4. THE GRAND BAZAAR
The gleaming temples of democracy that tourists visit in Washington, the marble shrines to great leaders and great ideals, are no longer an appropriate emblem for the nation's capital. Washington now is more aptly visualized as a grand bazaar -- a steamy marketplace of tents, stalls and noisy peddlers. The din of buying and selling drowns out patriotic music.
The high art of governing -- making laws for the nation and upholding them -- has been reduced to a busy commerce in deal making. Thousands and thousands of deals are transacted every day in diffuse corners of the city. The rare skills required for politics at the highest level are trivialized as petty haggling, done with the style and swagger of rug merchants.
The Department of Transportation dickers with Detroit over automobile safety. The Department of Agriculture makes deals with farmers on the price of corn and the permissible poison level in pesticides. The Treasury Department haggles with important taxpayers. The Department of Defense buys rockets and airplanes and sells them too.
In the grand bazaar, the two staples of trade are the myriad claims on the federal treasury and the commercial rights and privileges that only the government can bestow -- licenses for television stations or airlines, the use of public assets like land or water or timber. All may produce vast good fortune for the winners and the competition for them naturally draws many eager contestants.
It is bargaining over the law itself, however, that provides the richest commerce and has the greatest consequences for democracy. While the news media focus on the conventional political drama of enacting new laws, another less obvious question preoccupies Washington: Will the government enforce the law? Does the new law enacted by Congress really have to mean what the public thinks it means? Or is there a way to change its terms and dilute its impact on private interests?• Lawyers inquire whether exceptions can be arranged for important clients. Major corporations warn enforcement officers of dire economic consequences if the legal deadlines are not postponed for a few more years. Senators badger federal agencies to make sure the law is treating their clients and constituents with due regard.
Washington, in other words, engages in another realm of continuing politics that the public rarely sees -- governing contests where it is even more difficult and expensive to participate. This is where the supposedly agreed-upon public objectives are regularly subverted, stalled or ignored, where the law is literally diverted to different purposes, where citizens' victories are regularly rendered moot.
Confusion spreads across almost every function of the government, a continuing uncertainty about whether laws will actually be implemented. Those interests that have the resources and the incentive to stall the law's application do not always succeed, of course, but their persistent efforts keep government authority always in doubt -- often long after the public was assured that a problem had been addressed.
The transactions where this occurs are mostly submerged in the Executive Branch, scattered across hundreds of bureaus and agencies and focused mainly on the esoteric language of federal regulations and enforcement. The regulatory government is a many-chambered labyrinth, staggeringly complex and compartmentalized in its thousands of parts. But one does not have to study a dizzying organizational chart of federal agencies to understand how it works. One need only visualize what happens to a law after it is enacted to grasp the antidemocratic dynamic.
The deal making is the principal source of the money scandals that occasionally ensnare senators or representatives. When a politician is caught trying to fix things for a campaign contributor, he usually reacts with injured innocence. He was only doing his job. Besides, everyone does it. As morally unsatisfying as these excuses seem, the crooked politicians are articulating an unpleasant truth about modern government. Everybody does do it, including especially the politicians of the Executive Branch.
For democracy, the result is a kind of random lawlessness. Corrective mechanisms that are supposed to prevent irregular political manipulations have been purposely weakened. And the public inherits grave injustice: a government that will not faithfully perform its most basic function -- enforcing the laws.
***
The regulatory government is arguably the largest or second largest component in the political commerce surrounding the federal government, rivaled only by the defense sector in terms of the human and financial resources it consumes. Professor Robert B. Reich of Harvard attempted a precise census in the early 1980s and found that the "regulatory community" in Washington consisted of 92,500 people -- lawyers, lobbyists, trade- association and public-relations specialists, consultants and corporate reps. Their primary function is to argue over the content of federal regulations -- the precise meaning that will flow from the laws that Congress has enacted. A decade later, Reich's head count doubtless understates reality. [1]
The general-interest press does not try to cover the regulatory government, except for an occasional controversy, mainly because regulatory politics seldom provides a concise, convenient event. These contests are stretched out over years -- a continuum of tedious actions that confounds the standard definition of "news." The regulatory details, moreover, do not look like "politics," but generally surface as mind-numbing arguments over law, science and economics. [2]
The explosion of modern regulation, more than anything else, is what brought the money to Washington and transformed the capital from a sleepy small town to a glamorous power. center. During the 1930s, Roosevelt's New Deal created 42 major regulatory agencies and programs. Most of these involved economic regulation of specific sectors (airlines, broadcasting, oil and agricultural production and others), arrangements usually created in cooperation with the affected industries. During the 1960s, 53 regulatory programs were enacted, as consumer issues and environmental protection gained political momentum. From 1970 to 1980, 130 major regulatory laws were enacted. That is what brought the Fortune 500 to Washington, along with the tens of thousands of lawyers. [3]
Unlike most of the earlier regulatory laws, the modern generation of regulation was primarily aimed at curbing the antisocial behavior of businesses and was equipped to act in much more intrusive ways. New agencies like EPA or OSHA were not confined to specific industrial sectors like airlines or broadcasting, but were responsible for policing conduct across the entire spectrum. In that sense, the purposes were truly national.
This design presumably made it harder for a single industry to capture its regulator and control the agency's decisions, but it also had a unifying impact on corporate politics -- an incentive for diverse business interests to collaborate in campaigns to thwart new laws. Coalition building among different companies and industrial sectors became the preferred mode of corporate' pressure, and these alliances now deploy battalions of lawyers and lobbyists armed with their expert testimony. [4]
While regulatory laws have accomplished many things, the cumulative result is a civic culture that is quite different from the classical version of government described in civic textbooks. The arrangements of regulatory laws invite -- and often require -- that all things be negotiable later in the fine print. In time, once that assumption permeated government, the interested parties established that no principle was exempt from tampering. Theodore J. Lowi, the Cornell political scientist, captured the spirit of modern Washington when he described it as governing by "universalized ticket fixing."
The bargaining mode of governance, as Lowi explained; originated in the pluralist logic that fostered many of the New Deal's innovations -- reforms and economic interventions intended originally to share governing power with the weak and unrepresented. The goal was to create new forums and agencies for decision making in particular fields of interest, which would provide a place at the governing table for groups of citizens that could not hope to win in the larger political contests over general law. Struggling labor unions were given the National Labor Relations Board. Farmers were given an elaborate committee system with which to influence agricultural policy. The fledgling airline industry was regulated but also protected from competition by the Civil Aeronautics Board.
The idea, roughly speaking, was to encourage people to organize themselves into identifiable interest groups whose claims and aspirations the government could address, one by one. Out of the many voices, it was supposed, an equilibrium of just results would emerge from the competition among different groups. Lowi called it "interest-group liberalism." This civic philosophy is now fully internalized by both political parties and, indeed, by most citizens too. However, as Lowi said, it "corrupts democratic government because it deranges and confuses expectations about democratic institutions." [5]
This approach, multiplied and elaborated over time, produced a rudderless vessel -- a government designed to fix things at many different tables in the grand bazaar. At the dawn of the New Deal, principled conservatives (as distinct from those conservatives merely fronting for monied interests) had warned that a government that dabbled in every corner of the society would be unable to sustain a classical sense of general law. Political decisions would resemble, instead, particular deals, made piecemeal across every front. In those terms, the old conservative nightmare has come true.
But so has the liberal nightmare. Instead of containing the political influence of concentrated economic power and liberating government from its clutches, the steady diffusion of authority has simply multiplied the opportunities for power to work its will. The original progressive purpose of the New Deal has been stood on its head and now the weak and unorganized segments of society are the principal victims. In the liberal nightmare, pluralist deal making continues in the guise of governing -- but now the entrenched monied interests are back in charge of the marketplace, running the tables in the grand bazaar.
The practical result is a lawless government -- a reality no one in power wishes to face squarely since all are implicated, one way or another. The clear standards that citizens expect from law -- firm definitions of right and wrong, commandments of thou shalt or thou shalt not -- are corrupted by a fog of tentative declarations of intent. The classical sense of law is lost in sliding scales of targets and goals, acceptable tolerances and negotiated exceptions, discretionary enforcement and discretionary compliance.
To say that government is lawless does not mean that the laws are never enforced or never obeyed. Of course they are. It means that law is applied with such randomness that its reliability is betrayed. It means that the certitude citizens expect in law is now routinely subverted by the application of political influence. The political interventions are generally not themselves illegal, however. Indeed the processes of law often invite them.
This reality betrays the principle that is most necessary to democracy -- equal protection of law -- and, for that reason, it is perhaps the gravest disorder in the governing system. A shared confidence in just laws is the prerequisite social faith supporting every other function in democracy. Citizens are entitled to the presumption, regardless of their own economic and social status, regardless of whether they personally participate in the processes of elections and public debate or decline to do so.
As people everywhere now sense, this presumption has been grossly compromised. Though the problem is seldom addressed in public-opinion studies, I suspect that the general awareness of corrupted law is an important factor feeding the popular alienation from government and politics. This may be part of what people mean when they tell the polls that the government is devoted to serving a "few big interests."
"There is one set of laws we are all supposed to follow and then there's another set of laws determined by calling your buddy and asking him what he thinks," said David Vladeck, a lawyer with Ralph Nader's Public Citizen. Vladeck, like scores of other public-interest lawyers in Washington, devotes most of his energy to suing the government -- trying to get various federal agencies to enforce their own laws. The same agencies are sued endlessly by the other side as well, the corporate lawyers trying to block and dilute the force of those laws. Whether in courtrooms or in bureaucratic forums, this contest over law enforcement, more than anything else, is what consumes the persuasive energies of the capital's many lawyers.
William D. Ruckelshaus, the first administrator of the Environmental Protection Agency in 1971, described the continuing uncertainty of law he found when he returned to the job in 1983:
"When I came back into EPA, I hadn't been in office twenty-four hours when I was sued three times. I asked the general counsel to study it and he found that 85 percent of the decisions made by the EPA administrator that are appealable were appealed. Each case takes three to five years to work out in couI1 and the way it's worked out is a settlement negotiated between the industry and the environmentalists with the government sitting on the sidelines as an arbitrator."
What Ruckelshaus did not mention is that, according to another study, 68 percent of the challenges against EPA decided by judges were ultimately won by the environmentalists. Ruckelshaus himself was once held in contempt of court by a federal judge who called the EPA administrator a scofflaw and threatened to jail him because Ruckelshaus was deliberately ignoring a court order to quit stalling on enforcement. "The judge was right," Ruckelshaus acknowledged cheerfully, though he defended his rank evasion. [6]
The lawless bazaar existed long before Ronald Reagan carne to Washington and so did its permissiveness. But the political favoritism and insider fixes of the Reagan-Bush years were so flagrant -- and crude -- that they encouraged the impression that lawless behavior was a partisan problem, peculiar to a Republican regime indebted to big business. The Reagan appointees, it is true, did bend laws and ignore them with more zeal and thoroughness than any of their predecessors, but the roots of this governing disorder are much too deep and bipartisan to be explained away so easily. [7]
In the simplest terms, the lawlessness is another expression of concentrated political power, in most instances the power of corporations to resist the law. Stated another way, corporate interests, on the whole, still do not accept that they must comply with the new regulatory controls enacted during the last twenty-five years. Corporations do comply with laws, of course, and have spent billions to do so (and also paid many millions in fines for their violations). But major business interests have a choice that is not available to most citizens. If they regard the law as unworthy, irrational or too demanding, they have the ability to fight on.
That's real political power -- choosing whether to honor a law or resist it. Since the cost of resistance is often quite modest compared to the cost of compliance, companies benefit in real dollars from any success at political stalling, even if they know that they may eventually lose the fight. Thus, what often looks like a legal contest on the surface is really a political struggle in its deeper dimensions.
Curtis Moore, a lawyer who served fifteen years as Republican counsel on the Senate Environment and Public Works Committee, described the tortuous struggle to make the laws meaningful in the face of corporate tenacity:
"Twenty years ago, we set out to eliminate sulfur dioxide from the air. Here we are twenty years later and more than 100 million Americans are still breathing air with unhealthful levels of sulfur dioxide. Why? Because the companies fight you when you try to pass a law. They fight you when you try to pass a second law. They fight you when you try to write the regulations. They fight you when you try to enforce the regulations. Nowhere do they ever stop and say: 'Let's obey the law.'"
***
The very first secretary of transportation to order airbags installed as lifesaving devices in automobiles was John Volpe in 1970 during Richard Nixon's first term. Henry Ford and Lee Iacocca, then Ford's top executive, called on Nixon at the White House the following April and delivered a blustery attack on airbags and other federal safety and environmental laws.
Their visit marked the beginning of a successful twenty-year stalling campaign by the auto industry -- political pleas followed by postponed regulations, more studies, court challenges and watered-down proposals and more litigation. The industry's evasive tactics blocked airbags through four presidencies. The episode is revealing because the Nixon-Ford- Iacocca dialogue was recorded for history in the Watergate tapes. Yet it is also a commonplace story in modern government -- a law in name only, a law deferred to please a political friend.
"We're not only frustrated," Iacocca exclaimed to Nixon, "but we've reached the despair point. We don't know what to do any more." [8]
Airbags, he told the president, were another untested "gadget" that Ralph Nader and other safety zealots wanted, but they would merely increase auto prices and feed inflation. "We are in a downhill slide, the likes of which we have never seen in our business," Iacocca warned. "And the Japs are in the wings ready to eat us up alive.
"So I'm in a position to be saying to Toms [the highway safety administrator] and Volpe, 'Would you guys cool it a little bit? You're going to break us.' And they say, 'Hold it. People want safety.' I say, 'Well, what do you mean they want safety? We get letters. We get thousands on customer service. You can't get your car fixed. We don't get anything on safety!'"
Richard Nixon responded sympathetically with his own diatribe against Nader and the reformers. They are hostile to industrial progress, per se, Nixon complained, and would like to go back and live like the Indians. "You know how the Indians lived?" the president said. "Dirty, filthy, horrible."
The Nixon-Ford-Iacocca dialogue is instructive for its rambling, semi-coherent quality -- a series of unfocused grumblings. Neither Nixon nor Henry Ford seemed to know much about how the regulatory process works. Iacocca tried to instruct them, but his task was confused by his own scattershot invective and rambling asides. Reading the transcript of their conversation will be disturbing to anyone who thinks of the Oval Office as a place where the best minds come together to address the most serious matters.
At the conclusion, Nixon instructed his aide, John Ehrlichman, to take care of "this airbag thing." It was taken care of, and for a long, long time. Through Nixon, Ford, Carter and Reagan, the auto industry successfully kept airbags out of automobiles, making the same arguments at every step to administrators, courts and presidents. Airbags didn't work. They would increase prices. Consumers didn't really want them.
Finally, by 1990, the legal and bureaucratic evasions were exhausted and airbags were at last made available for American consumers. Their effectiveness was demonstrated immediately in dramatic incidents in which motorists survived terrible head-on collisions because their cars were equipped with airbags.
And Lee Iacocca, now CEO of Chrysler, appeared in Chrysler's TV commercials, boasting that his auto company was the leader in making airbags available to American car buyers.
Aside from Iacocca's rank hypocrisy, the story of airbags is unexceptional. It is possible to collect dozens, even scores of similar examples of laws that were bent or stalled in regulatory limbo or simply never enforced at the behest of selected clients.
At the Food and Drug Administration, it took more than twenty-five years -- and twenty- eight postponements encouraged by industry pressure -- before the agency decided to restrict the use of cancer-causing red dyes in food products, a danger the FDA scientists first identified in the early 1960s. [9]
At the Nuclear Regulatory Commission, the regulators issued only 350 fines during the 1980s, though public utilities had reported approximately thirty-four thousand mechanical malfunctions, worker errors and security infractions at nuclear-power plants. [10]
At the Department of Labor, the Occupational Safety and Health Administration referred only forty-two cases of industrial negligence for criminal prosecution over nearly twenty years. Only fourteen of those were actually prosecuted, with ten convictions. No one was ever sent to jail, even for a day, for violating this federal law.
At the Pentagon, exceptions to law were granted routinely to the major defense contractors -- General Electric, Boeing, General Motors, Rockwell, Northrop and others -- who committed criminal fraud against the government itself. The New York Times reported that twenty-five of the one hundred largest contractors have been found guilty of procurement fraud in recent years -- some of them several times. The criminal behavior persists because, other than brief embarrassment, there is no significant penalty, at least for the largest companies. Typically, they plead guilty and pay a fine. To appease the public, the Pentagon sometimes "suspends" contractors, but the suspensions are always lifted in time for the company to participate in the next bidding for contracts. [11]
At Transportation, the law enacted in 1975 to require greater fuel efficiency in automobiles was deferred repeatedly by both the Carter and the Reagan administrations at the behest of industry lobbyists. Whenever it appeared that companies might not meet the legal standard, they appealed to the White House for another postponement: Reagan granted three of them.
At the Environmental Protection Agency, the inspector general found that 80 percent of the case files on hazardous-waste violations showed no evidence that the violators had ever complied with the enforcement order. Instead, typically, EPA "enforces" its rules on land, air and water pollution by negotiating with the offenders -- bargaining with company lawyers over how much or how little they will do to correct their abuses and how soon.
A senator asked the EPA inspector general: "Is it your testimony that EPA's enforcement policies are so weak that it frequently pays polluters to keep polluting and pay EPA's small fines rather than clean up their act?" "Absolutely," the inspector general responded. " ... We have found that over and over again." [12]
When federal laws are so malleable and subject to political intervention, they cannot truly be called laws at all.
***
It is not quite fair or accurate to blame random lawlessness on faceless bureaucrats -- the professional cadres who operate the government agencies. In fact, to subvert the authority of law, powerful interests have had to eviscerate the authority of the permanent civil service -- those officers and professionals 'of government who are obliged to provide a fair, impartial rendering of laws. Two decades of propaganda from conservative think tanks assailed bureaucracies as the source of waste and irrational decisions. Republican political candidates promised to dismantle the machinery of big government and, once in office, they tried to keep the promise.
Among other things, democracy requires a strong civil service-government employees who are sufficiently protected from random political influences to carry out the law in a disinterested fashion. This paradox is not exactly new; reformers discovered' the same insight in the late nineteenth century when concentrated powers were manipulating government decisions in a similarly shameless manner. In modern political usage, the principle was stood on its head-the permanent bureaucrats were portrayed as the enemy of the public interest and politicians set out to "get control" over them in the name of responsive democracy. They have largely succeeded.
The consequences first became clear in the realm of foreign policy. During the communist- care campaigns launched in the late 1940s and 1950s, the Foreign Service was accused of disloyalty and individual diplomatic officers were pilloried for expressing inconvenient opinions on the true nature of international conflicts. The diplomatic corps has never recovered.
Over time, as the intellectual independence of the Foreign Service was debased, the quality of its expert judgments became less and less relevant to the political appointees who made foreign policy decisions. Recurring episodes of failure -- Vietnam, the debacle in Iran, the war against Nicaragua in the 1980s -- all confirmed the problem of high officials who ignored or actively suppressed informed dissent from the Foreign Service. Instead of nurturing honest voices in foreign policy, presidents regularly appoint political hacks who are routinely dispatched to U.S. embassies as a reward for their campaign contributions.
The Nixon administration, as in so many aspects, was more brutally systematic than others in its efforts to defenestrate the domestic civil service. Frederick Malek, a businessman who served as the White House personnel director in 1969, issued an exhaustive manual for political appointees on how to evade the civil-service laws and intimidate or dislodge uncooperative federal employees who did not accept Nixon's political agenda and his idea of what the law required. "There is no substitute in the beginning of any administration for a very active political personnel operation," Malek wrote. He cited Democratic predecessors, Kennedy and Johnson, as his model.
Among other tactics, Malek recommended personal threats to any civil servant who seemed politically disloyal -- a transfer to distant parts of the country or damaging reports placed in the employee's personnel file. "There should be no witnesses in the room at the time," Malek warned. "Caution: this technique should only be used for the timid at heart with a giant ego. This is an extremely dangerous technique and the very fact of your conversation can be used against the department."
As a grander strategy, Malek proposed: "Another organizational technique for the wholesale isolation and disposition of undesirable employee-victims is the creation of an apparently meaningful, but essentially meaningless, new activity to which they are all transferred. This technique ... is designed to provide a single barrel into which you can dump a large number of widely located bad apples." [13]
Civil servants are not oblivious to this sort of purposeful manipulation. Some react with extraordinary courage, carefully protecting their legal prerogatives and making sure that their decisions are technically correct and invulnerable to political assault. Others, more commonly, learn to keep their heads down. John Moran, who served a dozen years as an occupational health expert at EPA and the Labor Department, described the bureaucratic reality that has evolved:
"I was really trying at Labor. I got out safety alerts largely in spite of the system. They kept tightening the screws until they shut me down. My view is that, in the government, the fundamental rule is: Just play the game. Go with the flow. But don't take initiatives or try to go out and solve problems.
"It makes too many headaches for too many people. You get political flak, you get press. A lot of people in the federal bureaucracy are quite happy with that system. They are the ones, by and large, who survive and get promoted. The higher they get, the more cautious they become."
Another technique for subversion, used most dramatically by the Reagan administration, is to starve an agency for funds so that its civil servants cannot conceivably carry out their functions, no matter how conscientious they might be. Overall, regulatory personnel in the federal government peaked at 131,000 in 1980 and fell to 112,000 by 1986, despite the greatly enlarged regulatory obligations that new legislation continued to produce.
In Reagan's first term, EPA's budget was cut by 10 percent and its staff shrank by more than 20 percent (at one point, EPA's office of enforcement was abolished in one of those "reorganization" ploys recommended in the Malek manual). The Interior Department reduced strip-mine enforcement by nearly 60 percent. OSHA cut four hundred inspectors and its citations declined by half. The National Highway Traffic Safety Administration's budget was cut by 22 percent and its formal investigations into potential car defects shrank from eleven a year to four. At the Food and Drug Administration, the number of "emergency exemptions" granted to new pesticides was tripled. [14]
More insidious is the way in which government has put some functions in the hands of private parties -- "privatized" them, as the conservative scholars would say-by contracting out the work to companies and consulting firms. This trend was promoted in the name of efficiency and reduced costs, but it has inevitably deepened the irresponsibility of government-private contractors are often asked to recommend the rules and standards that will govern their own behavior.
The Department of Energy's flagrant abuse of environmental laws stemmed largely from private companies like Du Pont that were hired to do the government's work for it. "Some of the severity of DOE's predicament stems from the fact that structurally it is a supervisory agency," Gregg Easterbrook wrote in The Washington Post. "Its budget puts bread on the table for about 165,000 people but only 16,000 of them are government employees; the majority work for contractors and consultants." [15]
Despite occasional scandals, government contracting has become a popular remedy for governmental breakdown and tight budgets. If money is saved in the process, this is usually achieved by avoidance of the wage-and-benefit requirements of federal employment. Privatizing governmental functions provides rich contracts for private enterprise, but evades the more difficult questions of authority. It plays to the inherent popular distrust of government bureaucracy, but it also further confuses the public accountability.
Senator David Pryor of Arkansas, a persistent critic of the practice, noted that congressional testimony given before the House Armed Services Committee by the secretary of energy was actually prepared in part by a private defense contractor, unbeknownst to the secretary of energy himself. "Who is running our government?" Senator Pryor asked. "My no. 1 concern is totally unaccountable decision-makers. We don't know who they are, how they got there or why they got there." [16]
Farming out the government's responsibilities to private contractors -- while simultaneously holding federal pay for senior executives and technical professionals below that of the private marketplace -- naturally encourages a "revolving door" in personnel. Young bank examiners typically put in a few years as government regulators, then join regulated banks at much more substantial incomes. Justice Department attorneys take their expertise to private law firms where they represent the violators.
The federal government, as a whole, has been reduced to a training camp for private enterprise -- a school in which the students learn the skills and inside knowledge that will be most valuable to outside employers. Under those circumstances, only the most dedicated civil servants -- or the most incompetent -- are willing to remain in the public's hire. [17]
***
In a world of unreliable laws, the news media have become a principal agent of law enforcement. Wherever the press turns its beacon, embarrassed officers of government are compelled to follow. The routine of law enforcement has become a hit-or-miss system dependent upon exposure and scandal.
During the last three months of 1988, The New York Times published 108 stories, thirty- seven of them on its front page, devoted to a single scandal. A young reporter named Keith Schneider had discovered the gross and dangerous radioactive pollution emanating from the federal government's own nuclear weapons production plants. At his urging, the Times made a major project of exposing the full dimensions of neglect and deceit. The cost of cleaning up radioactive contamination from forty years of reckless mismanagement at the seventeen federal plants was subsequently estimated to be as much as $155 billion. [18]
The story itself was not entirely new or even secret, despite the rigid national-security classifications that surround the nuclear weapons plants. Congressional committees had investigated the subject for years and voiced their alarm. Freelance documentary filmmakers had produced devastating films exposing the radioactive contamination at Savannah River, South Carolina; Rocky Flats, Colorado; and other installations. Still, it was The New York Times that single-handedly made the nation sit up and take notice.
"Congress doesn't have the ability to get an agency to respond," said Representative Mike Synar of Oklahoma, a member of the House Commerce Committee who has led many of its aggressive oversight investigations. "There's only one way to make them respond and that's to get them on the front page or on the evening news. I was pounding hard on the Department of Defense and Department of Energy installations for six or seven years and nothing happened.
"Then Keith Schneider picked it up and wrote stories for thirteen days in a row on the front page of The New York Times and that changed everything. He has more power than any congressman over regulatory agencies."
Congressman Synar may not be exaggerating. Press exposure is a powerful therapeutic agent against the lawless behavior in government, but it is also quite random. Citizens' groups, large and small, work hard to alert news organizations to their complaints, while government regulators and the regulated industries live in perpetual dread that the roving eye of the media will, for some reason, stop on them. When it does, they are required at a minimum to prepare rituals of responsiveness that will appease the public outrage.
But, as every reporter and editor appreciates, the media's glare is essentially a transient, accidental force. It picks and chooses among many possibilities and usually settles on the most visibly alarming ones. Certain kinds of stories -- dead fish floating in the river or workers who lost their hands in unsafe machines -- are visual and accessible to press exposure. The more complicated, systemic scandals usually are not.
Depending on the media to make government agencies enforce the law is another aspect of randomness, People are often disappointed by the media's fickle attention span, their devotion to certain issues and indifference to others. But frustration with the press is directed at the wrong target. The government is supposed to enforce the law, not the newspapers.
***
The government, however, is a principal violator itself. As the Times's exposure of the nuclear weapons scandal suggested, major scandals of lawlessness often involve not just private companies, but installations of the federal government itself. During a generation of enacting ambitious environmental protection legislation, the government has been, without doubt, the single worst polluter in the nation. Private corporations can always plead that they were merely following the example set in Washington. The attorney general of Maine, James A. Tierney, compared the two major boatyards in his state -- Bath Iron Works, a private corporation that builds destroyers, frigates and cruisers for the Navy, and the Navy's own Portsmouth yard that overhauls and maintains nuclear submarines -- both of which generate dangerous hazardous wastes.
"One of these yards obeys the law," Tierney said. "One pays penalties when they do not. One pays fees. One has taken a responsible attitude toward the handling of hazardous waste. And that, sad to say, is the private yard. With our public yard, the Portsmouth Naval Shipyard, we have had an exact opposite situation." Shellfish in the Piscataqua River estuary, he said, have been contaminated with PCBs, lead and other heavy metals from the U.S. Navy.
In Minnesota, the Twin Cities Army Ammunition Plant was responsible for contaminating more than twenty square miles of the principal aquifer underlying the northern suburbs of Minneapolis. In the state of Washington, authorities estimate that as many as thirteen hundred hazardous-waste sites mixing radioactive materials with other industrial wastes qualify for Superfund cleanup on the Hanford nuclear weapons reservation; numerous "contaminant plumes" have been observed in the ground water, carrying such deadly chemicals as cyanide and carbon tetrachloride. In Arizona, pollution of an underground area four and a half miles long, contaminated with toxic chemicals that threatened Tucson's sole source of drinking water, was traced to an Air Force plant operated by Hughes Aircraft. [19]
These were not exceptional instances. A survey by EPA in 1988 found that half of all federal facilities caused environmental damage. The General Accounting Office estimated that federal departments violated the clean-water law at twice the rate of private industry.
Many of these federal facilities are in practice operated by private industry -- companies like Du Pont or General Electric that managed the nuclear weapons plants -- but the companies, until recently, were indemnified in their government contracts against any liability for the pollution damage they caused. DOE would pay the fines levied against its contractors -- which put the taxpayers in the role of underwriting violations of law.
The federal government, of course, enjoys a crucial advantage in its ability to evade laws. It owns the prosecutor. Every regulatory case that reaches the stage of formal charges or lawsuits must first pass through a narrow funnel at the Justice Department where the constraint of limited resources encourages negotiation and settlement instead of litigation.
Agencies are told to negotiate a compliance agreement with violators because there simply aren't enough lawyers to go around. During the Reagan years, the Justice Department went much further. Aligning itself with the Pentagon and the Energy Department, Justice argued that their violations were not subject to EPA enforcement action at all. How then would these federal departments be required to comply with the laws? The Justice Department suggested that EPA bargain with them. [20]
***
The cruel legacy of compromised law is that the task of making laws a reality frequently falls to the weakest parties involved -- the ordinary citizens who are the victims. The law enacted in 1970 to protect workers from occupational health and safety hazards has, for instance, been a well-documented scandal from the beginning. When OSHA is enforced, it is often because injured industrial workers, the unorganized rank and file, have decided to mobilize themselves in protest.
A group of such workers from Ohio's Mahoning Valley gathered one Saturday morning in 1990 in the vestry hall of the First Presbyterian Church of Warren to stage their own "public hearing" on the subject of occupational health and safety. A stenographer recorded their testimony for several hours -- bitter recitals about disease and death in the Youngstown area's major factories, involving such well-known corporate names as General Motors.
Dave Webb, lean and gray-haired at sixty-one, described the plating department at Thomas Steel and the long exposed tanks of acid where he worked many years amid deadly fumes. "I just went through the seniority list since 1966," Webb explained. "Out of twenty-four people who died out of the plating department, fourteen died from cancer. Three are still living with cancer. January, two other people died of cancer. So you're getting up around nineteen people."
After his closest friend died, Webb filed a complaint with OSHA, the federal agency created to protect the health and safety of workers, and Webb said OSHA fined the company $11,000, later reduced by $5,000. His arms flailed angrily in every direction as he recounted his complaints:
"We want a yearly physical, they haven't done anything about that. We want warnings put up all over that you are entering a toxic area, they haven't done that. And we asked them to replace the hoods over the plating tanks, they haven't done that. But they always say it's the cost. What's the cost of one person's life? I can't see where you put a monetary value on a man's life if you are not doing safety-wise what you're supposed to be doing."
Alberta Faber, a frail woman in sunglasses and a white painter's hat, kept a diary of her experiences with blackouts, dizzy spells, bleeding at the mouth and other symptoms when she worked in the paint shop at General Motors's huge assembly plant in nearby Lordstown, Ohio.
"I worked right by the oven," she testified, "so of course at night when the fumes came back, they watched to see when my eyes rolled back and I painted the wrong colors. Then we were relieved ... I felt like a canary in a coal mine, really."
Leonard Grbinick, a millwright for twenty-six years at a mill that was first Republic Steel, then LTV, then Warren Consolidated Industries, complained about the "red dirt" that settled on workers' hair and skin. For people with sensitive skin, it caused "sores all over their skin about the size of quarters," he said. Injured workers were reluctant to complain or file for workmen's compensation for fear they might lose their positions. "Like in Tom's case, he couldn't afford to take off," Grbinick said. "He had five children at home to feed. And I felt bad for him." As the union rep in the department, Grbinick took the complaints to OSHA.
"We complained and bitched and moaned about it," he testified, "and OSHA just says, 'This is a nuisance dust.' Well, yes, it is a nuisance. When you get it on your skin, if you're sweating or if you get wet, it will burn you just like somebody put a match to you.... I would like to take some of that nuisance dust and spread it on some of those OSHA officials' desks and let them breathe it for a while."
The most grisly testimony came from John Wilson, who at thirty-three is incapacitated after working several years as a lacquer sprayer at OM Lordstown. "Basically, forty hours a week, I worked in a cloud of lacquer," he related. "At one point, I found a respirator and put it on and was told I wasn't allowed to wear it because there wasn't good air in the booth and I would probably pass out and be hurt ... I started getting bloody noses ... so I complained to my fellow workers and they said, no problem, some of them had had bloody noses for fifteen years. So, unfortunately, this sounds stupid, but I went along with that program."
Wilson displayed a darkly hallucinatory oil painting he had done to depict the symptoms that have incapacitated him -- recurring painful headaches, constant listlessness and disorientation. He receives disability benefits of $500 a month. "I have a tendency to want to smash everything in sight now," he said. "I am fatigued all the time. I wash the dishes and, when I'm done, I have to sit down and take a nap or rest. I am really pissed off, this really makes me mad, I'm sorry."
These witnesses and others were drawn together by anger and also by their personal courage. The sharing of testimonials buoyed their spirits, but the hearing demonstrated just how isolated they were. Among auto and steel workers in the Mahoning Valley, raising complaints about unsafe working conditions is considered a threatening act. Thousands of local industrial jobs have been eliminated by plant closings during the last fifteen years; survivors who still have jobs fear that complaints from workers will simply target their plant for the next closing. The United Auto Workers, once one of the most aggressive unions, now treats the subject gingerly too, fearing the same consequences.
When the federal government created OSHA, one of its purposes was to eliminate this grim trade-off between jobs and health that often faced individual workers and their unions. Federal standards and nationwide enforcement would supposedly make it impossible for companies to squeeze economic advantage out of dangerous working conditions.
For most companies, however, the odds of even getting caught are quite remote since OSHA has only eight hundred inspectors nationwide -- one for every forty-five hundred employers. When violators are cited, the fines are usually inconsequential -- averaging $239 per violation in 1987. OSHA's huge corporate fines that are sometimes well publicized will normally be reduced drastically in subsequent negotiations with company lawyers. The agency won big headlines when it fined Union Carbide $1.3 million for the catastrophic release of toxic chemicals at Institute, West Virginia, when 141 people were injured in August 1985. The bargaining later reduced the fine to $400,000. [21]
"It's a goddamn joke," said John Moran, a safety authority who worked nearly a decade at the National Institute of Occupational Safety and Health, OSHA's research arm, and who now heads an industry-labor safety committee in the construction industry. "In construction, nobody worries about OSHA anymore. They don't take it seriously. The average construction worker has a life expectancy ten to twelve years less than the average. In Indiana, the average construction worker dies at sixty -- before he even collects Social Security.
"The bottom line is the working man and woman in this country come in last. The regulators at EPA and OSHA never talk to the working man or the small businessman. They're dealing with big corporations and trade associations and labor unions."
In construction, for instance, the serious injury rate was actually higher in 1988 than in 1970 when OSHA was created. But, as Moran points out, this outcome is not dictated by market economics but by company decisions. Bechtel, one of the world's largest and most successful construction companies, has a health and safety record "ten times better than other companies," Moran said, because Bechtel executives committed their company to high standards in the workplace. [22]
In the case of the Mahoning Valley, the "public hearing" was organized by a handful of auto workers from GM's Lordstown plant who pulled together a little group they called WATCH (Workers Against Toxic Chemical Hazards) and set out to make the authorities pay attention -- their union, their company and their government. Charles Reighard, one of the workers, described how WATCH got started. "We were startled at how many names we saw in the paper were people from the auto plant who had died and at their ages," he said. They asked Staughton Lynd, a local labor lawyer and former historian at Yale, how to proceed and Lynd advised them to dig out their own facts.
So Reighard and three companions went down to the local library and pored over eighteen months of the obituaries printed in local newspapers. Even they were stunned by what they found. Between January 1987 and July 1988, they counted seventy-five of their coworkers from Lordstown GM who had died of cancer, leukemia, kidney and heart diseases. The average age was fifty-six years; the youngest was a twenty-nine-year-old woman who worked at Lordstown for ten years before she died of cancer.
"We made copies of every one of those obituaries and we have them to prove that the person did die," Reighard testified. "He wasn't killed. He wasn't shot. He wasn't killed in a car accident. He didn't die ten years ago like the union first said. And every one of them is documented that they died of cancer, leukemia or heart disease, kidney failure, and we feel that it's directly responsible from the chemicals they work in."
Their unscientific research did not prove, of course, that toxic chemicals killed these people, but the workers held a press conference to reveal their dramatic findings. The local news coverage produced official embarrassment. The United Auto Workers and General Motors, both originally hostile toward WATCH's agitation, agreed to cosponsor an expert study on mortality rates among Lordstown workers.
"We are confident the study will reveal that there are no problems out there," a GM Lordstown spokesman declared. A month before the study was made public, the plant manager announced that, in any case, the company's continuing efforts had already achieved "zero hazardous materials" in Lordstown's fabrication plant.
When the official joint study of "proportional mortality rates" was completed, it confirmed what the four auto workers had documented for themselves at the local library. The death rate from cancer among the auto workers at Lordstown's two assembly plants was nearly 40 percent higher than normal. At the fabrication plant, it was 50 percent higher. GM and the UAW agreed jointly to dig deeper into the causes.
Three months later, OSHA belatedly swooped down on Lordstown and did a "wall-to-wall" inspection, found 750 violations and announced fines totaling $211,000 (subject to negotiations). The company and the union have since reported progress on dealing with the health problems, though workers inside the plant said they could not see that much had changed. [23]
The only certain political consequence of WATCH's agitation was its effect on workers at other factories in the Mahoning Valley. They were encouraged to come forward to tell their own stories of dangerous working conditions and recount how the government had ignored them too.