When the voters elect representatives, they expect the legislature to act on their behalf, and the public and legislature expects government agencies to act in accordance with laws the legislature adopted.  Issues that the public and legislators regard as ripe for action go through public hearings and drafting of bills for negotiation, refinement and ultimately a public vote.  This is standard civics.  

But the public’s control is unacceptable to a cabal of radical activist friends, and since their radical views cannot trump the public and legislators, they devised a corrupt strategy called “Sue and Settle” — where they collude with arrogant government employees sympathetic to their radical agenda.   

First, the government agency and radicals agree on a settlement for a lawsuit that the activists will file.  The settlement includes new regulations, financial award to the plaintiff, award of court costs to the plaintiff and penalties for transgressors of the new regulation.  In effect, the government agency gives away taxpayer money to fellow travelers and puts new regulations on the books – regulations that the public and legislature did not request or approve.  The EPA has enacted 100 new regulations through the Sue and Settle conspiracy.

In almost 100 “Sue and Settle” cases, courts have ordered adoption of regulations for which no public notice and no public hearing has been conducted.  In the courtroom, a “defendant” government agency is unwilling to mount a defense against the claims of a radical activist plaintiff.  Instead, the agency asks for the court’s quick order of the settlement decree that was negotiated in secrecy with the activists.  The public’s exclusion is evident. 

In such circumstances, any unbiased and competent judge would realize the court is being asked to collude in corrupt proceedings.  Unfortunately, many courts participate in this racket.  They have shown either remarkable stupidity or willingness to undermine the legislature’s rights of rulemaking through the usual public process. 

Since courts have proven incapable of policing themselves, the House passed the Sunshine for Regulatory Decrees and Settlements Act in 2012 — a bill which forces transparency into the decree and settlement process and which ensures the public has a meaningful chance to comment on regulations before they become effective.  

The Senate has neglected to take any action on this matter – presumably they tolerate the damage that Sue and Settle does to the public. 

From the public’s perspective, the courts and government agencies, as well as radical activist groups, have melded into a corrupt organization that seems worthy of a RICO investigation.  Of course our federal Department of Justice is not likely to care. 

Maybe the political masters intend to hold out for bigger fish? 

Alan Daley is a retired businessman who lives in Florida and who writes for The American Consumer Institute Center for Citizen Research