Category: Administrative Law

“Don’t Regulate Me or I’ll Capture You!”

That’s the headline of Brett Frischmann’s insightful post at Madisonian. Frischmann notes that all-too-frequently in public debate, “the ‘risk of capture’ argument leads people to conclude that government should simply not act or regulate, and should instead ignore whatever problem or market failure that would otherwise justify intervention.” That’s one reason why I’ve said that the “price” of a capture argument should be the concession that much more public financing of elections is necessary. That may raise Lindblom’s “circularity” problem at present, but dynamically it appears to be the only way to avoid capture in the long run.

Frischmann also congratulates Larry Lessig on his advocacy for reform of the political process, and I’m glad he’s addressing the larger political forces behind the fine-grained legal issues most law profs study. He may well get us closer to a more fair and open political process. But in the meantime, here’s an interesting story on the nature of political change possible in the current political environment:

Phillip Morris . . . threw an enormous multimillion-dollar party for Republicans last month because they wanted the Family Smoking Bill passed, which would force tobacco companies to lower nicotine levels. Phillip Morris, in opposition of the other tobacco companies, actually wants this legislation because they dominate the low-nicotine cigarette market.

Unfortunately, the big tobacco interest in trade policy is not quite as benign.

Why the FEC Deadlock?

The WaPo warns that the FEC is about to “shut down.” Though “375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely” because of gridlock over President Bush’s effort to appoint Hans Von Spakofsky to a six year term on the commission. Here’s Dahlia Lithwick on Von Spakofsky:

Von Spakovsky’s Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its “historic mission to enforce the nation’s civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section.” The authors named him as the “point person for undermining the Civil Rights Division’s mandate to protect voting rights.”

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn’t there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president’s priorities and would prove excellent leaders of the Commission.

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Verkuil and Klein on Privatization

Philip Dynia at the Law & Politics Book Review has commented on Paul Verkuil’s Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It. Dynia characterizes the book as a sober and penetrating analysis of two disturbing trends:

Who is really in charge of government policy making? Verkuil sets himself the task of demonstrating two points: (1) that important work both significant to and often inherent in the concept of government is being contracted out to the detriment of democratic policy making, and (2) that the trend can (and though he does not say so directly must) be moderated, if not reversed, by changes in the way government operates.

Dynia calls Verkuil’s “command of the relevant literature . . . prodigious,” and notes his skill at “incorporat[ing] constitutional, statutory, administrative, and contractual sources.” Here are some of the conclusions that Dynia draws from Verkuil’s book:

[T]he ratio of political appointees to the number of senior career managers must change. Verkuil cites a report by the National Commission on the Public Service (the Volcker Commission) which notes that President Kennedy had 286 political leadership positions to fill, President Clinton 914, and President George W. Bush 3,361. Such a large number of political appointees paralyzes government . . . . Moreover, studies have shown that politically appointed bureau chiefs get systematically lower management grades than bureau chiefs drawn from the civil service . . . . In short, FEMA’s Michael Brown . . . is just the pathetically obvious tip of [an iceberg of] cronies.

I look forward to comparing Verkuil’s book to Naomi Klein’s The Shock Doctrine, a polemical take on privatization.

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Deborah Platt Majoras on Political Friendster

adamsrib.jpgBoth EPIC and CDD have petitioned for a recusal of FTC Chair Deborah Platt Majoras in the pending Google/Doubleclick merger review. According to Louise Story at the NYT Bits Blog, “Ms. Majoras’s husband, John M. Majoras, works at Jones Day, a law firm representing DoubleClick as the merger is considered. Ms. Majoras also worked at Jones Day.” The motion lays out the recusal standards in some detail, and notes specific instances where Platt Majoras recused herself before:

Chairman Majoras recused herself in the FTC’s review of the Proctor & Gamble acquisition of Gillette “because her former law firm, Jones Day, represented P&G before the Commission, and Majoras’ husband remains an active partner with the firm.”

Whenever I teach the Cheney/Scalia duck hunt case, I am reminded of how much networks of influence in DC can overlap. The Matalin/Carville romance reminds us that compartmentalization is an option. One might imagine the Majorases as actors in a regulatory “Adam’s Rib,” where two married lawyers “use every technique they know to win the case, [as] the courtroom tension carries over into the couple’s household.”

But this page on Political Friendster suggests the tensions may not run too high. It points out some industry connections made a bit more clear at this source.

Delaying Aid to the Sick and Suffering

Erik Eckholm’s well-reported story on growing delays in Social Security disability cases is yet another sad documentation of our country’s flagging concern for the impoverished sick and suffering:

Steadily lengthening delays in the resolution of Social Security disability claims have left hundreds of thousands of people in a kind of purgatory, now waiting as long as three years for a decision. Two-thirds of those who appeal an initial rejection eventually win their cases. But in the meantime, more and more people have lost their homes, declared bankruptcy or even died while awaiting an appeals hearing. . . .

Timely justice in these cases would require more staff to deal with appeals. Instead, continuing budget battles mean that SSA “will probably operate on the basis of continuing resolutions, which will keep agency spending at last year’s level and doom the plan to add judges.”

The parsimonious and inaccurate bureaucracy excels at a few things, though. It generates lots of work for those who represent the claimants. And it displays a Kafkaesque willingness to help once it’s too late:

In the past, said Walter Patterson, a disability lawyer in Charlotte, N.C., clients who received a foreclosure warning were pushed up the waiting list for quicker hearings. But as the hearing offices have become overwhelmed, he said, they now expedite cases only after seeing an actual eviction notice — usually too late to help.

Like the costly ER interventions that could be avoided if only we provided preventive medical care for the poor, the dilatory aid offered by a torpid SSA should provoke a rethink of bureaucratic justice here. Though the agency is under stress, it should no longer hide behind Mathews v. Eldridge to justify a deeply flawed and unfair system.

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Law Talk: Linda Malone on Litigating Global Warming

In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Why did the US try to Undermine EU Safety Regulation?

As a website relates, “Mark Schapiro’s new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union.” An excerpt from the book compares the U.S.’s oft-toothless Toxic Substances Control Act to the EU’s scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that “REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on.”

As REACH was being crafted, the U.S. decided to intervene decisively:

[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation’s industries teamed up to undertake an unprecedented international lobbying effort to kill or

radically weaken the proposal. The assault came from an assortment of government and industry offices.

A memo that circulated at the State Department’s Bureau of European and Eurasian Affairs denounced REACH as too “costly, burdensome, and complex” for industry to follow. . . [A] Commerce Department brief warned, “hundreds of thousands of Americans could be thrown out of their jobs.” U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a “non-tariff” barrier to foreign exporters.

Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC’s: “our nation’s steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries.” Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: “American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power.”

Administering Family Values

Following some excellent reporting on the failures of the CPSC, the NYT gives a big picture forecast of rapid rulemaking in the remainder of the Bush administration:

Hoping to lock in policies backed by a pro-business administration . . . [b]usinesses are lobbying the Bush administration to roll back rules that let employees take time off for family needs and medical problems.

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The National Association of Manufacturers [NAM] said the law had been widely abused and had caused “a staggering loss of work hours” as employees took unscheduled, intermittent time off for health conditions that could not be verified. The use of such leave time tends to rise sharply before holiday weekends, on the day after Super Bowl Sunday and on the first day of the local hunting season, employers said.

The NAM should watch out–they might provoke a hunter-FMLA alliance as durable as the hunter-environmentalist one. They could also generate more lawsuits in the future by putting complex limits on FMLA leave.

But I’m sure NAM has its eye on not just legal but cultural change. Perhaps the endgame is to force more and more workers to be like this one, quoted in Jill Andresky Fraser’s White Collar Sweatshop (p. 23):

[A worker from Intel said] “If you make the choice to have a home life, you will be ranked and rated at the bottom. I was willing to work the endless hours, come in on weekends, travel to the ends of the earth. I had no hobbies, no outside interests. If I wasn’t involved in the company, I wasn’t anything.”

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Excesses of Eurocracy?

Are the Eurocrats going too far? Here’s part of a story on some excesses overseas:

[M]any European cities and regions, at Brussels’ behest, are now developing so-called noise maps. To produce the maps, precise noise readings must be taken on every street, whether in downtown areas, in industrial zones, along railway lines or in expensive and leafy residential neighborhoods.

“We are drowning in a sea of data,” complains Munich Mayor Christian Ude. And in the end, no matter how costly the measuring process is, the results reveal what everyone has known all along: that it’s louder on busy, high-traffic streets than in exclusive, villa-filled residential neighborhoods with maximum speed limits of 30 kilometers per hour.

On the other hand, the more you read about the toxic chemistry of everyday products in the U.S., the more you become willing to accept a burgeoning Brussels.

The Regulatory Beat

Back in 2002 the Columbia Journalism Review published a piece on “Invisible Agencies,” which focused on the rarity of prominent reporting on administrative law decisionmaking. It was a superb piece of meta-journalism, explaining in detail the blinders of the MSM:

Reporting on the regulatory beat, of course, is hard. It requires a reporter to know science, law, administrative procedure, and politics. Journalists must understand the industry in question and the subtleties of regulation – what’s proposed, what the regulated industries prefer, and how the public will be affected. Learning all this takes time. Where once reporters like George Anthan, who covered food safety regulations for the Des Moines Register, could spend weeks plowing through stacks of inspection records at the Department of Agriculture, reporters now tend to want and need something quick and dirty.

Maybe that explains why some of the best reporting on the regulatory beat is done by trade-press reporters, whose job it is to accurately report the nuances of regulation for the regulated industries that have profits riding on the agency decisions. For example, Allison Beers, who recently left her post as managing editor of Food Chemical News, became an expert on the workings of the Department of Agriculture when she was covering food safety regulation, and her stories stand out.

Fortunately, a couple of recent stories break the trend of administrative obscurity. I’ll post on them in a bit.