And The Senate Was Without Form, And Void
By Ben Tomkins
President Obama’s decision to appoint Richard Cordray to the Consumer Financial Protection Bureau despite the Senate holding pro forma sessions is a victory of principle over policy.
The original intention of recess appointments was to allow the president to carry on with necessary business when Senate recesses involved lengthy horse-and-buggy trips to home states that could render Senators unavailable for several months. These days, of course, the Senate adjourns for a few weeks at Christmas and various other holidays. If the President finds it vital to national interests to appoint a head of the CFPB at that particular temporal junction, the Constitution gives him that right.
I think it is patently obvious that it is important for the president to be able to do this. Despite the fact that the Senate doesn’t adjourn for a period of time we would consider lengthy these days, and despite the fact that we live in the 21st century with airplanes and the internet, the bottom line is that there are certain times every single year when the Senate is not in session, and some policy has to be in place. Allowing that recess to completely and totally neuter the ability of the president to, say, replace the head of the CIA if David Patraeus dies when the Senate happens to be taking a week off to celebrate Memorial Day, would effectively ruin the ability of our country to function effectively in times of crisis. (Incidentally, the building in which the CIA conducts business is called the George Bush Center for Intelligence. That’s very, very funny to me.)
The principle, as I see it, is not a question of their physical presence in the building. It’s the fact that their absence results in a situation where they cannot conduct business. And that’s exactly what a pro forma meeting of the Senate is. Here’s the excerpt from the 12/20/11 Senate hearing describing their intention to hold pro forma sessions for the next few weeks:
“It will conduct a Pro Forma Session only with no business conducted.”
It hurts my head to even attempt to derive meaning from that sentence. The phrase “pro forma session” is like saying “white black thing”. Furthermore, “session”, according to Webster, is defined as “a meeting…for the transaction of business”. But wait, how do you hold a meeting for the transaction of non-transaction of business. And how do you “conduct” that meeting without conducting anything? That would mean, no, I guess … but then … it’s …
The very best I can do with that mandate for action/inaction is the following translation:
“The Senate will conduct/not conduct a session/not session.”
I actually watched a clip of a pro forma meeting on C-SPAN and read the transcript of several of these things from late December to early January, and let me tell you, it is the most hateful thing you will ever see.
The first transcript listed the start time as 9:30 a.m. and the closing time as 9:31 a.m. After watching C-SPAN, I would suggest to you this that is an egregious inflation of the facts. The average Senator probably spends more time getting to the chamber from the parking lot than attending/not attending the event/not event. For me, the best part of the whole experience was watching the person in charge dutifully trudging their way through parliamentary procedure in front of a virtually empty room. It was like watching an only child hold court over their stuffed animals.
“Without objection, motion to close the session?”
A gavel echoes for almost fifteen seconds in an empty chamber, by the way.
Listen, have I made my point? A pro forma session of the Senate is not a meeting, or session, or whatever you want to call the act of getting together under the pretense that something might actually occur. It’s a silly political hoop, everyone knows it, and Barack Obama has every right to treat them as absent and make recess appointments under such circumstances. The Department of Justice appears to agree.
Finally, for those who are pissed off that Harry Reid started this nonsense back in 2007 to counter President Bush, who incidentally made more recess appointments (171 compared to President Obama’s 28) than any other president in history, might I point out that no one thought it was okay back then. I ask you seriously (and I’m talking to Republicans here): be honest with yourself and recall if you were pissed off when Harry Reid did it in the first place. Of course you were, and I agree. The fact that Obama is calling BS on the Senate doesn’t mean that it’s a miscarriage of justice because it’s working out against your political inclinations. It wasn’t right when they did it to Bush either, he just decided to let the Senate play their little power game because he had barely a year left in office and he knew they would confirm his guy anyway.
The whole premise of pro forma meetings is stupid. Some president would have eventually called them out, so forget your politics. Better sooner than later on this one, regardless of the messenger.
Benjamin Tompkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tompkins at BenTompkins@DaytonCityPaper.com.