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, or constitutional, legislative process, that is, the democratic process.
NULLIFICATION: The Never Ending War with the left.
How does one obviate a law that cannot be undone by the usual democratic processes? How can a legislator hold his or her head high, having sworn an oath to uphold and defend the constitution, when using every sneaky and underhanded method to undo it?
Throughout history, in a Republic, to enact a law there first has to be a marshaling of forces and opinion for a bill, and then voting on it by the duly elected representatives. This characterizes the legislative processes. 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, or constitutional, legislative process, that is, 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 just to recent laws, but in furtherance of their agenda, the GOP have devised methods to blunt or render ineffective agencies they despise and laws they abhor, but have not been able to dispose of in the constitutional 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.
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). On their face one would think that these agencies are all virtue and no sin.
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 run counter to their philosophy of government.
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 that has voted to unionize. In other states, such as California, there is a serious movement to outlaw the automatic deduction 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, what is in their eyes, undesirable legislation. They 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 that an agency remains in force but they are simply 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." Or as my favorite blogger, Margaret Philpot, recently said, “Just small enough to crawl into my uterus.”
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 at minimum, or actively 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 for a few minutes, so as to have that body remain in continuous session and deprive the President of this appointment right. This has called into question President Obama’s 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 that 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 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 a continuous barrage of legislative hearings and legal challenges will encumber them. They are threatened with a small army of highly paid council. The agency thus 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.
Make no bones about it, these tactics are nothing more or less than a perversion of the Democratic process. While they may not be illegal in the purest sense of the word, they are a violation of the spirit of the law.
As with the war on terror that has become a conflict without end, the “game” of politics has become a continuous war. Not an acceptable tension between two parties with different visions of the role of government and with a unified aim of collectively governing a great nation as it has been in the past. This “game without end” is seeing our democracy eroded and perverted by a party who cannot accept any setback to their agenda and vision of government.
We are fast becoming little more than a banana republic and a laughing stock, all for the dubious honor of a recalcitrant conservative party pushing it’s agenda over common sense. To say that the art of compromise is nonexistent is to under state the situation. Compromise has become a pejorative, and warfare has replaced governing.
The GOP will gladly accept a dysfunctional legislative branch that they have literally tied into knots and thus is not able to perform its constitutional role. That this is seen as a victory in the game of politics is more than sad. But politics is not a game; it is a deadly serious process that directly affects the lives of us, its citizens and indirectly the rest of the world.