There’s been a fair amount of forensics done lately on some of the “ratings” made by PolitiFact and other fact-checking agencies. Some of the criticism has been very accurate and illuminating, some of it is partisan nonsense designed to reduce the public value of facts to the level of opinions (after all, if opinions are as valid as facts, then the GOP is on much firmer debate ground).
And indeed, there are times when the fact-checking services (not just PolitiFact) get it wrong. Despite the occasional gaffes, mistakes and (inevitable, human) bias that sometimes creeps into their work, however, the fact-checking services DO provide an invaluable service: they do the research and verification that the average news consumer has neither the time nor, often, the skills to perform on a daily basis for themselves in order to make sure that the news they’re getting is factually correct. So, while it’s important to “watch the watchers” and make sure the fact-checkers got it right, when they make a pronouncement, it’s worth paying attention to.
Such is the case with the recent fact-checking by PolitiFact of Senator Sherrod Brown’s claim that the GOP obstruction of President Obama’s nomination of Richard Cordray to helm the CFPB specifically because they objected to the agency itself that Cordray is nominated to direct, was literally without precedent in Senate history.
PolitiFact checked into Brown’s claim and (surprise, surprise!) after their investigation, rated it true:
…based on the record, including its nuance, we take the Senate historian’s word: Brown was correct when he said this was the first time that a political party has blocked a nomination unless changes were made to an agency. To repeat Ritchie’s words: “We searched through past cases and could not find anything that fit the current circumstance.”
We rate Brown’s claim true.
That’s “true.” Not “mostly true” or “partly true,” but TRUE, full stop.
PolitiFact also, as is their wont, goes out of their way to say that their determination “isn’t a question of which side is morally or politically correct,” and I agree: it isn’t (and shouldn’t be) PolitiFact’s job to determine which side of a question of fact is morally or politically correct. But the determination itself of which side was speaking truthfully and which side was not can and should lead voters, readers, media figures and the public at large to draw conclusions about the political or moral worth of each side’s claims and/or action.
I point this out because in this case, there is already both hand-wringing on the Democratic side and saber-rattling on the GOP side that if President Obama should recess-appoint Mr. Cordray to the post Republicans are denying him even a confirmation vote for, it will be seen by voters as a power play or even an abuse of power by the President. Making matters worse, it may even be difficult for Mr. Obama to make a standard-issue recess appointment like the ones George W. Bush used to install John Bolton as head of the United States UN delegation, because even though it is the Senate which provides advise and consent on Presidential nominations, there is an obscure rule in Congress which provides that each house must obtain the permission of the other house if it wishes to adjourn for more than three days.
In the past, recess appointments weren’t made by Presidents during such short Congressional breaks, so it would indeed be unprecedented for President Obama to do so now. Ordinarily the upcoming winter/Christmas break would be much longer than three days, but because the GOP-controlled House of Representatives is working with the GOP-minority Senate to try to stymie as many Obama appointments as they can, they are utilizing this obscure congressional rule to deny the Senate the ability to go into recess for longer than a few days. This sets up the specter of President Obama having to either forcing Congress to adjourn (a power the President has, but which has never been used by a President), or make a recess appointment in a much shorter break than has ever occurred before. Either action by President Obama would indeed be without precedent in American history.
However, this is a conscious strategy by the GOP. They are already utilizing every tool at their disposal to prevent the CFPB from functioning effectively as a consumer bulwark against rapacious lenders, and they are counting on the fact that the President will lose his nerve if his only choices are to take one of a number of unprecedented steps in order to accomplish what should be a relatively routine task. Indeed, Republican Senators and right-wing media figures are already bloviating against “unprecedented abuses of power” and the like by the President.
In truth, I am not usually a fan of creative rule-interpretation in government, even when it benefits “my side,” precisely because of the precedent it can set. There’s always the proverbial possibility of opening up Pandora’s box, and with it, a host of unforeseen consequences which might be potentially very damaging. But in this case, the President himself has already pushed Cordray’s nomination to the forefront of the White House agenda, with the President publicly and repeatedly highlighting the importance of installing a staunch consumer ally into the position as the head of the CFPB. President Obama is quite right to do place such emphasis: the Dodd-Frank law provides for this position to be filled, and if it remains unfilled, the CFPB cannot fulfill all of its mandate to protect consumers from predatory lending.
Throughout this dragged-out mess, as the PolitiFact investigation reminds us, it is Republicans who have been the ones taking unprecedented steps, not Democrats. The GOP leadership want to re-legislate the creation of the bureau itself, and its structure and powers. Too bad. That time has passed. If they truly believe the CFPB to be a threat to the country (instead of just to the bankers who pull the GOP strings), then they should wait until the next time they’re in the majority in the Senate and control the White House, and see how well they do at repealing or gutting the CFPB. See what the public thinks about going back to the days of fifteen-page credit card agreements and predatory payday lending at thirty, forty, fifty percent interest. Indeed, that’s why the GOP is fighting so hard – and so dirty – now: because they know for certain that once this bureau is fully up and functioning, the public is going to LOVE it and wonder how they ever did without it. Mitch McConnell and John Boehner know full well that they’ve got one chance to strangle this pro-consumer agency in its infancy, before the public gets a chance to see how well it will protect them. So they’re pulling out ALL the stops.
From a tactical standpoint, I suppose, you can’t fault them: they are playing (as they always do) as hard as they can, playing to win. President Obama, however, should take a page from the GOP’s playbook and play equally hard; play to win for voters and consumers. The President and Democrats are agreed that the country needs the CFPB to have a pro-consumer director, sooner rather than later. They have both the public and the law on their side. More importantly, they are right in their assessment. Richard Cordray is the director the CFPB and the public deserve, and President Obama should not allow himself to be cowed by threats of taking “unprecedented action” by opposition leaders who utilize parliamentary parlor tricks and equally unprecedented maneuvering to block what the law provides for. As PolitiFact reminds us, it is the Republicans who are taking unprecedented steps to block reform; President Obama should not fail to use the tools which the constitution clearly puts at his disposal to break such a logjam of obstructionism. Although taking such steps would indeed be unprecedented, doing so would also be a nothing more than an appropriate proportional response to the unprecedented obstruction of the GOP. To put it more bluntly – and in keeping with PolitiFact’s meter with which I began this post – here’s a graphical representation of how much weight President Obama should assign to GOP warnings against him taking “unprecedented steps” to appoint Richard Cordray to head the CFPB:
Recess appoint Richard Cordray by whatever means necessary.