Pre-Emptive E. Coli

Sens. Barack Obama and John McCain have both spoken of a need to review every item of the federal budget upon election. A review of consumer protections at many regulatory agencies might also prove necessary. If E. coli conservatives [1] are "ideologues who won’t accept even the most compelling case for government regulation," then Bush's last few months in office may be those conservatives' best chance at solidifying a legacy of diminished safety regulations. In this case, a "doctrine of pre-emption" entails protecting corporations from the imminent threat of the American consumer.

As Alicia Mundy [2] writes in The Wall Street Journal (emphasis added):

Bush administration officials, in their last weeks in office, are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states.

The administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine. The latest changes cap a multi-year effort that could be one of the administration's lasting legacies, depending in part on how the underlying principle of pre-emption fares in a case the Supreme Court will hear next month.

This year, lawsuit-protection language has been added to 10 new regulations, including one issued Oct. 8 at the Department of Transportation that limits the number of seatbelts car makers can be forced to install and prohibits suits by injured passengers who didn't get to wear one.

These new rules can't quickly be undone by order of the next president. Federal rules usually must go through lengthy review processes before they are changed. Rulemaking at the Food and Drug Administration, where most of the new pre-emption rules have appeared, can take a year or more.

The Bush administration's efforts to protect corporations that comply with federal rules from legal action have fueled a long-running power struggle between business interests, which support the efforts, and consumer groups and trial lawyers who have denounced the moves.

The U.S. Chamber of Commerce's Institute for Legal Reform supports pre-emption as part of its campaign to "neutralize plaintiff trial lawyers' excessive influence over the legal and political systems," according to its Web site. "It's exceedingly difficult for companies to comply with 50 different state standards," the Institute's president, Lisa Rickard, said in an interview.

The American Association for Justice, the trial lawyers' lobby, is trying to formulate a strategy to undo pre-emptive rules. "This is the gift that keeps on giving for corporations," said the association's chief executive, Jon Haber.

(Alicia Mundy also has a short video accompanying the article.)

The American Association for Justice has a more detailed report on these maneuvers titled "Get Out of Jail Free: How the Bush Administration Helps Corporations Escape Accountability." [3] From an overview on their site (emphasis added):

In a stealth effort coordinated at the highest levels of the Bush administration, multiple federal agencies were repeatedly ordered to usurp state law and undermine consumer protections, according to documents obtained through repeated Freedom of Information Act requests by the American Association for Justice. The documents released today detail how helping corporations escape accountability for dangerous products has been the administration’s top priority.

“This is the real Bush legacy,” said AAJ President Les Weisbrod. “In effect the Bush administration made the safety of Americans secondary to corporate profits.”

The FOIA documents detail a Bush regulatory strategy called preemption. In short, the Bush administration has decided that federal rules should usurp – or preempt – the rights of states to protect their citizens with stricter safety standards. In turn, consumers can no longer use the state protections when harmed by negligence or misconduct, giving total immunity to corporations instead.

AAJ has tracked how the administration’s first attempts to preempt states rights utilized friend-of-the-court briefs on behalf of corporations in civil justice cases. After only mixed success, the administration then shifted strategies, targeting instead regulatory agencies in charge of product safety oversight. Beginning in 2005, carbon copy statements claiming that federal agency rules preempt state law began surfacing in the “preambles” of regulation issued by the federal government, and in some cases in the body of the final rules themselves. Because the courts have not yet conclusively determined whether preambles carry the full weight of law, corporations have a new legal theory on which they can argue in product liability cases.

“Unelected federal regulators are now claiming that states can’t protect their own citizens with stronger consumer protections,” Weisbrod added. In an upcoming Supreme Court case, 47 state attorneys general filed a brief arguing the FDA is breaking with historical precedent. In fact, in their brief they urge the U.S. Supreme Court to uphold a Vermont Supreme Court ruling that state law forces a drug manufacturer to pay $6.8 million to a Diana Levine, whose arm had to be amputated after she was injected with an improperly-labeled Wyeth drug.

Since 2005, seven federal agencies have issued over 60 proposed or final rules with pre-emption language in the preamble. During the past year, AAJ submitted numerous FOIA requests that prove the Office of Management and Budget (OMB) had direct involvement in the placement of the “complete immunity” pre-emption language. In an earlier request, OMB responded that there were no documents. However, emails recently obtained from the individual agencies prove that OMB did indeed discuss pre-emption with agencies, and in some instances OMB officials wrote the language...

This pattern of secrecy, denial and deception is both familiar and troubling. The key element is that this set of federal safety regulations is not designed to provide a minimum level of consumer safety throughout the nation – they're designed to limit consumer safety regulations provided by states. It's a rather perverse inversion of the way rights are supposed to work. And as has so often been the case for the past eight years, corporations will benefit while average citizens lose.

The next president will likely make at least one appointment to the Supreme Court, and a number of other important judicial appointments. The Department of Justice's conduct of the past eight years calls out for a thorough review. Still, it will be critical to review the Bush administration's efforts to strip safety regulations as well, because they could have a long-lasting, negative effect. "E. Coli conservatism" is a very useful term suggesting negligence, willful or otherwise. But it doesn't fully capture the concerted, coordinated strategy of "pre-emption" described here, which instead evokes tales of smallpox and diseased [4] blankets [5], left behind for the next administration and the American public.

(WSJ piece and AAJ tip via Dan Froomkin [6].)