The Washington PostDemocracy Dies in Darkness

Opinion The Biden administration’s ‘workarounds’ damage the machinery of democracy

President Biden during a White House Cabinet meeting, July 20. (AP Photo/Susan Walsh)
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In a job that keeps a person in regular contact with brilliant and ingenious engineers, one develops a deep admiration for people who run toward hard problems and devise inventive ways to solve them. When one of SpaceX’s recent private astronaut flights developed a sensor problem in a waste management system, flight managers quickly took the sensor offline and found “workarounds” for the hazard. And we all remember the glorious nerds who saved Apollo 13.

But what’s commendable or even lifesaving in operating complex machinery is problematic or even dangerous when applied to the machinery of democracy. Such attempts are hardly new, and no “workaround” was ever more flagrant than the persistent attempt to undo a presidential election result. But the pace and deviousness of these machinations have, if anything, increased under the new regime.

At summer’s end, the Biden administration directed the Labor Department’s Occupational Safety and Health Administration to promulgate an “emergency temporary standard” ordering all private employers of 100 employees or more to require coronavirus vaccination or face punitive fines. No seeking statutory authority, no rulemaking and comment process, just a sudden ukase from on high.

Faced with likely unanswerable challenges to the constitutionality of such a diktat, the White House staff chirped (meaning: issued a cheerfully triumphal tweet) that the OSHA maneuver was a “workaround.”

This end-run of all prescribed procedures joined a growing parade of such maneuvers. A new majority at the Federal Trade Commission in September peremptorily jettisoned a formal rule on vertical acquisitions that had been widely lauded for bringing clarity to merger decision-making. More than a year of internal deliberations and public comments were cast aside in days.

In fact, this particular move constituted a rare double workaround. Now, with no guidance as to which mergers are likely to receive FTC approval, many companies will opt for caution and never attempt them, sparing an agency overtly hostile to such transactions the work of actually studying proposals and building a case against them. Maybe “preemptive workaround” is a better phrase for this especially clever move.

On the legislative front, the ruling party has many advocates for chucking long-standing procedures, most notably the Senate filibuster. But as that’s proving difficult, maybe they can just intimidate the parliamentarian into calling immigration or pro-union labor law changes “budgetary” matters, and therefore legal for incorporation into a reconciliation bill. Call it the “involuntary surrogate workaround.”

The pandemic, which furnished abundant case studies in public sector incompetence, also offered countless workaround opportunities, and excuses for them. A White House approval of “booster shots for all” not only short-circuited the Food and Drug Administration’s “gold standard” approval process, it ignored a contradictory agency recommendation. Two scientists resigned in protest but, hey, what’s the fuss? It was just a simple workaround.

Ideas for redesigning the machinery of self-governance are always in order, and sometimes badly needed. But discarding or violating rules while they are still in effect is corrosive of the trust on which all depends. It furthers the already pervasive notion that, rules be damned, the fix is in.

In a recent campus appearance, Russian chess champion and human rights advocate Garry Kasparov surprised his audience with two answers, one to a question about threats to democracy, and another about how to lower the level of polarization afflicting American society.

Kasparov, who unlike today’s pseudo-socialists has the advantage of actually having lived in Utopia, replied to both questions not by espousing specific policies or issues but by defending process. He confessed error in his early support of Boris Yeltsin, whom he said was correct in opposing a return to communism but wrong in resorting to force to do so. Kasparov linked that action to the nation’s subsequent collapse back into tyranny:

“What we didn’t understand is that democracy is a process, not a result. The moment you go against the process, the moment you accept that your guy, who has the best intentions in this world, can violate the rules, can rig the result with a little bit of a tweak — it starts with little tweaks here and there — then that’s it.”

And a little later: “As I said, it’s about protecting the process … I’m really worried that you see on one side people say ‘Oh, since we lost, the election was rigged.’ On the other side you say, ‘Oh, we won, so we have to rig the system to make sure we will win next time.’”

Eschewing “working around” and returning to “working within” would be a step back toward the comity, community and public confidence we now see so little of.