It wasn’t so long ago that a change in political power in the United States may have signaled a modest shift in policy direction within the context of a broad political consensus and stable set of laws and institutions. But today, many of those who win elections believe they have both the right and the obligation to revisit all the controversies of the recent past, toss out anything they don’t like and stick it to the losers in ways that help ensure they will never regain power again.
The latest manifestations of this histrionic political disorder can be found in the Republican caucus of the U.S. House of Representatives and among some of the newly elected Republican governors, who aim to use a serious budget crisis as a pretext for driving a stake through the heart of government, the labor movement and the “enemy” party. It’s not just the Republicans, however — this tribalism afflicts both parties and has been getting worse for decades.
You can see it not just in legislative battles, but increasingly in the federal appeals courts, where judges divide into predictable voting blocs on controversial cases, and court majorities think nothing of throwing out long-held precedents to reach preferred political outcomes. In the wake of cases such as Bush v. Gore and Citizens United, even justices of the Supreme Court are viewed as nothing more than political hacks.
The disease has spread to what were once considered fiercely independent, highly professional regulatory agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Leading the way has been the National Labor Relations Board, which is charged with overseeing collective bargaining in the private sector and like many independent agencies is structured to give a one-seat majority to the party of the president in power.
In recent decades, the NLRB has decided that graduate teaching assistants at universities don’t have a right to unionize, then do have them, and now don’t have them.
It has ruled that nonunion employees do not have the right to have a co-worker at disciplinary hearings, do have that right and, most recently, do not have it.
It has made it easier and harder and easier and harder again for temporary workers to organize.
And late last year, a new Democratic majority on the board indicated its interest in overturning a Bush-era ruling allowing some workers to challenge a card-check certification agreed to by a company and majority of its workers.
To most of us, these decisions seem rather narrow and technical. But in the furtive imaginations of labor lawyers, union organizers and business lobbyists, they are the first steps on the slippery slope toward either the end of capitalism or the extinction of the middle class. Whichever the case, they are the occasion for whipping up the troops for a holy crusade.
At the NLRB, the polite phrase for all this flip-flopping is “policy oscillation,” and academics, labor lawyers and even members of the board itself have complained about it for years. But since neither side is ever willing to forgo the opportunity of undoing the “wrongs” of the past administration, it never gets fixed.
“It’s a perversion of what administrative law is supposed to be,” said Marshall Babson, a management lawyer appointed to one of the Democratic seats on NLRB by Ronald Reagan. Although the board is not bound by precedent, he explained, it ought to have an obligation to provide a fact-based rationale — data that shows it’s not working — for any significant change in policy, rather than simply asserting that it would have decided a previous case another way.
It’s hardly coincidental that the “oscillation” became more commonplace after presidents began taking a different approach to NLRB appointments. During its first 40 years, presidents tended to appoint fairly neutral and respected mediators and academics and government lawyers.
That changed dramatically in the 1980s, when Reagan appointed a management lawyer who had complained publicly of the NLRB’s pro-union bias and a labor consultant who helped companies beat back union organizing drives. Since then, the tendency has been toward nomination of either staunchly pro-management or pro-union advocates. President George W. Bush used a recess appointment to install an executive of the U.S. Chamber of Commerce on the board, and President Obama has returned the favor with the former general counsel of the Service Employees International Union.
Whatever else you might say about these appointments, on their face they are hardly the sort to build public confidence that this quasi-judicial body will be neutral and impartial in deciding cases and adapting to the modern economy a labor law last amended, in any serious fashion, in 1947. The insistence on nominating strong advocates for one side or the other now makes it difficult, if not impossible, to win confirmations from an increasingly partisan Senate. A few years ago, this problem got so bad that 600 decisions were issued by a board that consisted of two people, all of which were declared invalid when the Supreme Court ruled that a minimum of three was required for a quorum on the five-member board.
And from there it’s only gotten worse.
The acting general counsel of the NLRB — arguably the agency’s most powerful position — is Lafe Solomon, who has spent his entire career as a staff attorney at the board, serving as counsel to both Republican and Democratic members. Recently, Solomon announced that his office would be more aggressive in seeking court injunctions against employers who try to beat back organizing campaigns by firing the employees leading them, which has become the favorite tactic for defeating unionization. Solomon’s reward for trying to enforce the labor laws is that he is now routinely denounced as a tool of “union bosses” by a number of business groups and called a “pinhead” by Bill O’Reilly while his nomination is now threatened by an almost-certain Senate filibuster.
Then, two weeks ago, anti-labor members of the House moved to strip the NLRB of its funding, with the chief sponsor telling his colleagues that the agency is a job-killing “New Deal relic.” Although defunding would have the effect of repealing the right to collective bargaining in the United States, it managed to get 176 Republican votes.
And of course there’s Wisconsin, where a newly elected Republican governor, with a newly elected Republican legislature, aims to “make history” by stripping public-employee unions of their collective-bargaining rights. Such “history,” of course, would last only until the next time Democrats come to power, when collective bargaining would inevitably be restored and expanded.
Sunnis and Shiites.
This is not the way things are supposed to work in an advanced industrial economy in a democratic society. Yes, elections have consequences. But winning an election by a couple of percentage points is not a license for repeal, revenge and permanent one-party rule.
Along with the authority to govern, political victory also carries with it the responsibility of stewardship over a system of rules, institutions and accepted norms of behavior that took centuries to develop, that are the reason for our success and that are now the envy of people in places such as Libya and Egypt.