George Zornick | The Nation
Eleven Shocking Facts About Campaign Finance
It’s been two years since the Supreme Court handed down its decision in Citizens United vs. Federal Election Commission, allowing a torrent of secret money to flow into the political process.
To be clear, the corrupting influence of big money was distorting the democratic process for years before that decision. But it unquestionably made the problem worse, exacerbating both the volume and secrecy of campaign donations.
Here’s eleven disturbing facts about the extent to which money is playing an increasing role in our politics:
The amount of independent expenditure and electioneering communication spending by outside groups has quadrupled since 2006. [Center for Responsive Politics]
The percentage of spending coming from groups that do not disclose their donors has risen from 1 percent to 47 percent since the 2006 mid-term elections. [Center for Responsive Politics]
Campaign receipts for members of the House of Representatives totaled $1.9 billion in 2010—up from $781 million in 1998. [Committee for Economic Development]
Outside groups spent more on political advertising in 2010 than party committees—for the first time in at least two decades. [Center for Responsive Politics]
A shocking 72 percent of political advertising by outside groups in 2010 came from sources that were prohibited from spending money in 2006. [Committee for Economic Development]
In 2004, 97.9 percent of outside groups disclosed their donors. In 2010, 34.0 percent did. [Committee for Economic Development]
In 2010, the US Chamber of Commerce spent $31,207,114 in electioneering communications. The contributions for which it disclosed the donors: $0. [Committee for Economic Development]
Only 26,783 Americans donated more than $10,000 to federal campaigns in 2010—or, about one in 10,000 Americans. Their donations accounted for 24.3 percent of total campaign donations. [Sunlight Foundation]
Average donation from that elite group was $28,913. (The median individual income in America is $26,364) [Sunlight Foundation]
Amount the Karl Rove–led Crossroads GPS says it will spend on the 2012 elections: $240 million. [On the Media]
Amount that President Obama has raised from the financial sector already for his 2012 re-election: $15.6 million [Washington Post]
Progressives to Obama: Don't Protect the Banks
If you listen only to his speeches, President Obama has certainly taken on a more populist and progressive economic message. In December, for example, he called out trickle-down economics, saying “It doesn’t work. It has never worked.” In that same speech, the president said that income inequality was the “defining issue of our time” that also “distorts” our democracy.
Those words have at times been matched with action—Obama successfully pressed for extended unemployment insurance in December, and in January, he used controversial recess appointments to staff the Consumer Financial Protection Bureau and the National Labor Relations Board.
But the administration’s newly found populism has a glaring weak spot: its failure to punish the large financial institutions that helped create the current economic crisis, and the corollary failure to help those hurt most by the mortgage crisis.
In fact, it would be more accurate to say that the administration is trying to protect those large financial institutions by pushing for a nationwide settlement that would let bankers avoid any investigation into the wide-scale mortgage fraud that took place for much of this decade—to say nothing of punishment.
The settlement, which the administration is trying to force upon sometimes unwilling state attorney generals, would force banks to write down the principal on many mortgages—but using bank investor money, not the bank’s own funds. This would lead to less, and lower, write-downs, and wouldn’t ask the banks themselves to sacrifice anything. And given the failures of the administration’s mortgage assistance programs to date, it’s even harder to believe people with underwater mortgages would be helped under a similar federal initiative.
Moreover, the settlement then protects the banks from prosecution over the housing crash forever. As 60 Minutes noted in December, there hasn’t been a single prosecution of a high-ranking executive nor Wall Street firm for their role in the crisis. As Campaign for America’s Future RJ Eskow writes, “[j]ustice isn't served by letting an entire group of wealthy and powerful individuals remain above the law. And justice isn't served when millions of Americans continue to pay the price of financial ruin or hardship for crimes that will forever remain unpunished.”
So today, several progressive groups—The Campaign for America’s Future and MoveOn, Credo, Progressives United, New Bottom Line and Color of Change—is working to deliver petitions to the White House and the Obama campaign office in Chicago demanding that the big banks not be left off the hook. It reads:
We the undersigned urge you, President Obama, to launch an immediate investigation into what the FBI warned was an “epidemic of fraud” that contributed to the housing crisis and threw millions out of their homes. The proposed sweetheart deal that would prevent such an investigation from taking place should be stopped. It is vital that the laws be enforced, that those who broke the law be held accountable—or else Wall Street bankers will feel free to defraud people in the future.
You can view the petition here. We’ll keep you posted in its progress.
Keystone XL Is Dead—Again
For the second time in as many months, the Obama administration has rejected the Keystone XL pipeline—a hugely controversial project that would traverse the length of the country from Nebraska to the Gulf of Mexico, carrying heavy and dirty tar sands oil from deep in Canada.
You’ll recall that, following a summer of protests and civil disobedience, the administration announced in November that it was delaying the project for at least a year, until a less disruptive route around a key aquifer in Nebraska could be studied and proposed. (Many believe this delay would kill the project entirely).
But Republicans successfully revived the project during the end-of-year negotiations on the payroll tax cut and unemployment insurance. Democrats desperately wanted these measures, and the final bill included a provision that would force the State Department to issue a decision on Keystone within two months.
Today—less than even one month since the payroll tax cut bill was passed—the State Department announced they were denying the permit. In a statement, President Obama endorsed that decision: “As the State Department made clear last month, the rushed and arbitrary deadline insisted on by Congressional Republicans prevented a full assessment of the pipeline’s impact, especially the health and safety of the American people, as well as our environment.”
That’s a crucially important point for understanding the politics of this pipeline fiasco. Republicans—or at the very least, the leadership—knew full well that this rushed, two-month review would not lead to a sudden approval of the project. As Obama noted, the State Department said as much in December.
So why did Republicans insist upon its inclusion into the payroll/unemployment debate? Well, for one thing, in case you’ve forgotten the dynamics of that showdown, House Speaker John Boehner was desperate to round up votes for the extensions. Republican leaders were convinced that opposing a payroll tax cut and help for the unemployed was politically toxic, but the Tea Party members of the House didn’t agree. So early on in the process, the Keystone provision was added as a sweetener to bring recalcitrant Republicans on board.
But beyond simply whipping votes, Republicans clearly believe that the Keystone issue is good politics for them. They are happy to make Obama kill it not once but twice, because it allows them to paint him as quashing (allegedly) shovel-ready, job-creating projects just “to protect left-wing environmental extremists in San Francisco,” in the typically restrained words of Newt Gingrich.
Obama’s rejection of the pipeline is a vehicle to paint him as a job-killer, at a time when private-sector job growth actually continues to be positive. And behold the mileage they attempted to put on their new ride today, immediately following the announcement.
Here’s Boehner:
“This is not good for our country,” [Boehner] continued. “The president wants to put this off until it’s convenient for him to make a decision. That means after the next election. The fact is the American people are asking the question right now: Where are the jobs? The president’s got an opportunity to create 100,000 new jobs almost immediately.” […]
“The policies that have been implemented by the Obama administration and the Democratic Congress they had that preceded us have made the economy worse and have made it more difficult for small businesses to create jobs,” he said.
GOP presidential front-runner Mitt Romney:
“It shows a President who once again has put politics ahead of sound policy,” the former Massachusetts governor and GOP presidential frontrunner said in a statement Wednesday afternoon. “If Americans want to understand why unemployment in the United States has been stuck above 8 percent for the longest stretch since the Great Depression, decisions like this one are the place to begin.”
“This political decision offers hard evidence that creating jobs is not a high priority for this administration,” said Thomas Donahue, the chamber’s chief executive officer. “The president’s decision sends a strong message to the business community and to investors: Keep your money on the sidelines, America is not open for business. By placing politics over policy, the Obama administration is sacrificing tens of thousands of good-paying American jobs in the short term, and many more than that in the long term.”
For the record, the Keystone project would create very few jobs. But it’s easy to sell the construction of such a huge project as a job creator. Republicans, at this point, are much less interested in actually reviving the project—forcing the two-month decision nearly guaranteed its rejection—than they are with empty political theatre around jobs.
This is one of those issues, like say the Bush tax cuts, where both sides think they have a political winner. The White House clearly thinks this is good for them, as it shores up environmentalist voters and helps prove itself to the left at large. (If the Keystone pipeline rejection isn’t included in an Obama campaign blog, e-mail, or stump speech, I’ll give $10 to everyone who reads this blog).
Some progressives are understandably concerned that the White House is being a little too politically clever—that the project will be approved after the election. I’ve seen no evidence this is true, but it’s worth keeping in mind.
But what’s going to happen for at least the next year is a prolonged public debate over whether a small amount of jobs are a worthy price to pay for further destroying the climate, polluting American land and water, and enriching oil companies—with the White House laudably taking the strong position that it’s not.
UPDATE: Talking Point Memo's Brian Beutler spoke to some anonymous GOP aides who confirmed that they preferred beating Obama up on the pipeline rather than actually reviving it:
They relished the idea of forcing President Obama to take a public stand on the pipeline early in an election year, instead of after the election as he had wanted.
And they were eager to force him to choose between supporters in the labor movement, some of whom are pushing for the pipeline, and others in the environmental movement who vehemently oppose it. So they decided to go for it.At the same time they knew he’d likely have to reject the project, and for them that created a dilemma.
“It’s a question of whether we’d rather have the pipeline or the issue,” said one of the GOP aides. Black or white.
In the end they chose the issue.
One wonders how happy big-oil donors to the GOP are with this development.
The Tea Party Helps Hold the Line on Internet Freedom
Since 2009, the far right has seen the evil hand of government intruding everywhere: healthcare reform was really a diabolical plot to institute government death panels that would kill off the elderly and disabled. Bailing out the auto industry was really a government takeover of a proud American private manufacturing sector. Getting rid of private student loan servicers? Yet another “soviet-style” takeover. And let’s not even get started on cap-and-trade legislation to limit carbon emissions—that, of course, is an international plot designed to “control what you can and cannot do.”
So when it comes to the Stop Online Piracy Act and its companion in the Senate, the Protect Intellectual Property Act—bills that, if you haven’t been following, would actually give the government unprecedented power to censor the Internet in the name of preventing piracy—one might reasonably expect politicians who so often channel Tea Party phobias about federal control to oppose them, too.
Fortunately, that’s exactly what’s happening. Despite the highly effective protests and seeming turning tide of public opinion, PIPA is still looking at an uphill battle in the Senate. (The White House might end up vetoing the legislation anyhow, but it would no doubt be a setback for Internet freedom supporters if that bill actually cleared the Senate, since it would set a benchmark for the next inevitable battle over intellectual property online).
There are currently only sixteen senators on the record against PIPA:
Scott Brown
Maria Cantwell
Benjamin Cardin
Tom Coburn
John Cornyn
Jim DeMint
Chuck Grassley
Orrin Hatch
Mike Lee
Jerry Moran
Rand Paul
Marco Rubio
Jeff Sessions
Mark Udall
Mark Warner
Ron Wyden
That’s a pretty low number. There are thirty-eight senators supporting it, with the rest undecided. Now take out the Tea Partiers and their anti-government sympathizers—Coburn, DeMint, Lee, Paul, Rubio—and the list gets even smaller. Throw out frequent but not consistent members of that group—Cornyn, Grassley, Hatch, Moran and Sessions—and it’s smaller yet.
Many of the aforementioned opponents are using the same language to oppose PIPA that they’ve used in railing against other, non-scary administration initiatives.
Here’s Paul, for example: “Blocking entire websites from search engines due to questionable [content] is not only an overreaction to the problem, it essentially gives government and some companies the power to regulate and censor the Internet.” (His father added from the presidential trail this week, “Let me tell you, governments can't protect you from yourself. And they don't need to be taking over the Internet either.”)
Lee talked about “dilution of First Amendment rights” when he opposed it; Moran noted “serious constitutional and security concerns.” On the House side, right-wingers were no less passionate: Representative Paul Ryan, an opponent of SOPA there, said last week that “the internet is one of the most magnificent expressions of freedom and free enterprise in history. It should stay that way.”
It’s tempting to crack a joke about broken clocks being right twice a day, but there’s no reason to believe these concerns about constitutional violations and intrusive government aren’t heartfelt—even if some prior accusations were clearly off the mark, or motivated by politics. They’ve been a royal pain to progressive causes in recent years, but it’s not all bad to have these rigid opponents of government authority in Congress.
Occupy DC Kicks Off
The day of action kicked off this morning on in front of the Capitol building, where an admittedly paltry number of protesters gathered in light rain. At the moment—around 11 am EST—the Occupiers have splintered off to conduct teach-ins on issues Congress won’t confront and to visit with members.
At noon, there will be what organizers are billing as “the largest national general assembly yet in the American Occupy movement.” You can watch a livestream here.
More teach-ins will continue throughout the afternoon, and the day culminates at 6 pm with an Occupy DC rally and protest, along with a silent vigil for DC voting rights. You can follow my twitter here for some updates and pictures.
There are also some interesting corollary protests going on in Washington today—this morning I attended an anti–death penalty rally in front of the Supreme Court. The crowd was once again sparse, to say the least, but surely motivated—about fifteen demonstrators unfurled a large banner reading “Stop Executions” on the upper steps of the building, and refused to move. They were arrested by the Supreme Court’s police force.
UPDATE: The General Assembly began not long after noon, with many hundreds more Occupiers joining the group from this morning, and pushing the total number up over 400.
The Occupiers huddled in state and city-based groups, and I saw congregations from as far as Texas, Phoenix, Atlanta and North Carolina. Unfortunately, after only about five minutes of proceedings, a minor conflagration with Capitol Police about 50 yards away suddenly became a major object of attention, and easily half of the General Assembly fled to observe and participate.
Retired Philadelphia Police Captain Ray Lewis, a mainstay at Occupy events, arrived in what appeared to be his Philadelphia police uniform. Capitol Police stopped him, and seemed to have a problem with Lewis entering the protest as a uniformed officer. Occupiers immediately noticed the detention, and a few mic-checks later hundreds of people fled the Assembly and surrounded the Capitol Police and Lewis.
Lewis was ultimately freed by the police, but the Occupiers who came over were determined to keep up the confrontation. Capitol Police were not allowing anyone to block a sidewalk that led away from the Capitol building, so naturally the Occupiers were determined to stand on it. I saw two protestors arrested after charging onto the sidewalk and towards police directly, and many others streaked back and forth across the sidewalk when officers were looking the other way.
The standoff is continuing now, and the Assembly bled away at least a couple hundred attendees to the “battle.” We’ll keep you posted throughout the day.
(Photo by Loren Fogel / The Nation)
UPDATE 2: Occupy D.C. sends over this video from Senator Carl Levin's office this afternoon, where protestors--including another Occupy celebrity, Sgt. Shamar Thomas--stage a mock-arrest of the Senator for his sponsorship of the National Defense Authorization Act. Protestors enter the office, but then are deemed "terrorists" by a protestor pretending to be Levin, and face indefinite detention until Thomas saves the day:
So, an interesting day to be a staffer on Capitol Hill, to say the least--as Levin's flustered press people could surely attest.
Trouble on the Horizon for Occupy DC
The Occupy encampments in the nation’s capital—there are actually two, one at Freedom Plaza and one at McPherson Square—have so far enjoyed a really smooth ride, compared to the violent police action and evictions visited upon encampments from New York City to Oakland.
But that may be changing soon: a spate of bad press has led Washington’s mayor, Vincent Gray, to ask the federal Park Service to evict the encampment at McPherson Square. There has been an increasing problem with rats at that camp, which are apparently attracted by the food there, and burrowing in the ground or in the bales of hay some Occupiers are using to pad sleeping stations.
The encampment voluntarily shut down the kitchen there after a visit from the DC health department, and (correctly) argues that rats have always been a problem in downtown DC, but the mayor is not satisfied. There was also an incident last week in which a 13-month-old was left alone in a tent, with temperatures in the 40s, which created a minor public outcry in local news outlets.
Grey is, no doubt, a liberal who is also familiar with civil disobedience—he was arrested last year at the US Capitol in a protest over the federal budget cuts, which prevented the district from spending its money on abortion services for low-income women. He said such measures “violated the rights of district residents to autonomy and self-determination.”
But the Park Service is also feeling pressure from the right—Representative Darrell Issa has been pestering the feds for over a month to clear out the Occupy encampments, cheekily citing alleged damage to recent park improvements that were funded by the 2009 stimulus package.
Occupy DC is already branching out—they plan meetings with members of Congress next week, an Occupy Our Homes effort and rallies at the Federal Reserve. (We will have coverage of those efforts here). But the encampments might not be long for the District.
Groups Move to Force Obama's Hand on the FEC
In the wild post–Citizen’s United world of campaign finance, where unlimited, secret cash flows and the Super PAC are increasingly the preferred tools with which to get candidates elected (or defeated), boundaries are constantly tested with no clear answers. To what extent can Super PACs work with campaigns? What stops all outside groups from going beyond “issue ads” to direct advocacy? How can one be sure the money to Super PACs isn’t from illegal sources, like foreign entities?
The referee to these disputes, and many others, should be the Federal Election Commission. But in recent years the agency has been completely moribund—a “broken agency that refuses to fulfill its basic statutory functions.” In fact, while it has given some guidance in this area, the FEC has not issued a single rule specifically related to Super PACs. Ever.
A key problem is that the commissioners, which are now split evenly between Republicans and Democrats, haven’t rotated for years, staying in their positions because no new nominations can get through the Senate. So the commission is in perpetual stalemate, with the Republican members freezing action on virtually every issue of importance.
Some good government groups hoped that recess appointments to the FEC would accompany the recent White House moves to staff the Consumer Financial Protection Bureau and the National Labor Relations Board. It didn’t happen—and now several of these groups are determined to get an answer.
The White House website allows for petition drives that, if they reach 25,000 signatures, will get an official response. The League of Women Voters, Citizens for Responsibility and Ethics in Washington and the Campaign Legal Center have just filed a petition that asks President Obama to pick a fight with Senate Republicans and name new commissioners to the FEC—Obama has only tried to nominate one commissioner so far during his term, and gave up the fight rather quickly.
The groups say the move is a product of years of meetings with the White House that went nowhere. They told ABC News:
“We have a full conversation with them, and they smile sweetly and they express understanding of our point of view. And nothing happens,” said Lloyd Leonard, advocacy director for the League of Women Voters. “This seems to be rope-a-dope from the administration.… They are very consistent at not responding and failing to provide any reasons for their failure to move ahead.”
The White House is probably reluctant to jump in this fight in an election year, because one of the key issues about Super PACs is the legality of presidential candidate–specific PACs, as detailed in this excellent report from Democracy 21. Obama, of course, enjoys the help of Priorities USA, a candidate-specific PAC that is staffed by former White House aides and has even held meetings for the campaign’s national finance committee members—right after they attended official campaign fundraising events.
The White House surely doesn’t want to lose that fundraising avenue—but they may at least have to explain in the open why cleaning up the FEC isn’t a priority.
(Postscript: West Wing aficionados will recall that forcing new commissioners onto the FEC was one of the fights Jed Bartlett was unwilling to have—until he was convinced by his staff to stop being overly moderate and conciliatory to Congress.)
Job Numbers Are Up, but Veterans Are Left Behind
This morning, the Bureau of Labor Statistics released some encouraging jobs numbers—the private sector added 212,000 jobs in December, and the unemployment rate fell to 8.5 percent. These numbers are seasonally adjusted to control for extra holiday hiring, and the drop in the unemployment level was not caused primarily by people dropping out of the labor force. So this acceleration is a promising sign, though of course a strong jobs recovery remains elusive.
But one group has been left out of this slight rise—and in fact, has seen its employment numbers decelerate at a scary pace. What the Bureau of Labor Statistics calls “Gulf War–era II veterans”—those who served from September 2001 to the present—had an unemployment rate of 13.1 percent in December. In December 2010, that number was 11.7.
That means there are 248,000 unemployed veterans from the wars in Iraq and Afghanistan—and much worse, there’s an additional 442,000 recent veterans who are no longer in the labor force. The New York Times estimated last month that about 30 percent of veterans aged 20 to 24 are unemployed, a steep rise from the rate of 21 percent in mid-2010.
These numbers are also bound to increase in the coming years, since 1 million veterans are expected to join the workforce by 2016 as the wars wind down and soldiers finish their enlistments.
Fortunately, Washington has actually taken some action in recent months to address the unemployment crisis for veterans. In fact, the first part of Obama’s jobs bill to pass (and really the only part, unless you count the recent two-month payroll tax extension) is a provision to give employers tax credits for hiring veterans who have been out of work for more than six months, and to provide additional education and jobs retraining programs. (Though unfortunately, the program was paid for by higher mortgage rates guaranteed by the Department of Veterans Affairs.)
That’s a good start—but additional measures may be needed to address the metastasizing unemployment crisis among those who sacrificed quite a bit for the government already in the past decade.
Cordray Expands CFPB Oversight and Promises A Tough Approach
Richard Cordray addresses a crowd at the Brookings Institution on January 5, 2012. Photo credit: George Zornick/The Nation.
Richard Cordray took control of the Consumer Financial Protection Bureau under controversial circumstances, but on his first full day on the job, he sought to assure people that it won’t affect the bureau’s vigorous agenda. “The appointment is valid. I’m now director of the CFPB,” he told a packed house at the Brookings Institution this morning. “The consumer bureau will make clear that there are real consequences to breaking the law.”
Cordray also announced the bureau’s program to supervise non-bank financial institutions like payday lenders, check-cashing operations, debt collectors, and other outfits that don’t have FDIC backing—something the bureau wasn’t able to do without a director.
That marketplace collects $7.4 billion in fees every year, and has not been subject to direct federal regulation until today. “Our new supervision program may be a challenge for them,” Cordray noted dryly. “But we must establish clear standards of conduct so that all financial providers play by the rules.”
Cordray devoted some of his remarks to telling the stories of Americans who reached out to the bureau for help: there was a woman in Louisiana who had a payday lender attempt to force her into bankruptcy, and another in North Carolina who missed one mortgage payment when her husband died and then saw years of penalty increases.
“In just a short time, we have heard thousands of these kinds of stories. Some are outrageous. The problems are welling up everywhere, from small towns to big cities, from coast to coast. These nightmares are happening to people from all walks of life—from people who have fallen on hard times to people who still consider themselves financially secure,” Cordray said. “They do not expect any special favors. They just want a fair shake. They want a consumer financial system that actually works for consumers. That is exactly what the consumer bureau is here to do.”
The bureau’s website prominently features opportunities for Americans to report difficulties with financial institutions, and Cordray said he views this outreach and response as the central template for the CFPB’s mission. He also recorded a plea for more stories yesterday and released it on YouTube.
Asked specifically about the danger of regulatory capture when soliciting input from the financial industry—something Cordray pledged to do in his speech—he said that the antidote is this communication with consumers.
“The thing that helps us avoid regulatory capture, or any kind of capture, is having that direct pipeline to the individual who feels free to talk to us about the problems they face, the individual problem they experienced,” he said. “I think as long as we can maintain a direct link, that we’re building now—all the other links are important, but it also provides a corrective, so we don’t end up with a skewed view of how we’re actually doing.”
The financial industry has of course spent the past seventeen months trying to capture the bureau, through deep-pocketed lobbying efforts and political gamesmanship to deny the CFPB a director. Though that effort was unsuccessful, the industry isn’t likely to give up. The American Bankers Association blasted Cordray’s appointment as evidence of a “lack of accountability,” and Cordray has already been summoned to testify before one House subcommittee. Extensive legal challenges are also likely.
Cordray was asked if such opposition and challenges will lead to a more cautious agenda at the CFPB—and he replied with a direct “no.” He added: “The law of the land gives us certain responsibilities.”
Obama Bucks GOP, Nominates CFPB Chief
President Barack Obama, accompanied by Richard Cordray, speaks as he visits with William and Endia Eason Wednesday, January 4, 2012, at their home in Cleveland, Ohio. (AP Photo/Haraz N. Ghanbari)
Yesterday, the Washington Post reported that President Obama’s 2012 election strategy would feature a White House battle against an unpopular and intransigent Congress.
Today, the administration fired the first shot. Obama announced this morning his intention to use a recess appointment to nominate Richard Cordray to head the Consumer Financial Protection Bureau, the new regulatory agency that was created by the Dodd-Frank legislation but has been leaderless since the summer because of Republican obstruction in the Senate. “Today, I am appointing Richard as America’s consumer watchdog,” Obama said at a raucous event in Shaker Heights, Ohio, with Cordray at his side.
Recess appointments are common ways for presidents to install nominees the Senate won’t confirm. So common, in fact, that Republicans took pre-emptive measures and wouldn’t allow Congress to actually go on recess during this break—they held meaningless “pro forma” sessions at least every three days, where the session would be gaveled in and then gaveled out just as quickly.
But Obama went ahead and nominated Cordray anyhow. While the Justice Department under Bill Clinton said that Congress must be out of session for three days in order for a recess appointment to be valid, the White House rationale is that the entire pro-forma maneuvering is a “gimmick,” in the words of White House communications director Dan Pfieffer, and no such three-day timeframe exists.
As Ian Millhiser of the Center for American Progress explains, there is indeed legal precedent for this approach:
There was…a showdown during the Bush Administration over President Bush’s decision to recess appoint Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit. In Evans v. Stephens, that court considered whether Pryor’s appointment was invalid because it occurred during a very short legislative break. This court is the highest legal authority ever to weigh in on the question of whether a break in the Senate’s calendar must last a certain number of days before a recess occurs, and it answered that question with an unambiguous “no.”
“The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today,” [the decision said].
Beyond the legal technicalities, Obama is gambling that people won’t care much about inside-the-Beltway procedurals and will favor his aggressive move to make the CFPB fully operational. The agency enjoys approval ratings of 74 percent, and when Cordray takes office it will allow the agency to go after non-bank institutions, like predatory payday lenders.
Obama hammered at this message in this afternoon’s appearance in Ohio with Cordray:
We know what would happen if Republicans in Congress were allowed to keep holding Richard’s nomination hostage. More of our loved ones could be tricked into making bad financial decisions. More dishonest lenders could take advantage of the most vulnerable among us. And the vast majority of financial firms who do the right thing could be undercut by those who don’t. […]
Cleveland, I know you’re hearing a lot of promises from a lot of politicians lately. But today, you’re only going to hear one from me. As long as I have the privilege of serving as your president, I promise to do everything I can, every day, to make this country a place where hard work and responsibility mean something—where everyone can get ahead, not just those at the very top or those who know how to work the system. That’s what America has always been about. That’s what today is all about. And with the help of people like Richard, that’s the country I believe we can be once again.
For years now, progressives have been urging Obama to play hardball with the Republicans in Congress who love that game so much. Republicans have escalated use of the filibuster to historic levels, blocking nearly 20 percent of Obama nominees—and have paid little, if any, political price for using complicated Congressional maneuvers. Now the White House is engaging on that same battlefield of arcana—with a much stronger core message.
As you might expect, Republicans are crying foul. Senate minority leader Mitch McConnell said Obama had “arrogantly circumvented” the Congress, while House Speaker John Boehner called the appointment an “extraordinary and entirely unprecedented power grab.”
But Representative Barney Frank, a longtime proponent of the CFPB, dismissed those comments earlier today. “Republicans’ complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building,” he said in a statement. This is an argument Democrats clearly feel poised to win.
UPDATE:Obama doubled down on his battle with Republican obstructionists in the Senate by recess-appointing three members to the National Labor Relations Board this afternoon under the same reasoning used to justify Cordray's appointment. Sharon Block, Terence Flynn, and Richard Griffin are now poised to take seats on the NLRB this week.
Conservatives may fairly argue that since these appointments were only made in December, the Senate hasn't had a fair chance to even take them up, and so the recess appointment is a particularly daring "bull-rush," in the words of the National Review. But the GOP blocked Obama's last appointment to the NLRB and these three would absolutely have faced the same fate--and if no action was taken, the NLRB would actually shut down due to failure to reach quorom, since Obama's last recess appointment to the board expired at the end of 2011. That would have left only two NLRB members, which is not enough to perform its duties.
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