Cronyism is Bad, But This is Worse

Brian Tamanaha

Cronyism in the Bush Administration has gotten much of the attention in the aftermath of the failures of FEMA and the nomination of Ms. Miers to the Supreme Court. The focus on cronyism, while a legitimate concern, is a distraction from a much more serious and pervasive effort by the Bush Administration.

According to one detailed report, the Bush Administration appointed former lobbyists, lawyers, or spokespersons to more than 100 high level administrative positions with oversight authority over industries they formerly represented. A number of these individuals went from working as lobbyists, to stints as agency officials in which they undertook regulatory initiatives favorable to industry, and then returned to positions as lobbyists. Rules applicable to high level officials impose a one year moratorium on lobbying, but during this period they are able to work as consultants and lawyers.

At the direction of these appointees, policy initiatives, rule changes, agreements, enforcement actions (or their cancellation or settlement) were implemented by government agencies on terms unquestionably advantageous to industry. FDA lawyers actively appeared in private law suits on behalf of pharmaceutical companies being sued for harm caused by inadequate warnings, arguing in defense of the companies that the FDA has final say over what warnings had to be given. Interior Department attorneys entered an extremely favorable settlement for ranchers who had numerous grazing violations on federal land. An industry supported labor department alteration in the meaning of “management” resulted in several million employees immediately falling outside of federal requirements that mandated overtime pay. The EPA issued a rule change that eased the application of Congressional mandates that coal burning power plants and oil refineries upgrade their facilities to reduce pollution, saving industry hundreds of millions of dollars (and within days of the change, two key agency employees resigned, one to work for a utility company and the other to work as a lobbyist). There are more examples. In several instances agency officials implemented the very same proposals they previously had promoted as lobbyists.

Of particular concern is effort to slant scientific studies to favor the ideological or policy preferences of the Bush Administration. A core justification of the administrative system is the need for scientific expertise to help inform and achieve policy objectives. Respected scientific journals (Scientific American, Science, Nature) have expressed alarm about the politicization of science by Bush agency appointees so extensive and systematic that it has compromised the scientific integrity of the agencies. Advisory boards were stacked with people with strong industry ties; research scientists with years of independent study were replaced by scientists who worked for the industries regulated; research findings unfavorable to industry interests were omitted or deemphasized in reports. The scientific issues affected by these political actions range from setting the danger level of lead exposure for children to specifying the environmental consequences of oil drilling in Alaska. Conservative religious views influenced agency statements to downplay the benefits of condom use as a means to prevent sexually transmitted diseases, to distort the (non-)connection between abortion and breast cancer, to delay the release of the morning after contraception pill, and to shape health policies related to HIV prevention programs for gays.

An example of science being twisted by policy was the saga of the E.P.A.’s 2003 Report on the Environment, touted by the Bush Administration as the most comprehensive and scientifically sophisticated overview of the environment ever produced by the government. An initial draft of the report discussed studies on the possible human contribution to global warming, referring to a report by the National Academy of Sciences. After the draft was reviewed at the White House, this was excised and replaced by reference to a study funded by the American Petroleum Institute which questioned the evidence on climate change. When the edited draft was returned to the E.P.A., internal objections were raised that it was inconsistent with the scientific consensus on climate change. In the end the entire discussion of global warning was omitted from this purportedly comprehensive report.

The main negative consequence of cronyism is that it can place less competent or poorly qualified persons in important government positions—which is pretty bad. This systematic effort of the Bush Administration to take over administrative agencies through its appointees is worse because it threatens to destroy the integrity of the government.

The notion of “industry capture” was once a scandalous idea, but has since become passe. Then public choice theory came along and suggested that industries actually like regulation, which they buy and sell (literally) for their benefit. Naysayers dismissed these ideas as overly cynical, paranoid, or knee-jerk anti-industry. The actions by the Bush Administration make the once extreme-sounding public choice theory appear quite plausible. Perhaps that is because the cynical assumptions posited by public choice theory about the motives of political actors are in fact correct when applied to this batch of political actors.

Unless one believes that what is good for industry is, ipso facto, good for America, these actions must be alarming. But their mention in the press seems to elicit a big yawn—as if it’s boring to be reminded of this stuff. Perhaps we have collectively given up on the ideal that government officials have an obligation to preserve the public trust.
Posted 3:18 PM by Brian Tamanaha [link]