CAPITAL: CFPA in Jeopardy

Brown, soon to be sworn in as the only Republican in the Massachusetts Congressional delegation, made it clear in his campaign that he intends to quash the Senate’s healthcare bill. By logical extension, many in Washington believe that he will take advantage of Senate rules to prevent the creation of a Consumer Financial Protection Agency. While the CFPA has gotten significantly less press than the healthcare debate, many believe it is a more ill-considered piece of legislation than healthcare. Unlike healthcare (which Democrats are universally supporting), CFPA consistently has had a number of detractors on the Democratic side of the aisle. Even before the election two weeks ago, passage of the CFPA legislation was by no means assured. In fact, The Wall Street Journal reported that Senate Banking Committee Chairman Christopher Dodd (D-Conn.) had agreed with Ranking Member Richard Shelby (R-Ala.) to axe the agency from the final Senate bill. It’s the differences between our two houses of Congress that make the political drama in the Senate edgy and interesting (OK, maybe not for you, but for the pointy-headed types like me). In the House of Representatives, the majority tends to rule the roost. The party in power can limit debate and move legislation quickly to the floor for a vote. Not so in the arcane and rule-driven world of the Senate. As the more “deliberative” body of our bicameral legislature, it operates under rules designed to slow things down (i.e., temper the rashness of the House) such that its members can take a more considered approach to the legislative process than is possible in the House. Accordingly, current Senate rules in place since 1975 require a 60-vote supermajority to limit debate on a bill (a process called “cloture”) and move it to a vote.

As of now, there are 60 Democrats in the Senate, enough to invoke cloture on a bill for which their is no bipartisan support and move it to passage. However, once Brown is sworn in, Senate Democrats will control only 59 seats; i.e., the 41 Senate Republicans will be able to keep debate on a bill open indefinitely by opposing cloture and talking the bill to death (a process called a “filibuster”). Interestingly, they don’t even need to actually talk about the bill in question — they can stand up and read the phone book if they like.

So what does all this mean? With the mid-term elections looming and Democrats in seats thought to be as “safe” as Massachusetts’ suddenly rethinking constituent relations and campaign strategy, it is unlikely the bigger financial reforms (like CFPA) proposed by the administration will make it into a Senate bill without being significantly watered down. The 41 Republicans and handful of Democrats appearing opposed to a new bureaucracy the size of the proposed CFPA significantly weaken its chances for a Senate vote.

Even if the CFPA makes it into a Senate bill, my money says it will never survive a cloture motion.