I hear from readers of this Blog practically every day. It is obvious that I am not alone in my strong opposition to the CPSIA. In fact, the pain seems to be widespread, across many industries, forms of business and channels of distribution, and feelings of disenfranchisement and loss remain intense. I get the sense that you recognize that Congress is deaf to your concerns, having made up "its" mind a long time ago. [In fact, this is not entirely true since many members of Congress are on record with strong reservations about the law. It's the Democratic leadership who closed their minds and closed their doors to us.]
Because Congressional leaders (Dems) won't talk to us and aren't motivated to do anything to fix the mess they made, much of the angst now focuses on the CPSC. I have said many times that I don't envy their job. The CPSC is paid to enforce this stupid law, and inevitably, enforcing a stupid law . . . well, it doesn't make you look good. Much frustration and anger has been directed at the agency for doing their unpleasant job, a burden replete with inflexible and uneconomic regulatory limitations, unreasonable workloads and unrealistic deadlines. In addition, the agency is acting in a disciplined way, writing rules to implement a stupid law in the stupid way Congress wanted it implemented. Of course the new CPSC rules look stupid - given where they came from. This could be anticipated - as a Federal agency, the CPSC must simply fill in the holes in the law, not re-write it. [There is Supreme Court law on this topic (Wayman v. Southard (1825): "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.").]
If Congress won't act and the CPSC can't help us, either . . . what do we still want under these circumstances?
I have an answer: we want a demonstration of character by the CPSC. I know those are strong words but it's time to stop beating around the bush. Congress is deaf - face it, if Mr. Waxman gave a damn about you and me, he might have found a couple hours to call a hearing in the last year. He has no intention to act, no matter the pain or waste we have proven (as our dear friend in Senator Durbin's office acknowledged last May). That means that unless we want to wait for someone to save us that isn't going to come, we need the CPSC to rise to the occasion. Notwithstanding the legal analysis above (which I happen to believe is correct), we need MORE from the CPSC and its leadership. They know as well as we do how misguided this law is. They know about our pointless losses and the incredible, wrenching disruptions in our businesses. They also know the law is causing MASSIVE misallocation of their limited resources away from real issues of safety and toward nonsense (like the agency's contemptible Resale Roundup program which has a zero percent chance of preventing an injury or saving a life, or the senseless devotion of hundreds or thousands of man-hours and millions of dollars to the prosecution of safety investigations of ballpoint pens, rhinestones and bikes and ATVs for their lead content). They know this law is ruining their agency and the markets they are supposed to patrol.
The agency's inability or unwillingness to find a way to steer this law to sanity is not as compelled as they might want you to believe. To argue such is nothing more than a cop out. Any lawyer worth his salt can read a law to mean anything he wants. In fact, the agency's tilt toward Congress might be remarkably shortsighted. Is it really in anyone's best interest, including the CPSC's, to play footsie with Congress on such a defective law? The outcome seems pre-ordained to me. Of course, the route of least resistance may be to try to convince America that policies like sending inspectors to garage sales are necessary to "keep kids safe" but how long will that illusion last, and when the mania finally passes, who will still respect the CPSC? They are hitching their wagon to legal lunacy that they themselves recognize clearly.
The solution is character. The CPSC can resist. Notably, they have been given permission by 28 Senators to use their "common sense". Perhaps a little more creativity in legislative construction is needed. Perhaps a little more skepticism about the perfection of Congress' legislative process or Congress' knowledge of safety issues is merited. There once was a day when the CPSC's principal concern was doing the "right" thing (as opposed to trying to please Congress), and the mission of safety was their guiding light. Unfortunately, today's mission seems to be maximizing bureaucracy, not safety. Guys, you are letting us down. We have no one left to turn to but you. Trust, faith and hope in the agency has not been entirely destroyed, despite low points like the pen decision, the ATV decision and Commissioner Moore's recommendation to sequester library books. I, for one, want to continue to believe that I can trust the CPSC, as I have for almost 20 years. I will admit my faith is wavering.
CPSC leadership can strike a different chord, can write different rules and can take more personal risk in pressing Congress for a restoration of rationality to our national standards of safety. This is an issue of character - I think it's time for action.