If tomorrow's results follow the polls, the United States will have an extraordinary opportunity simultaneously to close the book on what is probably the third worst Administration in history - let's hear it for James Buchanan and Andrew Johnson! - and redefine the shape of American politics for generations.
Of course, the Bush Administration wants to make the book closing hard. As the Washington Post reported last week: "The White House is working to enact a wide array of federal regulations, many of which would weaken government rules aimed at protecting consumers and the environment, before President Bush leaves office in January." Their hope, it appears, even if Senator Obama is elected President, is to leave a legacy of deregulation that can be overturned only through a new set of lengthy and complex administrative proceedings that might not be a new Administration's highest priority.
But here's the most important statute you have never heard of: the Congressional Review Act of 1996 (CRA). It creates a fast-track congressional procedure that allows Congress - with a cooperative President - to veto administrative regulations with which it disagrees.
Under the CRA, the Office of Management and Budget must provide Congress notice of all regulations that have been promulgated as "final rules." Final rules that qualify also as "major rules," that is, rules with "an annual effect on the economy of $100,000,000 or more," cannot actually go into effect until Congress has 60 days to review them. If Congress adjourns for a new session within 60 days - as it will do this fall - then the review period starts anew 15 days into the new Congress. Hence, any Bush "final rules" that are also "major rules" cannot take effect before he leaves office. According to the Post, this includes nine proposed regulations, including "rules governing employees who take family- and medical-related leaves, new standards for preventing or containing oil spills, and a simplified process for settling real estate transactions."
But even if the so-called "non-major rules" do take effect, Congress can still overturn them through the CRA fast-track procedure. They need only pass a joint resolution to do so, and the new President has to sign it. This is how the Republican Congress undid the Clinton Administration ergonomics rule in 2001, and it is how a Democratic Congress should undo any Bush Administration attempt to entrench its feckless approach to labor, health, and environmental issues.
But this is also a time to think forward. Many Democrats will surely take the position, voiced eloquently on Huffington Post, that the time has come simply to ignore the Republicans. I disagree - to a point. Yes, the GOP should not be empowered to veto changes in the direction of American public policy that enjoy the widespread support of the American people and that are desperately needed to address the critical challenges of our age. The political health of the nation, however, really depends on re-empowering a genuine center - a group of people who care more about results than theories, who can coalesce around some basic public values, even if they disagree on the precise contours of this or that policy.
The trick here, however, is to redefine the center. Since 1981, virtually anyone has been labeled a centrist or a moderate who does not subscribe to every single plank of the political platform of the radical right. A "leftist" is apparently anyone who does not think the enrichment of large corporations should be the singular goal of all public policy or that victims should not have to carry rape-induced pregnancies to term.
This is nonsense. The center should not be regarded as some magic midpoint between Focus on the Family and the Democratic Leadership Council. There need to be seats at the table for Americans allied with organized labor, ashamed of our national inattention to poverty, appalled at what passes for public education in too many inner cities, dedicated to full economic equality for women, and worried about the creeping theocratization of virtually every aspect of civic life. We need to have supporters for Supreme Court Justices who go beyond resisting the most crabbed readings of constitutional rights and the most expansive interpretations of executive power, and instead want to see human rights visionaries on the Court who embrace the ideal of a "living Constitution" with the same fervency that Justice Scalia brings to his own agenda.
I think, "Empower the moderates," might be an excellent slogan for an Obama Administration, from Iran to Latin America to the United States itself. But moderation must not be defined as a slightly less craven form of fealty to the agenda of corporate America. It must be defined as much by the ambitions of the genuine left as of the far right. Navigating the path to consensus on that terrain is a task I would eagerly entrust to a hand as steady as Barack Obama's.