Although the Senate is much given to admiring in its members a superiority less obvious or quite invisible to outsiders, one Senator seldom proclaims his own inferiority to another, and still more seldom likes to be told of it.
— Henry Brooks Adams, The Education of Henry Adams

The Republicans’ newest way of countering criticism that Congress spends more time on recess than it does working occurred when it went home for the Christmas holidays. The criticism occurs because in 2011 Senate and House Members were in session for 112 days, according to the Library of Congress, leaving them 253 days of free time. (These numbers are imprecise. They may have inadvertently worked a few more days than shown.) To counter the impression that they do not work very hard the Republican Senators agreed to pretend they were working when most of them were spending the holidays away from Washington. They agreed that when they were gone they would not be gone.

One explanation for their action could have been a desire to be paid while out on recess but Senators get paid no matter how they spend their time so that was not a plausible explanation. The real reason Republicans pretended to be working when they were vacationing was because they didn’t want other people in Washington to be working when they were vacationing because it made them look bad. By senatorial fiat, they said they would pretend to be at work while they were on vacation but, as when they were formally at work in Washington, they would follow their long established tradition of doing nothing. The only difference between doing nothing when they were in town and doing nothing when they were out of town was the geographical location of where they did nothing. Here is how it worked.

On January 6, 2012 (and other days were similar) the Senate met) at three seconds after 11 A.M. and adjourned 29 seconds later. Since it had a 29 second session that day it was not considered to be out on recess even if assorted Senators around the country were playing on swing sets or teeter-totters the way juveniles do when they are out on recess. By pretending to be working when playing, they hoped to keep two other federal agencies from doing any work, work that would make the Senators look lazy. The two agencies that threatened to embarrass the Senators were the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (C.F.P.B.)

The N.L.R.B. is charged with, among other things, investigating and ruling on cases that involve unfair labor practices and conducting elections for labor union representation. Because of the way it is structured and a 2010 U.S. Supreme Court decision, the NLRB can only decide cases if at least 3 members of its 5 members are in place. Effective January 1, 2012 the board would only have had 2 members and, thus, would, like the Senate, not have conducted any business. By pretending not to be on recess they hoped to prevent the President from making recess appointments that could only be made when the Senate was not in session. The President was not fooled. He made three recess appointments so that the board could perform its statutorily assigned duties in 2012.

Similarly, the C.F.P.B. was unable to perform all of its statutorily assigned functions because it lacked a director. The agency was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. All the Republicans in the Senate opposed the passage of that Act and figured out that by filibustering the appointment of a Director, whose appointment was critical to the functioning of the agency, they could accomplish indirectly what they could not accomplish directly. As a result, the President made another recess appointment in order to get the agency up and running.

Republicans were, of course, furious, since as far as they were concerned the fact that they were not conducting any business during the time they were away from Washington was no different from how they behaved when they were in Washington and they should not, therefore, be considered to be out on recess. Furthermore, by enabling the agencies to perform their assigned tasks, the President thwarted Republican attempts stop the functioning of those agencies.

The Republicans will almost certainly sue to try to invalidate the recess appointments. For them it is a matter of setting a precedent. If every time they do nothing they are deemed to be on recess then a court could easily find that the Senate was on recess all last year except for the occasional petulant outbursts from Mitch McConnell. The President would then be free to get all sorts of things done that the Senate was mindlessly blocking and an enlightened public would soon discover that the Senate was a useless body with which we could, as we have in recent times, easily do without.

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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