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.
Legislative Arbitrage
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.
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