There is an old adage that nothing dies in Washington, especially if it's a government program or agency. The wonderland otherwise known as our nation's capital specializes in creating temporary programs that never disappear. Legions of government enterprises live on well beyond the crises that birthed them. Some of these programs are popular, such as Social Security, which was actually supposed to be a temporal salve. Some have powerful patrons, such as the Tennessee Valley Authority. Almost none disappears. Ever.
In 1995, Republicans inaugurated their control of the national legislature by attempting to reverse the laws of political nature, and tried to eliminate two agencies of the federal leviathan. They zeroed out the budgets for these two relics, in what was a most remarkable effort. While the agencies did not have the gargantuan budgets, and thus the impact of these cuts was almost imperceptible, this bold step was astonishing in that it showed it is possible to retire government programs. At least for a while.
In the first year of the Obama administration, the Democrats revived the Administrative Conference of the United States, one of the two agencies eliminated by those bodacious Republicans. In the fine tradition of Dr. Frankenstein, they breathed new life into a bootless corpse. Unfortunately for those of us living outside the Frankenstein castle we affectionately call the Capitol building, the newly revived monster is already doing some damage.
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As reported in Roll Call, Paul Verkuil, one of President Obama's intrepid wallahs is using the Administrative Conference to clear the way for Mr. Hope and Change to cast off yet another one of those tiresome reform promises he made during his dash for power in 2008. We are all too familiar with the now-antiquated oath not to hire lobbyists, the obsolete pledge not to pay off campaign supporters with government spoils and the antediluvian vow not to use super-PACs. Those worthless warrants are merely the main floats in a non-stop parade of discarded reform promises. Mr. Verkuil started in May 2010 preparing the next betrayal of Obama's good-government platform with the proposed return of Midnight Rules.
Midnight Rules are those regulations issued by a president in the final days of his presidency. While sometimes the rules issued are consistent with the chief executive's oath to uphold the Constitution, often these rules are merely a way for an outgoing president – prevented by political reality from inflicting the full measure of his political agenda on the voters – to promulgate significant changes while the moving van is in the White House driveway. Sometimes the successor president is able to undo these last-minute indulgences, but not always. Obama, frustrated with the 100 Midnight Rules issued by George W. Bush, vowed to end the practice. The reform community, so enthralled with his audacity, swooned.
Alas, as with so many of the reform pledges candidate Obama made, we may soon be disappointed. Based on the recently released study commissioned by the Administrative Conference, it seems that Midnight Rules aren't so bad after all. Like their earmark cousins – another political artifice whose demise was falsely reported – they may seem be on the comeback trail.
The study, written by Boston University law professor Jack Beermann, gives the president cover to cast aside his pledge not to use Midnight Rules by characterizing many of the last-minute regulations as benign and routine and recommending only that "no major or potentially controversial rulemakings should be initiated after or close to the date of the election." That would not stop an administration from initiating each of their controversial yet undone regulatory schemes just prior to the election date, and, worse, it leaves the president as the arbiter of what is major or controversial. An administration constantly offending the sensibilities of large segments of our citizenry – as we have seen most recently with their efforts to force Catholic organizations to pay for abortifacient drugs – does not seem the appropriate adjudicator on this matter.
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In the event the American voters decide to return our nation's leader permanently to the golf courses of Hawaii – in part because of his overburdening a faltering economy with onerous regulations – the president most enthralled with inviting the federal government into every aspect of our lives will have a free shot at promulgating to his heart's content.
When one considers that his predecessor Democratic regulators-in-chief issued 40 percent more regulations than their Republican predecessors, it is frightening to contemplate what might transpire in December of this year.
Obama's followers are willing to forgive an unending litany of perfidy. Even many who are seriously committed to government reform, and who believed his oft repeated pledges to make real change, seem willing to forgive the constant renovation of his positions. The return of the Midnight Rules may even occur in the dead of the night, but at least unlike the other broken promises in the president's reform agenda, this one is likely to be a harbinger of his exit from the political stage.