e coli conservatism

The U.S. Chamber of Commerce: Threat To Capitalism

Eric Lotke — Thu, 11 Jun 2009 07:42:23 -0700

The U.S. Chamber of Commerce launched yesterday “a sweeping national advocacy campaign … to defend and advance America’s free enterprise values in the face of rapid government growth and attacks by anti-business activists.”

The Chamber of Commerce doesn’t get it. They aren’t defending capitalism and free enterprise. They are all but destroying it.

Free-market fundamentalists don’t understand that capitalism is a system. It has rules, boundaries and obligations. When those rules are broken, the system falters.

• It’s not football without lines to mark touchdowns and out of bounds.
• It’s not basketball without a referee to call the fouls.

This is more than just a sports metaphor. Capitalism won’t work unless a negotiated price and promise to pay $100 is followed by payment of $100. And someone needs to enforce those rules. Otherwise it's not capitalism. It’s robbery.

These rules operate at every level.

• My AAA bond valued at $100 million actually needs to be worth $100 million, and it needs AAA assurance of quality — not conflicts of interest where companies issuing securities pay the agencies for their ratings.

• My “mortgage-backed security” needs to be backed by an actual buyer with an actual stake in real property — not bankers whose interest is in transaction fees from bundling, re-bundling and sales.

• My tomato should be free of salmonella, my toys should not have illegal levels of lead-based paint, and my pet food should not be infused with toxic melamine.

If nobody enforces those rules, the system starts to break down. That’s what’s happening now.

A generation ago, free-market ideologues decided that markets could police themselves and regulate themselves. They said history had finally invented something that was truly-self correcting. So they took the police off the beat and slandered as socialism every effort to enforce rules or enforce the reliability of promises.

Look at the result. Now we need to save capitalism from itself.

“We’re launching this campaign,” declared Thomas Donahue, President and CEO of the U.S. Chamber of Commerce, “because those who make or influence economic policy must understand that a productive, competitive private sector is not something they can take for granted.”

That’s precisely the point. A productive, efficient private sector is not something we can “take for granted.” It is something we need to fight for.

We need to fight against anti-competitive monopolies, fight against regulatory agencies captured by the industry they are supposed to regulate, and fight against industry groups that break the rules in the name of freedom.

Freedom isn’t free. The crisis interventions of recent months were needed to save capitalism from itself. The Chamber of Commerce got exactly what it wanted these last few years. We need to stop them before they kill again.

Ailing FDA May Need Major Restructuring

Isaiah J. Poole — Wed, 26 Nov 2008 09:28:00 -0800

The Obama administration will inherit a Food and Drug Administration widely seen as struggling to protect Americans from unsafe medication, contaminated food and a flood of questionable imports from China and other countries. The agency's public image and staff morale has been damaged by a perceived tilt toward industry and away from consumer protection under the Bush administration. Many say it is overdue for a doubling of its budget in order to keep up with the increased number of goods it must oversee.

Regulation Showdown

Batocchio — Mon, 24 Nov 2008 13:51:45 -0800

The Bush administration continues to try to strip as many safety and oversight regulations as it can on the way out the door. It's encouraging that these moves are getting more media attention, but it'd be nice if more mainstream outlets really pressed the question – how do any of these actions serve the public good? Perhaps Bush, or at least Dana Perino, can explain how these moves are a positive addition to the Bush legacy.

The Rules Game

It's harder to overturn changes after they've been put into effect as law, hence the rush by the Bush administration. Its calculations about the deadline, though, may be wildly off. As The Politico (via Cernig) outlines:

Last May, White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1. The memo didn’t spell it out, but the thinking behind the directive was obvious. As Myron Ebell of the conservative Competitive Enterprise Institute put it: “We’re not going to make the same mistakes the Clinton administration did.”

President Bill Clinton finalized regulations within 60 days of the 2001 inauguration, meaning Bush could come in and easily reverse them.

It could take Obama years to undo climate rules finalized more than 60 days before he takes office — the advantage the White House sought by getting them done by Nov. 1. But that strategy doesn’t account for the Congressional Review Act of 1996.

The law contains a clause determining that any regulation finalized within 60 legislative days of congressional adjournment is considered to have been legally finalized on the 15th legislative day of the new Congress, likely sometime in February. Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.

In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.

The Congressional Review Act has gotten some coverage from Rachel Maddow and others. Of course, Congress must actually exercise this oversight for the law to be any good.

Meanwhile, the Bush administration is pushing on regardless, and can speed its process by judging changes "insignificant." As Jim Tankersley reported for the Los Angeles Times on Friday, 11/21/08 (emphasis added):

"The Bush administration is trying to prevent Obama from doing to it what it did to Clinton," said Matt Madia, a regulatory policy analyst for OMB Watch, a Washington-based watchdog group.

Under federal rules, it takes 60 days to enact an economically "significant" regulation, which carries an estimated impact of $100 million or more. Other regulations take 30 days. Today is the deadline for "significant" regulation, though [White House spokesman Tony] Fratto calls it "irrelevant to our process."

The process moved especially quickly in the case of oil shale. In July, the administration proposed rules that would eventually lead to leasing 2 million acres of public land in Colorado, Utah and Wyoming for oil shale extraction, even though serious questions remain about how much power and water -- a particularly scarce resource on much of that land -- would be needed to make it work.

The rules were finalized this week.

The Bush push leaves the incoming Obama administration and Congress with a number of decisions, not only on the rules themselves but how to address them procedurally.

Endangered Species

The Bush administration is attempting a major change to the Endangered Species Act by eliminating interagency input and ignoring climate change. While several outlets have covered this, The Washington Post's article by Juliet Eilperin gives the best rule-making detail that I've seen:

The Bush administration is finalizing changes to the Endangered Species Act that would ensure that federal agencies would not have to take global warming into account when assessing risks to imperiled plants and animals…

The main purpose of the new regulations, which were first unveiled in August, is to eliminate a long-standing provision of the Endangered Species Act that requires an independent scientific review by either the U.S. Fish and Wildlife Service or the National Oceanic and Atmospheric Administration of any federal project that could affect a protected species. Under the administration's proposal, individual agencies could decide on their own whether a project would harm an imperiled species.

The latest version of the rule goes further than the language Interior Secretary Dirk Kempthorne issued in August by explicitly excluding climate change from the factors that would trigger an interagency consultation. The move is significant because the administration has listed polar bears as a threatened species under the act on the grounds that their sea-ice habitat is shrinking, but Kempthorne has repeatedly argued that this move should not trigger a federal curb on greenhouse gas emissions linked to the melting of sea ice.

The Bush administration's preferred stance seems to be that polar bears may be endangered, but it's impossible to say why or to address the cause of their endangerment.

The public commenting period on this measure was also odd. As the AP reports:

When the proposal was first announced in August, the public was given 30 days to comment. That period was doubled after Democratic lawmakers pressed for more time.

Then, last month, the head of the endangered species program corralled 15 experts in Washington to sort through 200,000 comments in 32 hours.

"This is definitely lightning quick," said John Kostyack, executive director of the National Wildlife Federation's Wildlife Conservation and Global Warming initiative. "I would be surprised that they spent all this time rushing it through if it wasn't greased."

And remember the different deadlines for "significant" versus "insignificant" rule changes? Dan Froomkin sharply picks up on this passage from the Eilperin piece:

Interior Department spokeswoman Tina Kreisher said the administration is close to issuing a final rule but is still reviewing the language for potential changes. Interior has classified the proposal as "a minor rule," which means the government has determined that it would not have a major economic impact. It will take effect 30 days after being published in the Federal Register.

Clean Air

We've previously covered the most significant Bush changes to the Clean Air Act, a redefinition of pollution limits by an hourly versus yearly rate so that, per McClatchy, "[power] plants could run for more hours and increase overall emissions without exceeding the threshold that would require additional pollution controls."

I wanted to highlight one section of that earlier post, though. In the case of the Endangered Species Act, the public commenting seems to have received cursory consideration at best. However, even that level of review was better than that for the EPA's power plant changes:

The EPA official said that concerns in the agency were that the analysis justifying the rule change was weak and the administration didn't plan to make the analysis public for a comment period, as is customary...

The EPA is under no obligation to reveal internal deliberations, so in many cases the public never knows what objections may have been raised.

The White House wouldn't comment on its views about changing the rule, Kristen Hellmer, a spokeswoman for the White House's Council on Environmental Quality, said Monday.

It's worth noting as well that EPA officials and many career employees at other regulatory agencies are unhappy about both the Bush administration's proposed changes and their procedures for implementing them.

Reproductive Rights

Obama is expect to drop the "global gag rule":

…barring international family planning groups that receive U.S. aid from counseling women about the availability of abortion, even in countries where the procedure is legal, said Cecile Richards, the president of Planned Parenthood Federation of America. When Bill Clinton took office in 1993, he rescinded the Reagan-era regulation, known as the Mexico City policy, but Bush reimposed it.

The Bush administration may be unable to stop that, but is attempting changes on the domestic front, as The New York Times reports:

A last-minute Bush administration plan to grant sweeping new protections to health care providers who oppose abortion and other procedures on religious or moral grounds has provoked a torrent of objections, including a strenuous protest from the government agency that enforces job discrimination laws.

The proposed rule would prohibit recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or to assist in the performance of abortions or sterilization procedures because of their “religious beliefs or moral convictions.”

It would also prevent hospitals, clinics, doctors’ offices and drugstores from requiring employees with religious or moral objections to “assist in the performance of any part of a health service program or research activity” financed by the Department of Health and Human Services.

As seems to be the trend, these changes are not welcomed by career officials:

But three officials from the Equal Employment Opportunity Commission, including its legal counsel, whom President Bush appointed, said the proposal would overturn 40 years of civil rights law prohibiting job discrimination based on religion.

The counsel, Reed L. Russell, and two Democratic members of the commission, Stuart J. Ishimaru and Christine M. Griffin, also said that the rule was unnecessary for the protection of employees and potentially confusing to employers.

Title VII of the Civil Rights Act of 1964 already prohibits employment discrimination based on religion, Mr. Russell said, and the courts have defined “religion” broadly to include “moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.”

As John Amato notes, Hillary Clinton and Patty Murray (D-WA) have introduced legislation in the Senate to block this Bush change, and in the House, Diana DeGette (D-CO) and Louise Slaughter (D-NY) have done the same. From the Clinton-Murray press release:

In the final days of his administration, the President is again putting ideology first and attempting to roll back health care protections for women and families. The fact that the EEOC was never consulted in the drafting of this rule further illustrates that this is purely a political ploy. This HHS rule will threaten patients' rights, stand in the way of health care professionals, and restrict access to critical health care services for those who need them most.

Consumer Protections

We've covered this before as well, although the list seems to keep growing. As the Wall Street Journal has reported, "the administration has written language aimed at pre-empting product-liability litigation into 50 rules governing everything from motorcycle brakes to pain medicine."

Watchdog Groups

In addition to efforts at this site, OMB Watch keeps a close eye on many rule changes, and Pro Publica has a list of 25 rule changes and their current status – open for comment, OMB review, finalized, in effect, and so on. Or one can dig through the Federal Register or the Unified Agenda.

It doesn't seem likely that the Bush administration will be shamed out of stopping any of these last-minute efforts, most of which seem to be giveaways to friends in industry or other political allies. That means the challenge for the incoming Obama administration and Congress is mostly one of procedural maneuvering. However, the bigger issue for the public and the press is how government approaches these issues in the first place. Is scientific counsel valued and heeded? Are agency personnel hired due to competency, and allowed to do their jobs? Is the public informed of changes, informed of their consequences, and invited to comment? And is the government responsive and working for the public good? While the economic crisis is sure to demand a great deal of attention, some of the most telling and important battles are often waged at the smaller agencies, and it would wonderful if competency became the fashion once more in Washington.

( Hat tip to Dan Froomkin for several of these links.)

Pre-Emptive E. Coli

Batocchio — Mon, 20 Oct 2008 15:26:14 -0700

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 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 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." 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 blankets, left behind for the next administration and the American public.

(WSJ piece and AAJ tip via Dan Froomkin.)

Tainted Food Threatens All Americans

Bernie Horn — Thu, 14 Aug 2008 15:16:31 -0700

Toxic Toys: A Poisonous Affair

Anne Thompson — Tue, 06 Nov 2007 00:00:00 -0800

What is the infection that Barbie has suddenly come down with? Imported toys from China with dangerous levels of lead, including Barbie doll accessories, have ended up in U.S. stores. Yet, Nancy Nord, the acting head of the Consumer Product Safety Commission, opposes efforts to strengthen her agency. Plus, she's taken trips paid for by the industries she regulates. It's clear: Nancy Nord must resign.

Several news outlets, including ABCNews.com, The Washington Post, the Associated Press and even the Fox News Channel did stories on this YouTube video by the Campaign for America's Future that calls attention to the conservative-led decimation of the Consumer Product Safety Commission.