Rob Portman doesn’t think the moment is right for the U.S. Senate to vote on the nomination of Richard Cordray. The Ohio Republican highlighted for reporters last week discussions with the Obama White House, and among his Senate colleagues, Democrats and Republicans, looking for a compromise path to confirmation, putting Cordray “properly” in charge at the Consumer Financial Protection Bureau.
That “properly” alludes to the recess appointment President Obama used to set up the former Ohio attorney general as the bureau director last year. A lawsuit involving the recess appointments of members of the National Labor Relations Board has reached the Supreme Court. The eventual ruling could affect the Cordray appointment. The thinking among Portman and others is that the pending case may provide leverage to move the White House toward a deal.
Give Portman credit for exploring a deal, as opposed merely to playing the obstructionist. If an agreement can be struck, the matter would move forward. Yet at some point, prolonged, and fruitless, discussions begin to work like a lengthy delay. Portman talks about seeking “reasonable” changes. Still, there is something unreasonable about his position. Congress has acted properly, approving the Dodd-Frank package of financial reforms in 2009, even with Republican votes.
Among its provisions, the legislation created the Consumer Financial Protection Bureau, requiring Senate confirmation of its director. The Senate now has no small obligation to follow the law. The Senate historian cannot recall another time when lawmakers blocked a nominee because they had problems with the structure of an agency.
Republicans argue that the bureau lacks sufficient accountability. They would like to see a bipartisan commission applied to the agency, rather than a single director in charge. Of course, those commission members would face Senate confirmation, the experience of Cordray and others reinforcing the vulnerability to partisan games.
Republicans want, among other items, the bureau budget as part of the regular congressional appropriations process. (It now receives a share of the Federal Reserve budget.) They want an inspector general dedicated to the bureau. They want tighter oversight of bureau rule-making.
All of this is reasonable, in the sense that other agencies have such elements in their structure. Yet the same can be said about the bureau.
Congress has chosen at times to have a single director to improve accountability. An agency has been removed from congressional budgeting to provide a buffer against undue political influence. Know that the inspector general of the Federal Reserve covers the bureau. A Financial Stability Oversight Council has the authority to override bureau regulations. The bureau director must appear regularly before congressional committees.
Congress did not create a runaway agency, one with unfettered power. It created one to bolster the position of consumers in the financial marketplace, and under Cordray, it already has brought improvements, the director winning applause from both sides of the aisle for his work.
Rob Portman and his allies want to use their leverage. Yet they shouldn’t overlook their duty to respect what Congress accomplished through the usual legislating and allow a confirmation vote on Richard Cordray. Then they can seek their own majority to make the changes they want to the Consumer Financial Protection Bureau.