Not Politics as Usual

Congressional norms are breaking down—and day-to-day political reporting should acknowledge that fact

Politico has a story this morning about the likely-doomed nomination of Richard Cordray to head the new Consumer Financial Protection Bureau that is, in many ways, a strong piece of reporting. The article provides a helpful introduction to Cordray’s background in Ohio, a clear discussion of the politics surrounding his nomination, and an explanation of what will happen if, as they have promised, Senate Republicans refuse to approve his nomination unless the CFPB is neutered. This is all good stuff.

But the article is also representative of a problem in political journalism: a tendency, in day-to-day coverage, to describe in routine terms what are actually major changes in the way national politics is conducted.

Here’s the core of the article:

The endorsements of Republicans like [former Ohio State Senate president Richard] Finan and others are unlikely to sway a key bloc of GOP Senate leaders to support Cordray’s nomination, but it isn’t personal. They’ve vowed to scuttle any nominee from taking the CFPB’s top job unless Obama makes sweeping changes designed to dilute the strength of the bureau, which officially launches as an independent agency Thursday.

Consider the reaction of Kansas Sen. Jerry Moran, one of 44 senators who signed a letter to Obama demanding the board change its funding and strong-director format. During a Banking Committee hearing Tuesday, Moran declared that if the bureau doesn’t get a makeover to GOP specifications, Cordray’s nomination will be “dead on arrival.”

Minority Leader Mitch McConnell, among the Republicans who feel the bureau is too powerful and could harm the economy, laid down his own marker on the Senate floor a day earlier: “We’ll insist on serious reforms to bring accountability and transparency to the agency before we consider any nominee to run it.”

This is a clear, accurate description of what’s going on here: Republicans in the Senate, which has the constitutional authority to offer “advice and consent” on many executive-branch appointments, are refusing to confirm Cordray for the CFPB post. But the GOP stance has nothing to do with Cordray—Republicans are refusing to confirm any nominee unless the CFPB, which was created a year ago after bruising congressional negotiations as part of the Dodd-Frank act, is overhauled on their terms.

What’s not as clear it might be, despite a passing mention in the article to how these are not “normal circumstances,” is just how unusual the Republicans’ stance is. Legislative wrangling over executive-branch appointments is nothing new, of course. But typically, that wrangling is about whether a particular nominee is too extreme, or is part of an attempt to win a minor policy concession—not a frontal attack on the mission and structure of an executive-branch body.

Here is the congressional scholar Thomas Mann making this point to the The New Republic’s Jonathan Cohn the other day:

In the case of the Consumer Protection Board, Senate Republicans have said they would not confirm anyone who does not agree to restructure the leadership of the agency from a single person to a multi-member body. They insist that a legitimately passed law be changed before allowing it to function with a director—a modern-day form of nullification. Same with the director of the Center for Medicare and Medicaid Services. There is nothing normal or routine about this. The Senate policing of non-cabinet appointments is sometimes more aggressive but the current practice goes well beyond that, more like pre-Civil War days than 20th century practice.

“Nullification,” of course, is the constitutional theory that helped precipitate the Civil War, so that’s a strong epithet coming from someone like Mann. But in more neutral terms, the GOP stance here represents a major change in congressional protocol, with implications for the functioning of the federal government that extend well beyond this particular fight. Even in an article that is limited to the Cordray nomination, it’s peculiar not to explore that more fully.

What happens when these changes are routinized in press coverage? The article itself offers an example. The passage cited above notes that 44 senators have vowed to oppose any nominee unless major changes are made to the CFPB. The Senate, of course, has 100 members, so blanket opposition is a minority position—except that, as the filibuster has become standard operating procedure, 60 votes are now required to do anything in the Senate.

This procedural change, which is itself fairly recent, is essential to understanding why Cordray’s nomination is poised to fail—and yet, it goes undiscussed in the Politico article. Through repeated use, a procedural tactic that will allow a congressional minority to derail an executive-branch appointment has become so taken for granted that it doesn’t merit a passing mention.

Politico, of course, is written for insiders and politics junkies, so there’s a plausible argument that its readers don’t need tutorials on the expansion of the filibuster, or the history of executive-branch appointments, in the way that readers of more mass-market publications might. And I don’t mean to suggest that, by noting these changes more dutifully, the press might prevent them—or, for that matter, that preventing them is the press’s responsibility.

But at the same time, failing to explore what’s happening—or reserving those explorations for big take-out essays, rather than threading them into day-to-day reporting—amounts to putting blinders on much coverage of politics. Writing about the Cordray case, the blogger Ron Replogle sketched out what happens when one side breaks with protocol in pursuit of a short-term victory:

It leaves the other side with the unenviable choice of letting itself be taken advantage of, renouncing the same norm itself in retaliation or violating some other relevant norm as a way of securing compensation for the other side’s misconduct (e.g., a president’s disregarding the norms governing recess appointments in response to a minority party’s unwillingness to allow a vote on one of his nominees).

That makes it perfectly rational, and not civically irresponsible, for political actors to adopt a strategy of “tit for tat” in the game of politics, doing in their next move something analogous to what the other side did on its last move. When both sides respond rationally to a transgression on the part of one side or the other, however, they invite retaliation that tears the fabric of benign mutual expectations that sustains a Madisonian political system. That’s how we end up with the kind of political dysfunction we’re seeing in connection with raising the debt ceiling.

The escalation of procedural partisanship is at the center of D.C. politics right now. But that escalation is incremental and persistent, while press attention to it is often scattershot: a pattern of neglect, followed by a burst of attention, then more neglect. Political coverage would be better—more comprehensive, more accurate, more insightful—if that escalation got the coverage it deserved.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Greg Marx is an associate editor at CJR. Follow him on Twitter @gregamarx.