Throughout history in a republic, legislative processes are characterized by a marshaling of forces and opinion for a bill and then the voting on it, by the duly elected representatives. Given passage, then begins the enforcement phase with the persons or agencies charged with carrying out the dictates of the bill putting it into practice. This is what we thought we knew as the democratic process.
However, a new tactic is being employed by the GOP to nullify or thwart any and all laws that they do not like or agree with (some going back to the New Deal) where they have not been able to stop or reverse the enactment via the normal legislative process. Make no bones about it, this tactic is nothing more or less than a perversion of the democratic process.
Rather than accept the majority decision of the duly elected legislators and the signing into law by the sitting president, the new GOP (not your father's Republican Party) have devised ways to insure that these laws will never come to pass (at least not in the form or function intended). And this does not relate to just recent laws, but in furtherance of their far right agenda, they have devised methods to blunt or render ineffective agencies they despise and have not been able to dispose of in the normal legislative ways. Examples are the NLRB (National Labor Relations Board) and the EPA (Environmental Protection Agency) established respectively in 1934 and 1970. The latter signed into law by a Republican president.
On their face one would think that these agencies are all virtue and no sin. The NLRB is charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices and the EPA is charged with protecting human health and the environment (clean air and water). But to the far right these agencies are evil incarnate, stunting economic growth and encumbering and smothering our businesses with a myriad of regulations. Under the mantle of free trade and a libertarian bent towards self-regulation (actually no regulations) they have strategize a relentless campaign of undoing agencies and/or laws they do not believe in.
And the GOP has embarked on a multi-pronged strategy proving that they can walk and chew gum at the same time. Away from the federal level in well over twenty states there is a campaign to install right to work laws, which mean in essence that employees cannot be compelled to join a union even in a shop which has voted in a union. In other states, such as California, there is a serious movement to outlaw the automatic payment of union dues from employee paychecks. These efforts are directed at weakening the power of unions long a Democratic party bastion.
There are two techniques or methods being employed by the GOP to nullify undesirable legislation. The come under the newly coined labels of Legislative Capture and Legislative Arbitrage.
Legislative Capture is played in several ways. Primary among them is the complete withholding or the allocation of insufficient funds to a targeted agency or department. Thus not allowing them to perform their mandated job. So the despised legislation or agency remains but they are unable to do their job. This is an abstract form of starvation or as Grover Norquist, conservative activist and lobbyist famously quipped "I'm not in favor of abolishing the government. I just want to shrink it down to the size where we can drown it in the bathtub."
Other tactics employed to "capture" laws that are disliked is to "salt" the boards or senior positions with conservatives who are instructed to do nothing or, at minimum, thwart or delay the implementation of any actions. The extensive use of the filibuster in the Senate has gone from being used primarily to prevent "activist" judges from reaching the bench or limiting unacceptable appointees to the administrative branch, to withholding confirmation of any and all nominated individuals for office. Thus the only way left to an administration to make appointments is to use the recess appointment power given to the President under the constitution.
To obviate the recess appointment the Republicans have resorted to the ploy of having a Senator or two gavel the Senate into session every three days or so, so as to have that body remain in continuous session and deprive the President of this appointment right. This has led President Obama to the recent appointment of three members of the NLRB (which by law could not operate without a quorum of at least three members and was limping along with two) and the head of the Consumer Protection Agency established under the Dodd-Frank Act which is high on the GOP hit list.
The frustration of Mr. Obama in having spent three years attempting not to disrespect the GOP legislators and find an accommodation has resulted in his abandoning his attempt to reason with the Party of No!. He moved on his appointments in spite of the Republican claim that the Senate is not in recess. In doing this the President has been castigated by a former Attorney General, under Reagan, Edwin Meese, numerous GOP legislators and the chattering class opinionators such as Rush Limbaugh who said that he has "pissed" on the constitution.
The second tactic in the Republican war on all that is legislatively evil is to approach an administrative individual or agency with the threat that they will be encumbered by a continuous barrage of legislative hearings and legal challenges. They are threatened with a small army of highly paid council. The agency is threatened with the entanglement of continuous and expensive legal battles that will consume their resources and divert their attention from the business at hand. This threat, they are told, will not be carried out if the agency modifies their rules according to the guidelines proposed by the GOP.
As with the war on terror which has become a conflict without end, the "game" of politics has become a continuous war. One without end which is seeing our democracy eroded and perverted by a relentless party who cannot accept any set-back to their agenda.
Gene Altshuler is active in Democratic politics in northern California, has published numerous articles and commentary on politics and the political process and is the editor of the Democratic-Chronicles.