A related problem that he raises comes from a deeply disturbing New Republic article by Jeffrey Rosen in which he argues that the overturning of Roe v. Wade may be the least of our problems with a Bush-appointed Supreme Court:
In fact, what is at stake in the election is not the future of Roe v. Wade, school prayer, or any of the culture-war issues that have inflamed the country since the 1970s. …If Bush wins, his aides seem determined to select justices who would resurrect what they call "the Constitution in Exile," reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response.The “problem” that conservatives want to address is that since the New Deal, the courts have allowed an “expansive interpretation of Congress's power to regulate interstate commerce, which the Court extended to include any activities that might affect commerce indirectly.” This allowed the federal government broad discretion to regulate health, safety, the environment, and the workplace. Republicans would like to roll the clock back to the days when such intervention was unconstitutional. Although the Rehnquist court has struck down 33 federal laws since 1995, the highest annual average ever, the moderates (Justices Sandra Day O’Connor and Anthony Kennedy) have kept the court from repealing any major environmental or workplace safety laws. And there are plenty of lower court Republican-appointed “candidates” for the Supreme Court whose previous actions show that they would be ready and willing to declare the Occupational Safety and Health Act or various environmental laws unconstitutional.
“In short,” according to Rosen, “the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.”
OK, now all of this is bad. Very bad. But my friend Kevin is approaching despair, mainly because the Republicans'cowardly refusal to stage a frontal legislative assault on OSHA or environmental laws, preferring to use stealth attacks instead to undermine protections by issuing or weakening complicated regulations behind the scenes or by passing obscure laws that few will notice and even fewer will understand like the Data Quality Act (unless, of course, you’re a Confined Space reader where you’ve read about the dangers of the Act here, here, here, and here.)
I don't have a clue how to make this stuff simple enough that it becomes an electoral winner for liberals. Eventually, of course, when it becomes clear what conservatives are up to, they'll lose public support. But it would be a lot better if we could make it clear now so we don't have to clean up the mess it leaves in another decade or two.How do you make this stuff simple enough? Well first, lets look at a bit of history. I remember well how the Republicans learned the lesson that stealth works better than frontal attacks. After the Gingrich revolution in 1994, Representative Cass Ballenger (R-NC), loaded his committee with a bunch of new congressman who had largely been elected on anti-regulatory platforms, and one of whom (Roger Wicker, R-MS) suggested that it might not be a bad idea to abolish OSHA. Ballenger introduced measures to eliminate NIOSH, merge OSHA and the Mine Safety and Health Administration, direct one-third of the agency’s funds for non-enforcement programs, allow employers to fix violations before being fined, force employees to take their safety and health complaints to bosses before contacting OSHA, and drop fines based on the catch-all general duty clause came under fire.
I'm just not sure how to do that.
Ballenger was so pleased with his party’s recent victory and confident of success that he boasted to the press that his committee was so solid that it could probably repeal motherhood if they so desired. What Ballenger ended up with, however, was a political and public relations nightmare.
Every time he held a hearing on his proposals, every seat in the hearing room filled early in the morning with miners, dressed in full gear, who had driven all night from the hollows of West Virginia. Miners and other workers held rallies outside and filled reporters’ notebooks with stories of co-workers and family members killed in the workplace. Stories were beamed back to the 6:00 news in hometowns across the nation. A button with a “Wanted” poster displaying Cass Ballenger’s face became the hot item in Washington.
What had happened? Instead of a battle about OSHA and burdensome regulations, we created a story about workers.
To make a long story slightly shorter, Ballenger’s legislation never went anywhere, and no anti-OSHA legislation has been seriously considered since. (Which isn’t to say they won’t try again this year.)
Therein lies the “clue” that Kevin is looking for “to make this stuff simple enough that it becomes an electoral winner for liberals.” The first thing we do is stop playing the game on their fields, using their rules. We don’t talk about laws and regulations. We talk about dead workers and sick kids. We talk about poisoned water and hunting and fishing areas that are no longer accessible.
We can do this because we’ve done it before. Ballenger’s attack on OSHA was only one small part of the Republicans’ legislative assault on the regulatory state in the mid-1990s. Those attacks were largely stopped by a strategy created by the newly formed “Citizens for Sensible Safeguards,” a brilliantly named organization designed to fight Republican attempts to gum up the regulatory process in ways that few mortals could really understand. Instead of trying to explain the intricacies of the regulatory process, CSS simply held press conference after press conference featuring the families of workers killed on the job and parents of children killed by tainted food, asking why their local Congressman wasn’t doing something to protect people. The stories didn’t play well with the jaded national press, but the press from the victims’ local areas ate it up. Few of the Republicans’ proposals were passed.
Fast forward back to the present. We have a mission to complete before 2008, and preferably before 2006. This country is being overrun by a level corporate rapaciousness not seen since the early days of the last century, aggressively supported by Republicans in Congress, the White House and the cabinet agencies.
As Kevin illustrates, we’re facing attacks in Congress with bills that no one can decipher until it’s too late, regulatory attacks from deep within the agencies that few notice and fewer can explain before its too late. And we’ll soon be faced with Supreme Court nominations of judges who will oversee a catastrophic dismantling of the protections that workers, families and communities have come to take for granted over the past 75 years. Our mission is to put a human face on these actions. We need to replace the laws and regulations with the faces of families who have lost loved ones in underregulated workplaces, parents who have lost children from eating unmonitored food, children sickened from inhaling polluted air that has damaged their lungs.
Safeguarding the health and wellbeing of our families, protecting us from those who would do us harm, destroy our communities, and rob us of whatever control we still have over our lives – these are issues that strike at the very heart of traditional American values. And if we can’t make clear to Americans in red states and blue states that uncontrolled corporate attacks on their loved ones -- made possible by the Republican party -- are a far bigger threat to them than two women who want to get married in San Francisco, then we really don’t deserve to win any more elections.