How Politics Shaped Obama's CFPB Decision

WASHINGTON — Although doing so carries legal risks for the Consumer Financial Protection Bureau, President Barack Obama's decision to recess appoint Richard Cordray to head the new agency was all about politics.

The move seems aimed at appealing to his party's base, which has been pushing for a recess appointment, and appearing willing to confront Congress, which remains deeply unpopular, on an issue of principle.

Indeed, the White House is clearly betting that bad vibes with Republicans on Capitol Hill will play well with many voters, at least when it comes to consumer financial protection, where polling suggests that the public sides with Democrats.

"When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them," Obama said during Wednesday's speech in Shaker Heights, Ohio, announcing the recess appointment. "I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve. Not when so much is at stake. Not at this make-or-break moment for the middle class."

The president's move effectively bypasses a blocking action in December by 45 Senate Republicans. The GOP senators had vowed to stymie Cordray's nomination — or any potential leader of the agency -- unless the White House agreed to changes to the 2010 law that set up the CFPB.

Larry Sabato, director of the University of Virginia's Center for Politics, said he wasn't surprised that Obama decided to up the ante by appointing Cordray.

"Republicans will complain about it, but the truth is that in Washington, either side is going to use every tactic at their disposal to try to get an advantage," Sabato said in an email. "Obama and his team decided he could proceed with this appointment, so he did."

Rep. Barney Frank, the top Democrat on the House Financial Services Committee, said during an interview that the recess appointment is excellent politics for President Obama, in part because of the consumer bureau's popularity.

"I think what the Republicans have done is an outrage because they're trying to misuse the Constitution," he said.

Frank acknowledged that there may be questions about the constitutionality of the president's action. But he said that the worst imaginable scenario — a crackdown on unsavory practices by non-bank lenders that was interrupted by a court order — would be better than the alternative of inactivity by the CFPB.

"There's no reason not to test it," Frank said. "There's no downside to trying this whatsoever."

But Republicans saw it differently.

Senate Minority Leader Mitch McConnell argued that President Obama "arrogantly circumvented the American people." House Speaker John Boehner characterized the move as an "extraordinary and entirely unprecedented power grab."

Sen. Richard Shelby referred to Cordray as an "unaccountable bureaucrat who will have immense power over the economy."

Rep. Scott Garrett accused the president of "abdicating his oath and duty to preserve, protect and defend the Constitution of the United States by making an unconstitutional recess appointment."

Rep. Patrick McHenry, who announced plans to call Cordray to testify before a House subcommittee on Jan. 24, said: "The President should stop allowing his Chicago political campaign to make his Washington policy decisions."

The reaction by Democrats was similarly bellicose.

Rep. Brad Miller said that what is unprecedented is the Republicans' "abuse of constitutional confirmation powers and Senate rules."

Sen. Sherrod Brown lamented that "too many senators are willing to stand … with Wall Street, blocking a qualified nominee for the first time in the history of the Senate based on opposition to an agency's very existence."

Although Republicans didn't say so, the decision seems likely to have another immediate impact: further delay of the nominations for the Federal Deposit Insurance Corp. and Office of the Comptroller of the Currency.

The nominations of Martin Gruenberg to chair the FDIC and Thomas Curry to become comptroller of the currency were held up by Senate Republicans in December.

Those nominations are uncontroversial on their own terms, but Republicans appear to have been using them to guard against the possibility that Obama would fill the CFPB job with a recess appointment.

A Senate Republican staffer, who spoke Wednesday on condition of anonymity, declined to comment on the likely impact of Cordray's recess appointment on any particular nominations.

But the staffer said generally, "I don't think it'll engender a lot of cooperation, which is unfortunate, because we were working pretty well on nominees."

Supporters of the new consumer bureau dismissed as nonsense the Republican argument that the Senate's confirmation process has been functioning well.

"This is not an isolated story. This is part of an overarching narrative of obstruction," said David Arkush, director of Public Citizen's Congress Watch division. "I don't think things are going to get any worse because they're already unprecedentedly bad."

Sabato said that President Obama has begun running for re-election against what he will continue to characterize as a do-nothing Congress.

"Yes, he's pulling the old Harry Truman act from 1948," Sabato said. "Truman was successful, but his big victory — and big congressional coattails — might have had a lot to do with an improving economy. That's what Obama and the Democrats really need in the upcoming year, along with a weak Republican presidential nominee."