The plan happens before the election---Congress is holding pro forma sessions now

Legislation can be passed then

(CNSNews.com) – Senate Majority Leader Harry Reid (D-Nev.) took to the Senate floor during a “pro forma” session on Dec. 23 to pass a two-month extension to the payroll tax. President Barack Obama, however, this week claimed that a pro forma session means the Senate is practically in recess, opening the door for him to make appointments whenever he deems the Senate is out of session.¶ In justifying the appointments made on Wednesday, Jan. 4, while the Senate was in pro forma session, Obama spokesman Dan Pfeiffer said that the Senate was “effectively” in recess because “no Senate business is conducted.”¶ “The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks,” Pfeiffer wrote on the White House Web site on Jan. 4. “In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted.”¶ However, the Senate did conduct business during a pro forma session, with Majority Leader Reid leading the unanimous consent proceeding to pass the two-month payroll tax extension.