By Allison Stanger, Special to CNN
Editor’s note: Allison Stanger is the Leng Professor of International Politics and Economics at Middlebury College and author of the forthcoming ‘Life, Liberty, and the Pursuit of Leaks: The Story of Whistleblowing in America.’ The views expressed are her own.
The chorus of voices condemning the undemocratic tactics of the Republican minority who forced a government shutdown are right on target. The Affordable Care Act was voted on, the Supreme Court upheld it, and efforts to repeal it failed. As Fareed Zakaria noted today, refusing to allow the government to function until you get your way is not how a democracy is supposed to work.
But the current embarrassing spectacle is no new development – the Republican Party in the Obama years has previously taken a win-at-whatever costs approach in seeking to overturn laws they don’t like by refusing to implement them.
Exhibit A for this approach is the Republican response to Dodd-Frank. President Barack Obama signed the Dodd-Frank Wall Street Financial Reform and Consumer Protection Act into law on July 21, 2010. Its full title captures its intent: “An Act to promote the financial stability of the United States by improving accountability and transparency in the financial system, to end ‘too big to fail,’ to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes.”
The Dodd-Frank legislation weighed in at 2,300 pages, and it left federal regulators to interpret the details and churn out around 400 new rules. This gave Wall Street lobbyists plenty of room for maneuvering, and the Republican Party and its supporters have responded with filibusters and lawsuits, meaning more than two years after the bill was passed, only a third of Dodd-Frank’s regulations were in place.
The Consumer Financial Protection Bureau (CFPB) was a focal point in the struggle to uphold Dodd-Frank, yet despite its resonance with the Obama administration, the CFPB was one of the most contentious aspects of the 2010 Dodd-Frank legislation. It inspired 44 out of 47 Republican Senators to write a letter to President Obama in May 2011 saying they would not confirm any nominee to head the Bureau until structural changes had been made. Forty-four Republican Senators, that is, committed themselves to undoing legislation that had already been passed.
Their demand? Rewrite important parts of Dodd-Frank and change the bureau itself before they would approve its first director. The White House sought to counter this threat by announcing its choice of Richard Cordray as the CFPB’s first director in July 2011. Since the bureau could not move into full operations without a director, when the confirmation process stalled, President Obama made a recess appointment in January 2012. Obama’s opponents raised the stakes and countered with a lawsuit that challenged the constitutionality of the recess appointment. As a result of all this, Cordray wasn’t confirmed until July 2013. And the reported price for allowing a vote on his appointment? Democrats had to agree to leave existing filibuster rules in place in exchange for Republicans permitting government to function.
The recent attempt to use the threat of default to undo the Affordable Care Act mirrors the Republican attempts to block the institutionalization of the CFPB. In both instances, rather than implementing laws that have been passed, Republicans instead engaged in a focused effort to undo what was already on the books by other means. But it is one thing to revise or repeal legislation that is no longer working as intended. It is another thing entirely to attempt to subvert law that has yet to be tested in practice.
So why are the Republicans so flummoxed by the idea of the CFPB becoming operational or the ACA becoming law? They see both as a power grab by Democrats that expands government in undemocratic ways. They believe they are thwarting an ever expansive and expensive nanny state. The problem with this reading of history is that it implicitly asserts that only some laws that are passed following the rules outlined in the Constitution are valid and others are not, the antithesis of constitutional democracy and the rule of law. It is not the role of one political party to declare a law unconstitutional; that responsibility resides with the Supreme Court.
Public opinion chimes with constitutional precedent. A poll conducted by the Kaiser Family Foundation in August, before the current crisis had fully erupted, showed that 69 percent of Americans believe that “using the budget process to stop a law is not the way our government should work.” More recently, the GOP super PAC Crossroads GPS surveyed ten states likely to have close House and Senate races and found that among Independents, 58 percent opposed shutting down government to stop implementation of the ACA.
Republicans in Congress have crossed lines that should not be crossed in recent years. When a bill becomes a law, both parties must abide by it unless it is repealed, modified, or declared unconstitutional by the Supreme Court. The Republican Party’s professed reverence for the Constitution and the glorious tradition of constitutional democracy in America is praiseworthy.
But their actions are not in keeping with their words.