US Senate Committee on Health, Education, Labor, & Pensions

Harkin Statement on President Obama’s Appointments to the NLRB and CFPB

Thursday, January 26, 2012

WASHINGTON—Today, Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor and Pensions Committee, spoke on the floor of the Senate in support of President Obama’s recent appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau.

Below are his full remarks, as prepared for delivery:

“Mr. President, I rise today to respond to some of the shrill rhetoric and outright misinformation regarding President Obama’s recent recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau.  When all the political grandstanding is done, at the heart of this dispute is the ability of these two agencies to carry out their congressionally mandated function: one is charged with defending the rights of consumers and the other the rights of workers.  Partisan obstruction and filibusters prevented confirmation of nominees to lead both of these agencies, which would have crippled their legal authority to act.  With the rights of millions of American workers and consumers on the line, the President did what was unquestionably his duty to preserve the functioning of two critically important agencies – agencies that are essential cornerstones of our effort to rebuild and restore our struggling middle class.

“At a time when our nation is engaged in serious soul-searching about the growing gap between the haves and the have-nots, the missions of the Consumer Bureau and the Labor Board have become particularly essential.  These are small agencies, but they are tasked with the vital responsibility of standing up for consumers and workers against Wall Street and powerful corporations.  Indeed, the true significance of the debate over the President’s recess appointments is not about legislative and executive power or the meaning of pro forma sessions, but about whether we will let the powerful and well-connected use the political process to rig the system, or if instead we will enact and enforce laws that give workers and consumers a fighting chance at a decent middle class life. 

“As a centerpiece of the Dodd-Frank bill to rein in the recklessness on Wall Street, the idea behind the Consumer Bureau is simple. We need a cop on the beat looking out for the best interests of consumers that use financial products – just as we have regulators looking out for the financial health of banks.

“A strong Consumer Financial Protection Bureau will ensure that consumers are not lured into debt through hidden fees. It will simplify disclosures and reduce paperwork so consumers are not faced with mountains of paperwork they can’t understand.  It will oversee providers of consumer credit such as payday lenders, which for years have acted like banks but without facing banking regulation. Additionally, as student debt surpasses credit card debt as the largest source of consumer debt, the Bureau can play a critical role in helping families better understand the increasing challenges of financing a college education as well as bringing some sanity to the private student loan marketplace.

“Despite these laudable goals, Republicans refused to confirm Richard Cordray, the President’s nominee to lead the agency, unless the President would agree to water down the law and weaken consumer protections.  Forty-four Republican Senators served notice that they would not confirm anyone – let me repeat that, anyone – to the position of Director unless structural changes were made to the Bureau that would effectively gut its ability to stand up for consumers. When the President refused, they filibustered and prevented an up or down vote on this nomination, leaving the Consumer Bureau unable to fully interpret and enforce the law.  As a consequence, Americans across the country were left in limbo with limited ability to stand up to big banks and financial scam artists.  Leaving the Bureau so powerless was unacceptable.  So the President has no choice but to use his Constitutional authority to ensure that this critical agency can continue to perform its important mission. 

“The ramifications of Republican obstruction were even more dire at the Labor Board, where the impending loss of a quorum of members meant that the Board would become totally inoperable if the President didn’t step in to fill the vacancies.  Like the Consumer Bureau, the NLRB is a government agency tasked with standing up working families.  In its very text, the Act creating the Board also establishes that the policy of the United States is to encourage the process of collective bargaining.  Senator Robert Wagner of New York, the Act’s author in 1935, explained that collective bargaining would increase the purchasing power of American workers and, therefore, aid our national recovery from the Great Depression.  The law was one of the cornerstones of a new American economic policy that created the largest middle class in history, gave rise to the economic boom that transformed the world, and brought economic security and a better life to generations of Americans. 

“Unfortunately, not everyone agrees with this mission.  Some very powerful interests think that a few at the very top should have a monopoly on power in our economy, and they should be able to set all the rules.  These interests have lined up allies in Congress to wage a relentless crusade against the Board.  In all my years in public office, I’ve never seen anything like it. 

“Last year, Republicans in the House held at least eight hearings specifically addressing the NLRB, and passed two bills to amend the NLRA to strip workers of their rights.  Republican elected officials have tried to defund the Agency, threatened the professional credentials and livelihoods of nonpartisan career employees, and even called on the Republican Board Member to resign in order to incapacitate the agency.  On the campaign trail, Republican Presidential candidates have raged against the supposed nefarious plots of the Board and its employees. 

“What are the great crimes that these dedicated public servants have committed?  First, they started a new initiative to make sure that workers are aware of their rights under the law.  In April, employers will have to post a notice about NLRA rights on the office bulletin board, next to other longstanding notices about the minimum wage, workplace safety, and other basic worker protections.  This hardly seems like an unreasonable burden.

“Second, the NLRB prosecuted a case against a company that allegedly retaliated against its employees for going on strike.  While the case was brought against a powerful company and became controversial as a result, prosecuting retaliation cases is, unquestionably, a necessary and important part of the NLRB’s responsibility.  

“Third, the NLRB enacted a rule to standardize timelines for union elections.  Under the NLRA, after workers petition for an election, the NLRB holds a hearing to decide who should be in the proposed bargaining unit and who should not.  Many employers flood that hearing with frivolous litigation and stall the election for months or even years while arguing and appealing over every minor detail their lawyers can imagine.  The NLRB decided to fix this problem and make sure that workers get a vote in a reasonable period of time.  The Board said that workers should vote, and then, if necessary, the ballots will be sequestered while the litigation drags on over peripheral issues.  The new rules don’t encourage unionization, and they don’t discourage it.  They just give workers the ability to say yes or no in a reasonable period of time.  Workers shouldn’t have to wait until a lawsuit is over before they get a chance to vote. 

“In response to these eminently reasonable and fair proposals, Republicans have attempted to shut the Board down by blocking all nominations.   Senator Graham vowed publicly to block all nominees to the Labor Board, even if it meant that the agency would cease to function.  In his opinion, “the NLRB as inoperable could be considered progress.”  To the thousands of American workers every year who rely on the NLRB to enforce the law and defend their rights, that must sound pretty cold blooded.

“In practice, disabling the NLRB would mean that American workers would have nowhere to turn if their rights are violated.  Thousands of American workers are fired every year for trying to organize a union in their workplace.  With the Labor Board out of commission, those workers might never get their jobs back.  If an employer or a union refused to adhere to a contract, there would be no NLRB to resolve the dispute.  The Labor Board also ensures that unions do not step outside the law in their interactions with workers or employers, and those cases would be stuck in limbo, too.  Perhaps that is why a Senior Counsel to the National Federation of Independent Businesses told Congressional Quarterly that “to have the Board totally shut down would be a travesty.”

“The President averted this travesty by appropriately exercising his recess appointment authority.   Indeed, the President showed restraint by only appointing nominees to agencies that would lose their ability to function due to Republican obstruction.  Acting to ensure the continued smooth functioning of government in these circumstances is President Obama’s Constitutional responsibility. 

“As Constitutional scholar Laurence Tribe has explained, the Constitution considered the possibility that Congressional squabbles would lead to paralysis and determined that – and I quote – “The Constitution that has guided our Republic for centuries is not blind to the threat of Congress’s extending its internal squabbles into a general paralysis of the entire body politic, rendering vital regulatory agencies headless and therefore impotent.  Preserving the authority the President needs to carry out his basic duties, rather than deferring to partisan games and gimmicks, is our Constitution’s clear command.”

“If my colleagues don’t like the NLRA or Dodd-Frank, they can introduce a bill and try to get support to change the law.  Of course, Republicans know that such a bill would fail miserably.  Instead, they are trying to short circuit the process laid out by the Constitution to pass legislation.  Under their theory, just 41 Senators could effectively repeal existing laws by simply denying an up or down vote on the President’s nominees.

“President Obama took a bold but necessary step.  Stepping in to protect ordinary Americans from the consequences of Congressional dysfunction is hardly an intrusion on Congress’s authority – it’s the essence of leadership.  Since President Obama was elected, Republicans have openly stated that their No. 1 goal is not to govern or legislate; their No. 1 goal is to prevent the reelection of President Obama   Republicans in Congress may have the luxury of playing these political games, but the President does not.  Americans are counting on him to do what is right, and that is unquestionably what he did.”

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