Wednesday, April 22, 2009

CPSIA - The Delusion of a "Perfect" Process

In early January, I had a conversation with Robin Appleberry (of Henry Waxman's office) and Christian Fjeld (of Bobby Rush's office), two of the principal architects of the CPSIA train wreck. When I asked about how to move forward with modifying the law to fix its (many) flaws, I was told in no uncertain terms that the law would not be reopened. Why? I was assured that the law was designed (carefully) to give the CPSC the power to fix all the problems itself. As I have documented time and again, this is simply not true. In the "Just Say No" defense of the CPSIA advocates, repetition of this "big lie" mantra is part of a strategy to turn fiction into "fact".

In any event, I was told that a principal reason to NOT revisit the law is that it had been "litigated" (their word for the process) so thoroughly. In other words, as a consequence of its "perfect" process (a series of public hearings, deliberations, conference negotiations, Congressional votes, Presidential signature), Congress had ergo delivered the "perfect" law. Perfect laws don't need to be revisited. Uh-huh. I had occasion for this trip down Memory Lane because I recently heard that Ms. Appleberry was trotting out this old chestnut again in recent meetings.

Please don't misunderstand me - it was a nifty process. They called the witnesses they wanted to hear from (namely those whose testimony supported the conclusion they had reached before the hearings), asked the questions whose answers were predetermined, and then conducted "due diligence" by asking a limited number of representatives of industry a limited number of questions behind closed doors. This undocumented "due diligence" was taken at face value and applied as fact to justify the "reasonableness" of the details of the new law. The data they gathered was overwhelming, completely flawed but unopposed.

I remember those days of the "perfect" process when any attempt to reach the players and to contribute to this process was rebuffed. We "evil" businessmen (in my case, a toymaker, horrors!) were not trustworthy and our opinions of the proposed legislative schemes were apparently perceived as self-interested and designed to permit "unsafe" products to be sold. We were labelled implicitly as moneygrubbers and were excluded from their "perfect" process. Naturally, this helped with message control by marginalizing anyone who might disagree with the design of the CPSIA.

The science justifying this law was never properly tested. As my recent blogpost indicates, the data provided by the American Academy of Pediatrics almost singlehandedly proves how absurd the contention is that many of the products regulated by the CPSIA present any detectible health risk to anyone. When presented with this data, I am told the CPSIA honchos are again saying that the science would not be revisited. What a "perfect" process!

In Illinois, we have learned a few things about "perfect" legal processes, notably death sentences. Death sentences are not handed out lightly in Illinois (or anywhere) - there are many legal hurdles to jump over, with detailed findings of fact and other protections of individual rights. Yet, in January 2003, Governor George Ryan made history when he commuted the sentences of all inmates sentenced to death in Illinois because of his concerns over the flaws in the conviction and sentencing process. Ryan was a "perfect" process skeptic.

George Ryan's concern over the "perfect" Illinois process used to hand out death sentences derived from the famous Rolando Cruz case. In 1985, a man named Rolando Cruz was convicted of the notorious rape and murder of 10 year old Jeanine Nicarico and sentenced to death. In a series of legal challenges over many years (ultimately opposed by then State Attorney General, now Senator, Roland Burris), Mr. Cruz's conviction was overturned after a sheriff's lieutenant admitted he had lied under oath and DNA evidence exonerated Cruz. In the wake of this terrible injustice, Governor Ryan initiated a moratorium on death sentences and ultimately issued a mass commutation of all Illinois death sentences. Mr. Ryan's doubts were well-founded.

Had the architects of the CPSIA been our Illinois Governor, the death row would still be stocked with inmates. In their world view, a "thorough" process, well "litigated", need never be revisited, like the one that almost killed Rolando Cruz for a crime he never committed or the case of Anthony Porter whose execution was stayed with two days to go - only to be found innocent later with evidence provided by Northwestern University undergraduate journalism students. George Ryan's stand on death sentences made me proud as an Illinoisan and as an American. Beware of anyone who defends a result by pointing to their process - sometimes it pays to check your work.

I love a perfect process, I really do. But this law is not perfect. The evidence is overwhelming. It's time that the politicians propping up this defective law - and encouraging the CPSC to break the new law to appease vocal constituents - admit their error and do the right thing by amending the law. It's their duty, what they were elected to do. Come on, guys - do your job.


Michael D. Shaw said...

"Come on, guys - do your job."

Rick, Rick, they ARE doing their job. Their only job is to get re-elected.

CPSIA was just another grandstanding opportunity to show how concerned these hapless members are about safety.

And, it worked!

They fooled everyone that they had to fool.

The only way CPSIA changes is via the courts. Why doesn't the parent of some kid who needs Steve Kanor's products start a class action against the US govt?

Get one of these parents on Oprah asking for a sit-down with troll Waxman (yes, I knew him in LA before he was a member--he was a dweeb then, too.)

Of course, if the Republicans had any guts, they could use this as a campaign issue against Waxman. Fat chance, though, because last time, they gave NO support to his attractive opponent, who did it on his own, and still got some votes.

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Rep. Bobby Rush wrote in The Hill (April 28 the following (in case you think this is my imagination): "When President Bush signed the historic Consumer Product Safety Improvement Act (CPSIA) into law in August of 2008, it marked the end of a thorough, deliberative process that spanned over a year. In the House, we held four hearings, adopted numerous amendments, passed the bill on the floor by a unanimous vote, conducted a formal conference with the Senate that lasted three months, and finally passed the conference report by a vote of 424 to 1. Throughout the entire process, Democrats and Republicans worked together and closely consulted with both industry and consumer groups to craft legislation in a thoroughly bipartisan and deliberative fashion. Indeed, it is rare when Congress achieves such a degree of consensus on a major bill. Given this process, calls to reopen this thoroughly vetted new law are premature."

Yup, perfect process, perfect legislation!