The system of federal regulation first launched in 1883 with the Interstate Commerce Commission has become a casualty of the Pennsylvania Avenue battle over nominations.
At the height of concern over product safety and lead-tainted toys, the Consumer Product Safety Commission doesn't have enough members to meet. The nation is facing the prospect of a presidential contest with no referee, because the Federal Election Commission is too short-handed to call a quorum. With the economy in peril, the Council of Economic Advisers is plodding along with a lone member. The National Labor Relations Board, the body that adjudicates disputes between workers and bosses, has only two of its five commissioners still on the job.
An explosion at a sugar refinery in Georgia took nearly a dozen lives in February, but the U.S. Chemical Safety and Hazard Investigation Board is missing two of its five members - one of them the chairman.
The Federal Mine Safety and Health Review Commission's two remaining members leave it one short of a quorum. Close to 200 nominees for federal appointments stand unconfirmed.
The federal government is running on fumes, and roadside signs suggest the next gas station won't come until January 2009.
"It's the worst last year of a two-term presidency since we created a two-term presidency," said Paul Light, an expert on federal nominations at New York University. "It's a real tribute to the problems of the Bush administration that [Bush's] eighth year is even worse than Clinton's."
President Bush squarely blames the Senate for failing to give his nominees an "up or down vote."
Democrats respond that some of his nominees are flatly unacceptable and that the president hasn't sought the "advice and consent" of the Senate.
Democrats charge that the federal commissions are not innocent bystanders caught in the crossfire between the White House and the Senate, but rather are targets of an administration happy to watch them die. "They could[n't] care less," said Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, where many of Bush's stalled nominations sit. "They dislike government. They dislike the way government works."
Bush has a "blind indifference," said Sen. Edward M. Kennedy (D-Mass.). "We didn't have this during the Reagan period or Bush I. It's unique and special now."
"Harry has a right to be angry about this," Senate Majority Whip Richard J. Durbin (D-Ill.) said, referring to Senate Majority Leader Harry Reid. "He has gone that extra mile, giving them 55 of their nominations in December when they wouldn't talk to us, because they were stuck on Steven Bradbury." (Reid's office said the number is higher: 84.)
Bush has nominated Bradbury to head the Office of Legal Counsel, which produced in 2002 the now-infamous memo advising that the torture of suspected members of Al Qaeda "may be justified."
Bradbury has not disavowed the memo; Democrats have refused to confirm him and have kept the Senate in pro forma sessions so that Bush could not use a recess appointment to put him in office.
Light said that Bush's ambivalence toward government regulation plays a role in the stalemate. "If the Consumer Product Safety Commission is not able to promulgate rules, is that a bad thing for an anti-regulatory administration? Probably not," he said. "If you're in an anti-regulatory mood, having a regulatory commission unable to regulate is not necessarily a bad thing, especially if it's going to regulate against industry."
White House spokeswoman Emily Lawrimore calls that characterization "off the wall." "The president held an event just two weeks ago where he called on the Senate to give the nominees an up or down vote," she said.
Durbin said that Democrats have offered to compromise with Bush, suggesting that the quarreling parties could agree on an equal number of nominees to be approved. "The way out is to have a fair apportionment of these vacancies between the parties. We've done that in the past. We could do it now," he said.
"That's the first we've heard of that offer," Lawrimore said after checking with White House legislative staff. She said the administration would be open to considering the plan.
"It's pretty disingenuous for them to say that," said Reid spokesman Rodell Mollineau. "We've consistently gone back to them with good offers that they keep rejecting."
Don Stewart, spokesman for Senate Minority Leader Mitch McConnell (R-Ky.), said the solution to the logjam is simple: "The leader controls the floor. If he wants to get [the nominees] through, why not bring them up for a vote?"
The Senate will try a new approach next week, when it takes up legislation that would give the CPSC a temporary legal quorum, despite its lack of commissioners. The quorum would allow the commission "to advance rule making, levy civil penalties and...force mandatory recalls," said CPSC spokeswoman Julie Vallese. "Those are three very important functions."
The NLRB is also hobbled, one member short of a three-person quorum. It continues to take actions through a creative parliamentary procedure but avoids controversial cases, said deputy executive secretary David Parker, because of concern that the pseudo-quorum would be the subject of litigation.
"We're still operating, but not at full strength for sure," he said. "I imagine if [the board] did something rather important, it would likely be challenged."
Employers and workers are currently battling over what constitutes an employee, Parker said. Unions want "supervisors" counted so they can expand their pool of members; employers oppose the effort.
Under normal circumstances, the NLRB would settle the issue. But because of its iffy quorum, Parker said, it won't rule on the case. The combatants will just have to wait.
Some Senate Democrats are willing to wait, too. "It's better to have fewer people on the commissions if the people who are nominated want to destroy the mission of their particular job," said Sen. Barbara Boxer (D-Calif.). "From my perspective, I'd rather have nobody."
By Ryan Grim