One would think that in the age of the Occupy movement the Democrats would celebrate the good fortune of having their political opponents do clearly embrace the banks in opposition to consumers. Sadly, I would be shocked if Democrats can punish Graham or McConnell for this position.

    Graham isn’t quite sharp enough to even understand the basics of the argument.

    I'm going to give Benen the benefit of the doubt and assume that he isn't stupid enough to actually believe that Graham doesn't "understand" the situation. But I really wish he would stop with his asinine rhetorical trademark that Republicans are confused.

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  • kevo on December 12, 2011 9:39 AM:

    McConnell and his crew has been holding the upper chamber of our Congress hostage with a continual filibuster, and now he and his cohorts are lawlessly thumbing their noses at every living being while the MSM sits on its thumbs and wonders who said what about whom in the most irrelevant fashion known to news gatherers of any kind, and at any time! -Kevo

  • Dan Tomkinson on December 12, 2011 9:39 AM:

    It might be worth while to point out the hypocrisy of their position in re the presence of this agency under the umbrella of the Federal reserve, characterizing this as lacking oversight.

    Remember that it was a republican congress that wanted to place Fannie Mae and Freddie MAC under the Federal reserve after the book keeping scandal unfolded in 2003-2004.

    At that time, they considered the federal Reserve to be strong oversight. How has this position changed from the perspective of the GoP?

  • Peter C on December 12, 2011 9:40 AM:

    "OBSTRUCTION OF JUSTICE"

    It's time we accuse them of committing a CRIME.

    They don't have the power or authority to block a law that they can't repeal. If they can, then they've put themselves ABOVE THE LAW!

    We can't let the 1% put themselves above the law.

    "You are blocking a law that you don't like but can't repeal. Shouldn't you FOLLOW AND OBEY THE LAW until you can? WHY DO YOU FELL YOU ARE ABOVE THE LAW?????" - ask the question!

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  • bigtuna on December 12, 2011 9:40 AM:

    To Echo what Ron Byers said ... I cannot watch these shows. Did the interviewer ask the obvious follow up? Ie, what the f*** are you talking about? This agency was created - by law. Your body never votes on nominees for agencies yet to be ... you are voting for a nominee to run agency created by law, that reports to congress, that will have a budget that must be approved by - Congress... etc ...

    And, sorry, Steve, but square1 makes a good point. Look, we all know the republicans are not "confused" or "don't understand", etc. You use this rhetorical gambit far too much. Please just make your insightful comments directly. The little cutsie phrasing tends to grate on one's nerves ....

  • c u n d gulag on December 12, 2011 10:00 AM:

    Hey CRAPTCHA!

    WTF are we paying you for?

  • Crusty the Clown on December 12, 2011 10:03 AM:

    I don't see what the problem is. The Republic Party has a whole stable of fine fellows - Prick Erry, Willard Zombie, and Gnewt Gingrinch-that-stole-Christmas, not to mention Rick-with-the-unmentionable-last-name. What could possibly go wrong?

    - Crusty

  • Marko on December 12, 2011 10:08 AM:

    This is what they mean by making government so small they can drown it in the bathtub.

  • Grumpy on December 12, 2011 10:10 AM:

    "This is about an unaccountable, unelected czar."

    Czar = appointee confirmed by the Senate.

    Is McConnell demanding that mid-level bureaucrats be subject to election?

  • bob h on December 12, 2011 10:16 AM:

    Why not provoke the constitutional question by declaring such nullification to be unconstitutional, and tell Cordry to report for work given Congress's unlawful arrogation of power here? Presumably in time the five ward-heelers on the Supreme Court would try to come to McConnel's rescue, but it would take time and be an argument worth having.

  • zandru on December 12, 2011 10:48 AM:

    "Why not provoke the constitutional question by declaring such nullification to be unconstitutional, and tell Cordry to report for work..."

    suggests bob h.

    Bingo! Email or fax the White House, inform your Congressional delegation, and start making a scene about Republican nullification. If the rest of the Democrats see the train rolling by, maybe some of them will be smart enough to get on.

    It's time to try democracy from the bottom up. (And why should this sound so radical?!)

  • jjm on December 12, 2011 10:56 AM:

    ... and yet the latest NBC/Marist poll has Obama beating the pants off the top GOP candidates in SOUTH CAROLINA, home state of Lindsay G.

    From Today's TPM site:

    "There's a new poll out tonight from NBC/Marist with a lot of new data on the GOP primary race. But there's one bit of data buried down deep in the results that caught TPM Reader GL's eye. And it's quite an eye-popper.

    At this moment, according to this poll, President Obama is beating both Gingrich and Romney ... in South Carolina. Right, that's well-known bellwether South Carolina, home of John C. Calhoun, Strom Thurmond and a lot of other worthies but not many statewide Democrats in recent years."

  • whatgoesaround on December 12, 2011 11:03 AM:

    Not to imply that I agree with Republican stonewalling on appointments, but isn't this somewhat similar to the Obama administration telling the DOJ not to defend challanges to the DOMA?

    However repugnant any individual may find DOMA, it IS federal law. How is failing to support, or *execute*, a federal law qualitatively different from having a senate minority impede implementation of a law they disagree with by holding up appointments? Just sayin'...

    @T2: as for "majority rules", our entire federal system was set up to PREVENT "majority rules": bicameral legislative branch, electoral college, checks-and-balances. Yes, it sucks when the "other side" wins a round even though they are the minority, but frankly I like having a little extra protection when the "other side" is in the majority

  • TooManyJens on December 12, 2011 11:42 AM:

    Fundamentally, the Republican Party doesn't believe that Democrats have the right to govern. They believe that if Democrats have political power, that power is by definition illegitimate. Thus, they also believe that they are justified in doing anything, no matter how anti-democratic (small d), to stop Democrats.

    Of course, it never occurs to our shallow and stupid mainstream media to treat this as anything other than the usual partisan squabbling, because that's all they understand.

  • TooManyJens on December 12, 2011 11:45 AM:

    Also, whatgoesaround, the administration is executing DOMA. They have said that they're not going to go to court and affirmatively defend it as constitutional when they don't think it is, but they are executing it as long as it's the law.

  • chopin on December 12, 2011 11:58 AM:

    I think it is high time this growing cancer of refusing the executive branch either confirmations or funding to execute their duty be resolved once and for all. Obama should appoint Cordray and dress for battle.

  • Crystal on December 12, 2011 12:07 PM:

    I beg to differ. Nullification is not the larger problem.

    The larger problem is mediocrity in journalism. Television celebrities like David Gregory and Chris Wallace are paid millions, but they don't do adequate interviews.

    These celebrities deserve our opprobrium for their journalistic failure in questioning false statements made by McConnell and Graham. It requires no special knowledge to understand that McConnell and Graham are merely restating arguments that they lost in the debate, when the agency was created by a vote in Congress.

    Fallows, Cohn and Mann know it. Why don't Gregory and Wallace? Nullification of journalism via television, perhaps.

  • RL Alitheia on December 12, 2011 1:49 PM:

    @whatgoesaround -
    I agree with your premise, but not your supporting example. As @toomanyjens pointed out, they simply aren't DEFENDING the law. A more parallel situation would be the refusal by Senate Democrats to confirm Bush nominees. That, you might remember, led to the Gang of 14 agreement to not use the filibuster except in extreme circumstance. Ironically, Lindsey Graham was a member of the Gang. Four of the seven Republicans who called for the agreement are still in office, and have both in this case and routinely participated in filibustering for the "extreme circumstance" of it being an Obama/Dem "win."

    I don't agree with the second part of your post. I agree that minority rights need to be protected. However, your statement about our system misses the point of the article: Senate Republicans are refusing to confirm a nominee to an agency that has already been established by law. One side already "won." This isn't the minority working within its rights to prevent "bad" legislation from being passed... it's sour grapes.

  • Ted Frier on December 12, 2011 2:30 PM:

    Thank God people are finally starting to wake up to the fact that we have a Constitutional crisis on our hands here! The idea that the losing side in the argument gets to make all the rules is crazy. Letting Republicans stop the nation from enforcing its laws makes about as much sense as the signing statements that George Bush used to try to undermine rule of law and and make himself the nation's judge, jury and executioner.

    I've been shouting for three years now that the tactics being used by Mitch McConnell and the GOP are no different from John C. Calhoun with his theories of "concurrent majorities" and the Southern "fire-eaters" who tried to institutionalize minority -- and Southern -- rule. If Andrew Jackson were alive today he'd be federalizing the states' militia or teach Mitch McConnell a lesson.

    The dusty norms of the Senate designed for a more civilized era when Senators treated one another as colleagues are simply not compatible with today's ideological politics in which Republican Senators get no points for good manners. Either the public will have to punish the GOP for its embrace of right wing radicalism or the Senate will have to change its rules to preserve democracy.

  • Herostratus on December 12, 2011 2:50 PM:

    Welcome to the Weimar Republic.

  • Zach W. on December 12, 2011 3:02 PM:

    @ Square1 and BigTuna

    Why are you so concerned with Steve referring to Republicans as confused? The way I see it, Steve is giving them the benefit of the doubt that if they really understood what they were doing then they wouldn't do what they are doing. The flip side of that is that they know exactly what they are doing and that paints their actions in a much more sinister light. So which is it? Do you prefer that Steve operates under the assumption that Republicans are by and large well-intentioned, and standing on principle, yet confused about the consequences of their actions, or that they are anarchists working to dismantle the country from the inside?

    Furthermore, if Republicans are not in fact confused, what are we to make of their bogus claims about taxes and "Job Creators"? How do we interpret claims about the EPA regulations killing job growth? Either one party is full of oft-confused intellectual light-weights, or they are all serial liars.

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