Speeches to lawyers' groups are among the least fun to give. For one thing, if you get a detail wrong someone is sure to point it out. For another, most lawyers (and judges) have quasi-professional commitments to impassivity in their facial expressions.
Tough audience indeed.
In a pair of recent outings before collections of general counsels and their outside firms I have had some limited success in coaxing a raised eyebrow here or there. History is helping me: the history of presidential second terms and of Mount Vesuvius.
The long, sad history of presidential second terms is well known. They are usually dreary affairs full of scandal and dashed expectations. President Obama's legislative second half seems doomed already, with gridlock a certainty on everything but immigration unless and until the president leads his party to a highly unlikely set of sweeping wins in the midterms of 2014. Even if the president has a very good "6th year itch" cycle, his party is still unlikely to pick up enough seats to get control of the House or a filibuster-proof majority in the Senate. It is far more likely that the average result of such elections --a significant "thumping'" as George W. Bush called his in 2006-- will occur and stalemate will continue through 2016.
In Congress, that is, but not in the agencies. In the vast expanse of the federal bureaucracy, second terms are where second teams breathe a second wind into the aging Administration's political aims.
This is what I told my lawyer colleagues: The start of second terms bring the exit from the Administration of the first team, and not just from the most visible posts, but up and down the agencies' organization charts. General counsels leave for the private sector. Assistant secretaries head home to rekindle careers or political ambitions. New leadership has to be found but the job seekers from outside the Beltway are neither as numerous nor as talented as they were in 2009 (or 2001 or 1993 or 1981.)
So administrations turn to the second team that is already waiting in the wings --the deputy assistant secretaries, the associate general counsels, the special assistant cadres. Younger, eager, experienced and typically very smart, they are willing to step up and step into the vacant jobs. Once there, what do they do in the absence of big legislative battles to win?
They regulate, of course, and leave their marks on the Federal Register and the Code of Federal Regulations. They will breathe a second wind into President Obama's era of massive, growing, gargantuan government, and they will be as proud to have done so as I and other veterans of the Reagan years are proud to have done our part to shrink the government as the young second-string of the late '80s.
The coming collective effort of the replacement Obamians is the regulatory Vesuvius I mentioned above: the looming explosion of rulemakings, notice-and-comment proceedings and administrative edicts that will rain down on the private sector with all of the destructive force of a volcanic eruption. Paper, not lava, will flow down and cover the land.
It has already begun. And despite these early rumblings and quakes, private sector businesses are ignoring the signs just as folks living in the vicinity of Vesuvius did in 79 A.D.
The Friday before Easter the EPA announced it was moving ahead with the publication of its draft "final rule" on the sulfur content of gasoline. Long stalled at the Office of Information and Regulatory Affairs within the Office of Management and Budget, the launch of this massively expensive exercise in ideology marks the beginning of the real work of the president's second term: the tightening of the green grip over everything.
This single rule will raise the cost of every gallon of gas by at least a nickel and perhaps as much as a dime--forever. Calculate the cost of that on your pocketbook. Then add in what it will do to the price of everything you consume. Welcome to the president's encore production of Out Of Control Government.
Of course regulation eruptions will occur across the entire vast mountain range of agencies. Just visit www.regulations.gov to see for yourself what is in the long, long, and jammed-full pipeline.
This is great news of course for lawyers like me and my partners and associates who must translate this vast blizzard of paper into actual guidance for clients. My colleague Liz McNulty, for example, stands watch over the Consumer Products Safety Commission and the EPA as well as the endless birthing process of California's "Green Chemistry" rules, trying to keep clients in business and far from the new rules' jagged edges. She will have to be twice her busy self soon.Cyrus Wilkes specializes on the agenda of the U.S. Army Corps of Engineers and has developed skills in the arcane world of conservation easements which is as obscure as the Rule Against Perpetuities, but clients must comply.
This is the way it is and will be for as long as the House of Representatives refuses to attach "riders" to spending bills that ban new rules --a favorite tactic of House Democrats in the second term of Ronald Reagan, when the Gipper's second team was busy giving his second term a second wind. Those Dems of that era had no taste for standing aside, and the House GOP of 2013 ought to follow their example.
Not likely, I told my lawyer friends. Much more likely that the House GOP would play a longer game, and that businesses would have to stay alert and embrace the new rules as best they could.
No wonder the speeches generated some smiles at the end. The bottom line is that the lawyers are going to do pretty well through this crack-up.
But not the overall economy.