Watchdog Blog

About the Battle Between Small Donors And Big Spenders

2009-08-14T17:08:02-04:00

Great post on The Wonk Room from guest blogger Lisa Gilbert, a Democracy Advocate for U.S. PIRG, on the Supreme Court's overreach in the Citizens United case, which may roll back a century of limits on corporate campaing spending. Visit DontGetRolled.org to learn more and Pledge to Protest on September 9th!

Don't Get Rolled!

2009-08-14T17:05:52-04:00

On September 9th, the Supreme Court will hear a case that could roll back a century of limits on corporate campaign spending. Visit DontGetRolled.org to learn more and Pledge to Protest on September 9th!

Whistleblower Rights Advance

2009-07-30T10:51:56-04:00

After many months of advocacy and negotiations, yesterday the Senate Homeland Security and Governmental Affairs Committee approved a bipartisan bill that will dramatically strengthen and modernize protections for federal government whistleblowers.

Finally, this bill would allow many federal workers to bring their claims of retaliation for whistleblowing before a jury of their peers should the administrative agency fail to rule within a reasonable amount of time. Federal scientists and transportation security workers get much-needed specific protections. The Whistleblower Protection Enhancement Act of 2009 (S. 372) also closes several loopholes in the current law, including what qualifies as a protected disclosure.

While there is room for improvement in the bill, it is far and away a stronger bill than was passed last year in the Senate, and much closer to the House version, H.R. 1507. Public Citizen would like to see full access to jury trials, without qualifiers or sunset provisions, as well as coverage for all federal contractors. Work also must be done to ensure that if there is a board reviewing claims by intelligence workers, that it is truly independent and functional. We are encouraged that there will be opportunities to address some of these key reforms which are still needed as the legislation continues to move through the House and Senate.

Members of the committee, their staff, and White House liaisons worked with us in the whistleblower and taxpayer rights community to forge a bill with strong bipartisan support. They are to be commended, as are the members of the committee for their votes today--but none more than the lead co-sponsors Sens. Daniel Akaka (D-Hawaii), Susan Collins (R-Maine), Joe Lieberman (I-Conn.) and George Voinovich (R-Ohio) and their diligent staff for pursuing a bill that we expect will pass the Senate without objection soon.

The federal system for whistleblowing has been broken for a long time, causing countless workers to suffer in silence after witnessing waste, fraud or abuse in government. Today there is more hope than ever that the system soon will be fixed to truly protect whistleblowers and taxpayers.

To help us get it done, please visit here or www.WhistleblowerAction.org.

Live online town hall on Fair Elections

2009-07-30T09:52:02-04:00

Tune in to watch a live online town hall with Representative John Larson today (Thursday, July 30) at 2:00 pm (EST). Congressman Larson, a Democrat from Connecticut, will answer questions about the Fair Elections Now Act, which he introduced to curb the influence of corporate and special-interest money in the legislative process. We've set up a page where you can find out where your Representative stands on this critical bill and take action to take big money out of politics.

Defensive Medicine: Rhetoric Meets Reality

2009-07-28T17:12:18-04:00

by Kiren Gopal

In his July 24th piece in the Washington Post, columnist Charles Krauthammer rails against “jackpot justice” and defensive medicine, which he calls “the greatest waste” in our health care system. He contends that “doctors order [tests] for no good reason other than to protect themselves from lawsuits.” But his self-righteous claims are more than suspect, considering that overwhelming evidence shows that so-called “defensive medicine” is not a meaningful cause of rising health care costs. The Congressional Budget Office (CBO), which Krauthammer himself cites in his column to argue that not enough is being done to reduce Medicare spending, has concluded that the link between liability and defensive medicine is “weak or inconclusive” and “at best ambiguous.”

A reader’s letter responding to Krauthammer’s exaggerated rhetoric presents an additional factor that contributes to health care costs, which he calls “offensive medicine.” That is, doctors perform more tests and recommend more procedures, primarily because under the reigning fee-for-service model they benefit financially from each test and procedure ordered rather than on patient outcomes. This and other incentives that the present system engenders have been estimated to cost $700 billion a year – a number that former CBO director Peter Orszag, has discussed often.

Considerable evidence of misaligned incentives also exists in the case of “self-referral” – where physicians own their own testing equipment or have a financial stake in imaging centers to which they send their patients. A 2008 study published in Medical Care found that rates of use increased by almost 400 percent for PET scans and 50 percent for MRI and CT scans in cases where physicians self-referred, compared to those originating from a referral to a radiologist or hospital.

By focusing on baseless claims about defensive medicine Mr. Krauthammer indeed does ignore the real troubles facing the U.S. health care system. Health care reform must expand coverage, improve quality, and reduce cost. Part of reducing costs must be realigning incentives toward improving patient safety. Krauthammer unfortunately chooses instead to ring the alarm about defensive medicine with no evidence to back up his claims.

More Money for Mine Safety

2009-07-17T09:55:17-04:00

by Kiren Gopal

On Tuesday, Public Citizen sent letters to members of Congress and the President, urging more funding to address a startling backlog of cases at the Federal Mine Safety and Health Review Commission. The commission is an independent adjudicative agency that decides disputes involving the Mine Safety and Health Administration (MSHA), mine operators, and employees. Since the 2006 mine tragedies in West Virginia and Kentucky, and Congress’ response in the form of the MINER Act, the mining industry has disputed safety violations and civil penalties at an unprecedented rate. Most of the public’s focus on improving mine safety has remained on MSHA, the enforcement agency. The commission has not received the requisite attention - and now is experiencing a build up of 13,000 cases, which is expected to balloon to nearly 20,000 by the end of 2010.

The commission is in desperate need of more administrative law judges and staff, yet the current chairman, a former attorney for the National Mining Association, has failed to request the funding necessary to carry out the agency’s duties. By way of comparison, the Occupational Safety and Health Review Commission, which has a similar function, has $2.5 million more in current funding while the mine safety commission has 20 times the number of cases. In the meantime, as thousands of these cases languish, mine operators are off the hook from paying their penalties for maybe years, until their cases are decided. By contesting and thus avoiding penalties due to the unprecedented delays, mine operators have less of an incentive to take extra safety measures.

The relatively small amount of money necessary to get the commission functioning properly would be money well spent. Common sense regulations and fines keep the industry accountable and ensure the workplace safety of America’s miners. Congress should increase funding for the commission and President Obama should appoint a new chairman to get the agency back on track.

Enact the Consumer Financial Protection Agency

2009-07-16T12:32:54-04:00

Our friends at Consumer Federation of America have put together a video to support the creation of the Consumer Financial Protection Agency. Check it out below.

Amendment Goes Down the Hatch

2009-07-10T17:08:29-04:00

by Kiren Gopal

In a resounding defeat of Senator Hatch’s medical liability amendment, the Senate H.E.L.P. Committee voted 13-10 yesterday against imposing an arbitrary cap on damages. This is an important signal to the Finance Committee that restrictive limits on medical liability will not address our rising health care costs or incentivize a reduction in avoidable medical errors. The amendment would have also imposed contingency fee limits, restrictive statutes of limitations, and raised the burden of proof. Measures like these do nothing to combat the very real problem of medical malpractice. “Between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim,” according to Public Citizen’s latest study. Given these staggering statistics, limiting negligent provider accountability is not a sensible solution.

Time to Put an End to the Paper Chase

2009-07-08T14:53:59-04:00

Though presumably most senators (or their campaign staff) now use computers, they continue to file their campaign contribution forms on paper -- preventing us from learning quickly and easily how their campaign coffers are being filled and by whom. The Senate Campaign Disclosure Parity Act (S. 482) would require Senate candidates to submit their campaign finance forms electronically, as House candidates already do.

The bill could finally be up for a vote this week or next. But, in spite of strong public support for the measure, Sen. Pat Roberts (R-Kan.) has taken up the mantle from (recently embarrassed) Sen. Ensign (R-Nev.) to try and kill it by attaching an irrelevant and unconstitutional amendment. Unbelievably, the Ensign/Roberts amendment would force nonprofit organizations to expose their donors when they file ethics complaints against senators. We can't imagine which senators would vote for that one, but I suppose it could be interesting to find out.

Please call your senators today and let them know the Roberts amendment is unconscionable and it's time to pass S. 482. If you have another minute, you also may want to call Sen. Majority Leader Reid's office and ask that he bring this bill to the floor for a vote: 202-224-3542.

from Angela Canterbury and Glenn Simpson

Ignoring Patient Safety = $1 Trillion Waste

2009-07-08T10:51:39-04:00

Former Bush administration Treasury Secretary Paul O’Neill identified a simple but crucial element that should be front and center in the health care reform debate and legislation: improving patient safety, which would, in turn, reduce health care costs.

O’Neill rhetorically asked in this New York Times op-ed piece:

Which of the reform proposals will eliminate the millions of infections acquired at hospitals every year?

Which of the proposals will eliminate the annual toll of 300 million medication errors?

Which of the proposals will eliminate pneumonia caused by ventilators?

Which of the proposals will eliminate falls that injure hospital patients?

Which of the proposals will capture even a fraction of the roughly $1 trillion of annual “waste” that is associated with the kinds of process failures that these questions imply?

“So far,” O’Neill wrote, “The answer to each question is ‘none.’”

O’Neill calls it waste – that is, the unnecessary harms done to patients on a daily basis and, he estimates, a trillion dollars in annual costs to address those harms. He said that hospitals themselves can adopt simple processes, such as hand-washing and proper preparation of surgical sites, to cut down on costly injuries and deaths. He also suggested that members of Congress seek more information on the dire problem of hospital-acquired infections, provider errors and other similar “waste indictors.” To sum up, he said: “(A)ny health care reform that does not address the pervasive waste and the associated burden of needless suffering for patients and staff alike will give us little to celebrate.”

Congress should heed O’Neill’s call.

Misplaced Malpractice Reform

2009-07-07T15:10:25-04:00

by Kiren Gopal

According to President Obama, health care reform should control costs, expand coverage, improve care, and guarantee choice. As Congress works to find politically palatable solutions to achieve those goals and health care interests continue to lobby – to the tune of $1.4 million daily – some legislators instead choose to offer proposals to limit medical liability.

These proposals are based in part on the theory that frivolous malpractice claims are epidemic and represent a significant component of health care costs. But according to the latest Public Citizen study of the National Practitioner Data Bank, nearly two-thirds of the individuals who were compensated in 2008 suffered an injury that resulted in “significant permanent injury, major permanent injury, quadriplegia, brain damage or the need for lifelong care, or death.” These claims can hardly be described as frivolous. Perhaps the most telling point from the NPDB study is that the medical malpractice liability system accounts for just 0.6 percent of national health care costs. Reducing accountability for medical malpractice is clearly an unsuitable focal point for reducing unnecessary costs.

Groups like the American Medical Association and Common Good also contend that “defensive medicine,” where providers order unnecessary tests out of fear of lawsuits, also contributes to rising health care costs. But both the Congressional Budget Office and the National Bureau of Economic Research concluded that the effects of limiting tort liability on the practice of “defensive medicine” are “weak or inconclusive” and “at best ambiguous.”

It is against this backdrop that some senators introduced amendments to restrict patients’ rights. Senator Hatch’s amendment, for example, would impose an arbitrary cap on damages, leaving patients who suffer significant permanent injuries without adequate compensation. But in the states, measures like this have not driven down costs. A recent article in the New Yorker, examining health care costs in a small Texas town, observed that although Texas capped malpractice awards in 2003, today McAllen is the second most expensive health care market in the country. Further, consumers’ insurance premiums and Medicare spending in Texas have continued to rise even after caps on damages became law.

Although none of these amendments has been adopted, there is reason to be concerned. For example, Senate Finance Committee Chair Max Baucus released a health care reform white paper last November which contained liability proposals in the form of administrative compensation tribunals. These “alternatives” are more similar to caps on damages than they seem because they are likely to limit compensation and immunize negligent providers from accountability. Whether the chairman will allow such provisions in the health care legislation is a matter to which we should pay close attention.

Sorry Works: Change We Can Believe In?

2009-06-24T11:30:32-04:00

by Kiren Gopal

At a recent speech before the American Medical Association, President Obama expressed a concern for medical malpractice lawsuits and said that “we need to explore a range of ideas” to tackle the issue. However, the president hasn’t offered much in the way of clarification of his position on medical liability reform. The only indication was a reported comment of a White House spokeswoman who “pointed to his support as a senator for a mediation program known as ‘Sorry Works.’”

In 2006, then-Senators Obama and Clinton introduced MEDiC (National Medical Error Disclosure and Compensation). They wrote in the New England Journal of Medicine that the program would provide grant money to health care providers to “implement programs for disclosure and compensation.” In practice, this means that health care providers would disclose medical errors to the patient, offer an apology, and then try to negotiate compensation. Additionally, the data yielded from the program would be analyzed to determine best practices. The potential benefits of such a program are manifold: improved quality of care, more effective doctor-patient communication, and lower administrative and legal costs.

Successful implementations of similar models are in place at the University of Michigan Health System and the VA Hospital in Lexington, KY. These programs have drawn on scholarship “explaining the importance of apology,” writes Robert Leflar in the Yale Journal of Health Policy, Law & Ethics. Proponents “assert that contrary to long-standing assumptions of liability insurers and hospital defense lawyers, disclosure and apology have in fact the practical benefit of diffusing some of the dissatisfaction that leads to compensation claims…” And Professor Jonathan Todres notes that “[a] study published in the Lancet, the leading British medical journal, found that as many as 37% of medical malpractice plaintiffs reported that they would not have filed their lawsuits if their doctors had sincerely apologized instead of stone-walling…An apology facilitates patients’ emotional healing.”

All of this is not to say that sorry works is a cure-all – or that any type of sorry works program would benefit patients. The details matter. Any federal legislation providing grants to set up these programs must ensure that the statute of limitations is tolled while negotiations for compensation are ongoing. A similar tolling requirement is contained in Vermont's sorry works program. Patients should also be encouraged to obtain legal counsel during negotiations. If safeguards are put in place to ensure that patients can still use the courts if they choose and not be disadvantaged by having gone through the sorry works process, then the program could work well. For patients, it could potentially offer an easier way to obtain needed compensation; for both patients and doctors it could reduce legal defense costs considerably; and most important, by producing information on best practices for patient safety, it would address the root cause of medical malpractice and improve the quality of care.

Testifying on Behalf of More Accountability and Transparency

2009-05-14T09:53:11-04:00

On May 14 at 10:00 AM, Congress Watch Advocacy Director Angela Canterbury testifies in support of the the Whistleblower Protection Enhancement Act of 2009 before the House Committee on Oversight and Reform. We believe that as our country faces challenges of historic proportions, one reform can save billions of taxpayer dollars and help fulfill the imperative for more transparency and accountability: authentic whistleblower protections for all federal employees. Learn more about whistleblower protections, watch her testify live online and read her written testimony, then take action.

Poll: Americans Oppose Forced Arbitration, Demand Corporations Be Held Accountable

2009-04-29T12:48:51-04:00

Wide support exists across party lines for Arbitration Fairness Act; consumers, employees from around U.S. lobby lawmakers today

Washington, DC – Americans widely oppose corporations using mandatory binding arbitration clauses in the fine print of consumer and employment contracts, according to national polling of likely voters conducted by Lake Research Partners.

Forced arbitration clauses are hidden in the fine print of everything from cell phone, home, credit card and retirement account terms of agreement to employment and nursing home contracts. Just by taking a job or buying a product or service, consumers and employees are forced to give up their right to take their case to court if they are harmed by a corporation.

The poll results bolster already heightened scrutiny by lawmakers of credit cards, mortgages, and other common consumer and employee contracts. The bipartisan Arbitration Fairness Act (H.R. 1020) was introduced by Rep. Hank Johnson (D-Ga.) in the House of Representatives and will be introduced in the Senate by Sen. Russ Feingold (D-Wis.) today. The measure will ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen, so corporations cannot manipulate the arbitration system in their favor at the expense of consumers. The Fairness in Nursing Home Arbitration Act (S. 512 / H.R. 1237), introduced by Sens. Mel Martinez (R-Fla.) and Herb Kohl (D-Wis.) and Rep. Linda Sanchez (D-Calif.), would eliminate forced arbitration clauses in nursing home contracts.

"The findings show clearly that Americans strongly oppose forced arbitration, and they see the Arbitration Fairness Act as a remedy. Not only is there real intensity to this view, but it traverses traditional partisan divides," said Lake Research Partners President Celinda Lake. "Forced arbitration clauses – which are buried in the fine print of employment and consumer contracts – are another example of corporations taking advantage of ordinary Americans. The public supports the Arbitration Fairness Act because equal justice under the law is a core American value."

The poll shows that:

Six in 10 likely voters support the Arbitration Fairness Act – including majorities of Democrats, Republicans and Independents;
59 percent of likely voters oppose the use of mandatory binding arbitration clauses in employment and consumer contracts;
Two-thirds of respondents cannot remember ever reading about a forced arbitration provision buried in the fine print of employment terms or agreement for goods and services; and,
More than 70 percent of respondents believe they could take their employer or a corporation to court in the event of a dispute, unaware they could be subjected to mandatory binding arbitration.

The results were unveiled today at a press conference in Washington, D.C., organized by the Fair Arbitration Now Coalition, which represents consumers, employees, homeowners and franchise holders. The groups range from Public Citizen, the National Association of Consumer Advocates, the National Employment Lawyers Association and the American Association for Justice to the National Consumer Voice for Long-Term Care, Home Owners for Better Building and the Leadership Conference on Civil Rights.

“The Arbitration Fairness Act does not seek to eliminate arbitration and other forms of alternative dispute resolution agreed to voluntarily after a dispute arises,” the groups wrote last month in a letter to lawmakers. "Its sole aim is to end the unscrupulous business practice of forcing consumers and employees into biased arbitrations by binding them long before any disputes arise."

More than 50 consumers, employees and advocates lobbied lawmakers today to pass the Arbitration Fairness Act. They came from Alabama, California, Georgia, Iowa, Louisiana, Maryland, Michigan, Minnesota, New Hampshire, Ohio, Pennsylvania, Tennessee, Texas and Virginia to speak about how forced arbitration makes it nearly impossible to hold companies accountable for wrongdoing.

"One of our indelible rights is the right of a jury trial," Johnson said. "Guaranteed by the Constitution, this right has been gradually ceded by citizens every day as they purchase a new cell phone, buy a home, place a loved one in a nursing home, or accept a new job. Once used as a tool for businesses to solve their disputes, arbitration agreements have found their way into employment, consumer, franchise and medical contracts."

Added Feingold, "Americans are sick and tired of a system that so strongly favors big corporations over consumers and in this case robs them of their constitutional right to their day in court," Feingold said. "Americans are often given no choice but to give up their rights if they want to sign credit card agreements, cell phone contracts, job applications or other basic contracts. It's time for Congress to side with consumers and employees and end this practice of forced arbitration, which stacks the deck against the people Congress is supposed to represent."

Members of Congress will hear from people like David Kurth, of Burlington, Wis., whose father William died in 2005 due to severe neglect of care while in a nursing home facility. When the Kurth family tried to hold the nursing home corporation accountable in court, they were told that another family member had signed a forced arbitration clause. A judge agreed and said the case could not be heard in court.

"Nursing home corporations are using arbitration clauses as liability shields to insulate them from their own wrongful conduct," said Kurth at today’s press conference.

The survey reached 800 adults nationwide, 18 years or older, who are likely to vote in the 2010 elections. The overall margin of error is +/-3.5%. The poll was commissioned by The Employee Rights Advocacy Institute For Law & Policy and Public Citizen, and funded by The Public Welfare Foundation. Pollsters Celinda Lake and Daniel Gotoff of Lake Research Partners are also available to discuss the poll results. Please see media contacts above to arrange any interviews.

For more information, visit www.FairArbitrationNow.org.

CONTACT:

Ray De Lorenzi , American Association for Justice
202-965-3500 x749, ray.delorenzi@justice.org

Angela Bradbery, Public Citizen
202-588-7741, abradbery@citizen.org

Donna Lenhoff, The Employee Rights Advocacy Institute For Law & Policy
202-898-2880, dlenhoff@nelahq.org

The President Indicates Support for Whistleblowers

2009-04-22T11:57:57-04:00

At the beginning of April, we asked President Obama clarify his position on government employees who blow the whistle on waste, fraud and abuse. We were confused because Obama the candidate, as well as Obama the senator and Obama the young attorney, strongly supported whistleblower protections. And yet, his first official statement as president regarding whistleblowers sent a mixed signal.

Congress passed, as part of an omnibus appropriations bill, a whistleblower and accountability-friendly provision to deny pay to any federal officer or employee who interferes with or prohibits certain communications from federal employees to members of Congress. The president unnecessarily qualified this provision in his signing statement, which could have a chilling effect on the expose of wrongdoing.

We found this puzzling and troubling. But finally, the president has reaffirmed his support for strengthening whistleblower protections. In his weekly radio address on April 18, President Obama had this to say about efforts to reform spending and government waste:

That starts with the painstaking work of examining every program, every entitlement, every dollar of government spending and asking ourselves: Is this program really essential? Are taxpayers getting their money’s worth? Can we accomplish our goals more efficiently or effectively some other way?

It’s a process we have already begun, scouring our budget line by line for programs that don’t work so we can cut them to make room for ones that do. That means ending tax breaks for companies shipping jobs overseas; stopping the fraud and abuse in our Medicare program; and reforming our health care system to cut costs for families and businesses. It means strengthening whisteblower protections for government employees who step forward to report wasteful spending.

Yes. It's time to ensure meaningful protections for the government workers who guard the public trust and money, including access to a jury trial, as President Obama has supported in past statements. Let's get it done soon - and not waste another tax dollar - or put another career at risk.

Insider Trading: How Congress Can Make Big Bucks at Our Expense

2009-03-23T17:49:03-04:00

It has been a difficult start for the financial services sector thus far in 2009 - yet it may be even more difficult to excuse the multitude of bad decisions made by Wall Street already (refusing to release information about bailout spending, Bank of America's $10 million super bowl ads, obscenely large bonuses for AIG executives...the list goes on). Thankfully, it looks like Congress and the federal government are finally getting more serious about oversight of Wall Street and the financial sector.

Now also would be a good time to put an end to secret spending and insider trading immunity for government officials.

A recent piece of legislation proposes to do just that. Introduced by Reps. Brian Baird (D-Wash.), Louise McIntosh Slaughter (D-NY) and Tim Walz (D-Minn.), the “Stop Trading on Congressional Knowledge Act” (H.R. 682) would ensure that those with access to privileged "non-public information" gathered through oversight proceedings would not be able to use that information for personal benefit in securities and commodities trading.

Specifically, H.R. 682 would negate a little-known loophole in the law which could allow members of Congress as well as executive staffers and government officials to practice insider trading in order to enrich themselves as well as their associates. Of course, this type of insider trading would be wholly illegal for citizens like you and me.

The act would also be effective in combating corrupt lobbying practices, since lobbyists and stock traders ("political intelligence consultants") who haunt the halls of Congress precisely in order to glean insider tips from staff would also be banned from insider trading.

The legislation would require members of Congress and their staff to disclose stock transactions of $1,000 or more within 90 days, and require “political intelligence consultants” to register under the Lobbying Disclosure Act and disclose their financial activities.

The time to pass this legislation is now, before our tax dollars pay for any more lucrative insider investments.

Posted by Craig Holman

Arb Study Points Out System's Lack of Checks and Balances

2009-03-12T15:52:16-04:00

Opponents of the Arbitration Fairness Act strained to see a glass half full in a new study on consumer arbitrations administered by the American Arbitration Association, but they didn’t realize that the tonic contained a poison pill.

The study – released Wednesday by the Searle Center, a conservative Northwestern University think tank – found that consumers received an award in 53 percent of the cases they initiated and received about 52 percent of the amount they sought in those cases. Businesses received an award in 84 percent of cases they brought and won 93 percent of what they ask for in those cases. This means that businesses got roughly 78 percent of what they sought compared to 28 percent for consumers.

Nonetheless, Lisa Rickard, the chief of the Chamber of Commerce’s legal policy arm, raced out a statement claiming the study showed arbitration to be "a fair, inexpensive and unbiased option" for consumers. (Her use of the word “option” was a bit ironic given that the Searle report examined only cases in which consumers were forced into arbitration by a contract clause; meanwhile, the Chamber is vigorously fighting the Arbitration Fairness Act, which would ensure that consumers have the option to go to court.)

While it is difficult to construe a finding of fairness from the study’s results (Businesses 78, Consumers 28), other data in the report undermined the proposition of arbitration’s fairness in a much more fundamental way – and the Chamber swallowed it whole.

The study found that AAA flagged nearly a quarter (23 percent) of the cases it received because businesses had included terms in their arbitration clauses that violated AAA’s due process rules. These violations included imposing excessive costs on consumers, limiting remedies, calling for arbitration hearings to be held in distant locations, and failing to provide for an impartial arbitrator. In most instances, the business agreed to modify its rules and the case went forward. But AAA refused to take nearly 10 percent of the cases.

Rickard cheered this finding: "AAA actively promotes consumer fairness by strictly enforcing their due process rules and refusing to administer arbitration in cases where businesses were repeat violators of the AAA’s protocol."

Oops. While this finding made AAA look good, it is devastating to the current legal regime surrounding arbitration, which is akin to the Wild West. Let’s say, purely hypothetically, that AAA is a paragon of fairness, and is entirely impervious to financial incentives to recruit and maintain customers. Maybe, in fact, AAA’s business clients so value their reputation that they will only use an arbitration firm of impeccable integrity. The Searle study touches on this proposition by suggesting that some businesses might actually want pro-consumer arbitrators just as some retailers instruct their return-desk employees "to give customers every benefit of the doubt."

This view sounds a bit Pollyannaish. But even if accurate in some cases, it still would do absolutely nothing for consumers who find themselves in disputes against companies that do not share that outlook – which are likely the vast majority. Does anybody really believe payday lenders are guided by a "customer is always right" philosophy? What about health insurers? Credit card and cell phone providers? Most businesses have every incentive to choose an arbitration firm that’s good for the business, not the consumer. Public Justice litigator Paul Bland pointed this out in response to a Wall Street Journal blog item. [Scroll to “Update” for Bland’s remarks]

It’s important to realize that businesses have complete control in designating who is eligible to conduct their arbitrations, that arbitration firms are entirely self-regulating, and that consumers’ recourse against even the most blatantly egregious arbitration rulings is next to nil.

None of this is to say that the report completely exonerates AAA. The study also revealed that while AAA polices contract terms in lower stakes cases, it does not do so for higher-stakes cases (those in which more than $75,000 is at stake). This is not a misprint. "Administrative review is limited to cases seeking $75,000 or less," the Searle study says. "The Protocol still applies in cases in which the claimant seeks more than $75,000, but in those cases decisions on application of the Protocol are for the arbitrator."

AAA’s fallibility and the lack of any assurances about other firms point to consumers enjoying almost no expectations of fairness in binding mandatory arbitration. Sure, arbitration might look fair in some instances. But those instances wouldn’t say much about the overall fairness of a system in which one side of a legal dispute can force the other into a hand-picked, private tribunal. Accepting that kind of system amounts to a public policy of crossing one’s fingers and hoping for a benevolent master. If our Founders had that philosophy, they would have commissioned a search committee for a better king and spared themselves from spending a hot summer in Philadelphia – indoors, with the windows closed – while they hammered out a system of checks and balances.

Time to Blow the Whistle on Washington

2009-03-07T00:38:37-05:00

Beginning on Sunday, an important assembly will convene to urge Congress to take the next step forward in strengthening accountability and transparency in government. The 2009 National Whistleblower Assembly is a gathering of whistleblowers and advocates organized by the Make It Safe Coalition. Over the course of four days, the assembly will lobby members of Congress, share stories, and educate the public. The event takes place in Washington D.C. from Sunday, March 8th - Wednesday, March 11th.

As we've said over and over again, whistleblowers ensure real accountability, protect our tax dollars in the stimulus and other government spending, and are indispensable to a healthy, non-corrupt government. It's a disgrace that speaking out about government fraud, misconduct, waste and corruption is still such a risky endeavor, especially in these times, after countless studies have verified that whistleblowers are the most effective weapon against fraud.

If you can, please join us in D.C. and take a stand for government accountability and civil servant rights. But if you can't make it to Washington, you can still help. You can join those making the rounds to members of Congress from home.

For more information about this event and whistleblower and taxpayer rights, visit us here.

Guns, Votes and DC

2009-03-02T19:49:01-05:00

On last Thursday, the Senate finally approved at least one vote in Congress for the long-disenfranchised citizens of the nation's capital. That was the hand that giveth . . .

The other hand promptly took away the common-sense gun control laws put into place by the locally-elected government of Washington, D.C.

Senator John Ensign (R-NV) offered an amendment to the D.C. House Voting Rights Act (61-37) that - if it should become law - could make D.C. one of the most free-wheeling-gun-toting places in the country. It passed by 62-36. That's right - more guns got one vote more than democracy.

First of all, what business does Congress have removing safeguards on selling and possessing firearms that meet the standards set by the highest court? The D.C. City Council recently amended its local gun laws to comply with a Supreme Court ruling. There is no sound reason for Congress to use extraordinary powers to preempt the democratic will of the people of D.C. - especially to make the city less safe.

This gun measure is more than symbolism, or politics: It's about public safety. Specifically, the gun amendment would undermine federal anti-trafficking laws, repeal D.C.’s ban on military-style weapons, allow teenagers to possess semiautomatic assault rifles, and prohibit D.C. from passing laws that could “discourage” gun possession or use, by anyone - even children or felons.

And exactly what do gun laws have to do with the right to vote? House leadership should not consider this or any other non-germane proposal with this civil and voting rights bill. This is about righting a historic wrong and bringing more democracy to the so-called capital of the free world.

It seems some in Congress think it is within their power to rule over the more than half a million people who live in the District of Columbia, even if those people have no democratic representation in Congress. This has got to change. It's time to tell members of the House that We the People are more powerful than the gun lobby who are pushing to have their interests imposed upon District residents.

The House likely will vote on the bill on Wednesday, March 4. Hopefully, they will walk our nation's democratic talk and do right by the people of D.C. by restoring their voting representation in the House AND rejecting any attempts to undermine their local democratic government. If they succeed, members of the House will then need to negotiate with the Senate for the removal of the dangerous and unnecessary gun amendment. President Obama should not have to consider whether to sign a divisive gun measure into law at the same time he acts to return voting rights to the citizens of the District.

If you live outside of Washington, D.C., please feel enfranchised to give your rep. a nudge to take a stand for more democracy now. District residents can thank their non-voting delegate, Eleanor Holmes Norton, for tirelessly fighting for their rights.

Victory! Lobbyist No Longer Up for DOJ Nod

2009-02-25T15:42:56-05:00

The news is in: Mark Gitenstein is no longer being considered as a candidate to head the DOJ's Office of Legal Policy, according to the Huffington Post, Roll Call, and several other sources. The concerns about this longtime corporate lobbyist that we first raised on February 2 and reported in yesterday's post apparently have been heeded.

According to Roll Call, this decision has been confirmed by an administration official.

It's encouraging to see the Obama Administration standing by its ethics policy.

Ian Millhiser deftly captured the significance of this decision in his Huffington Post article:

Hopefully, this decision will serve as a cautionary tale to other ambitious and talented individuals who, despite a long career of progressive accomplishments, are tempted to work in support of practices as abusive as binding mandatory arbitration.

Our sentiments exactly.

Likely DOJ Nominee Has Long History of Lobbying Against Consumer Rights

2009-02-24T10:29:00-05:00

We've been keeping a close watch over the Obama Administration's potential nominees to ensure that members of the new administration will be advocates for consumer and taxpayer rights.

We recently issued an investigative report on Mark Gitenstein, a longtime corporate lobbyist, who may get the nod to head the DOJ's Office of Legal Policy.

Gitenstein's long list of corporate lobbying activities appear to directly violate President Obama's ethics policy prohibiting executive branch employees from becoming appointed to "issue areas" in which they have acted as lobbyists within the last two years. A closer look at Gitenstein's lobbying reveals that he has sought to weaken or eliminate vital consumer protections, including the False Claims Act, which has saved billions of taxpayer dollars, and access to court to hold corporations accountable for bad behavior.

Gitenstein's past actions seem to be in stark contradiction with Obama's executive order governing conflicts of interest, and clash with Obama's regular calls for more accountability for government and corporations alike.

Public Citizen sent a letter to Obama raising concerns about Gitenstein's long history of corporate lobbying activities, and suggesting that the possible nomination be reconsidered. We also joined forces with the Project on Government Oversight, Government Accountability Project, and other noteworthy organizations to make the Senate Judiciary Committee aware that this potential candidate does not have our endorsement.

Deputy AG-Nominee is "a big believer in whistleblowers"

2009-02-09T15:12:46-05:00

This just in from Steven Aftergood's "Secrey News" blog with the Federation of American Scientists:

David W. Ogden, who has been nominated to be the next Deputy Attorney General, last week expressed strong support for government whistleblowers who help to expose corruption or malfeasance.

“I am a big believer in whistleblowers,” he said at his February 5 confirmation hearing before the Senate Judiciary Committee, “and in the need to make sure that people feel comfortable coming forward to make complaints.”

“I think what we need is a process that encourages whistleblowing in this administration and any other administration going forward. The business of making sure that we’re doing the right thing is an ongoing business,” Mr. Ogden said in response to a question from Sen. Sheldon Whitehouse.

He said he would work with the Attorney General “to fashion an appropriate process that encourages whistleblowers to raise issues that need to be addressed.”

Mr. Ogden also indicated a willingness to consider public disclosure of certain legal opinions of the Foreign Intelligence Surveillance Court.

Sen. Ron Wyden noted that “there are a lot of important rulings that go to the meaning of surveillance law, and I think that a lot of those kinds of judgments really could be redacted and declassified so that the country could be brought in in a more informed, a more complete way to these national-security debates.”

“I absolutely will commit to take a fresh look at this issue if I’m confirmed,” Mr. Ogden said.

FIS Court opinions that interpret surveillance law were one of several categories of “secret law” that were identified (pdf) in an April 30, 2008 Senate Judiciary Committee hearing on the subject.

Original post available here.

A personal letter from Bunny Greenhouse

2009-02-09T14:11:51-05:00

Below is an important letter from Bunnatine Greenhouse who spoke up regarding the approval of a highly improper muti-billion dollar no bid contract to Halliburton for the reconstruction of Iraq. In retaliation for her courage she was removed from her position as the highest-ranking civilian contracting official at the Army Corps of Engineers.

My name is Bunny Greenhouse. I am the former Procurement Executive and highest-ranking Army Corps of Engineers civilian procurement official.

Today I am asking you to contact your Senators and Representatives to demand, in the strongest possible terms, that employees who disclose fraud in federal contracting are fully and properly protected in the 800 billion dollar stimulus package that Congress is currently debating. Here's why.

Shortly before the Iraq War commenced, I blew the whistle on improper contracting concerning the award of a multi-billion dollar no-bid, cost plus contract to Halliburton/KBR for the reconstruction of Iraq.

I was concerned that improper contracting activity would cost the taxpayers billions – and it did. The contract should not have been awarded. From my inside prospective, it was clear that the “fix was in” – the contract was going to be awarded to Halliburton no matter what I said or did.

Those who should have protested the contract remained silent. And their silence is not surprising because, as federal employees, we have no meaningful whistleblower protection! We can be fired for reporting fraud. We can lose our careers simply for doing our job and trying to protect the taxpayer.
I know this is true. It happened to me. The top brass demanded that I drop my protests. I refused. The top brass – many of whom had longstanding relations with government contractors – retaliated. They removed me from the Senior Executive Service and from anything having to do with contract oversight. When I went to federal court to demand protection the judge dismissed my case because as a federal employee I had no protection.

The bottom line is that without access to independent courts, real judges and juries, whistleblowers don’t stand a chance, and fairness and transparency will not see the light day.

Only Congress can fix this. The House of Representatives has already acted decisively by adding H.R. 985 to the stimulus bill, by a unanimous voice vote (now called H.R. 1, Section IV). President Obama's presidential campaign is on record as supporting the same whistleblower protections now found in House version of the stimulus bill.

So, the buck stops with the Senate. I urge you to contact your Senators and let them know that whistleblower protection is a critical part of the stimulus package for protection of the public trust. I urge you to contact your Representatives and tell them to hold strong -- and refuse to cut whistleblower protections from the bill. Federal employees, like me, who risk their careers to protect taxpayer money need to be protected.

Please act now! Pass this letter to your friends! Pass this letter to your co-workers! Pass this letter to your family! Send a letter to your Senator Now!

Billions of taxpayer dollars are at stake and it is up to the Senate to do the right thing.

Very truly yours,

Bunnatine H. Greenhouse
Former Procurement Executive
Army Corps of Engineers

Post Editorial Misses Mark on Whistleblowers: Protections in Stimulus Bill Help Workers Hold Government Accountable

2009-02-03T12:52:52-05:00

Today our whistleblower coalition responded to the Washington Post's outrageous editorial from February 2, 2009.

A Joint Statement from a Coalition of Public Interest Groups

Monday’s Washington Post editorial, “Wrong Way to Protect,” did a disservice to its readers and the taxpayers when it opposed provisions in the economic stimulus bill that are designed to empower federal whistleblowers.

The editorial argues that the reform should be pursued through ordinary legislative channels rather than included in the stimulus, stating “This is not the way it’s supposed to work.” This is exactly how it is supposed to work: Federal whistleblower protection legislation has had the benefit of hearings, and has been vetted in both chambers for several years. This is not an extraneous measure, as the editorial suggests. In both chambers, the original stimulus bills included whistleblower protections for state and local employees. Members of the House had the good sense to recognize that the massive stimulus package creates an urgent need for federal employees, who are the taxpayers’ first line of defense against waste and fraud, to be given the same protections afforded state and local employees.

Congress has diligently built a record to strengthen federal whistleblower protections through a robust legislative history (see fact sheet below). Identical whistleblower protections overwhelmingly passed the House as a stand-alone measure, 331-94, in 2007. Despite eight years of hearings, committee meetings, mark-ups, and four House and Senate votes, federal employees who expose waste, fraud and abuse remain vulnerable to intimidation, reassignment and termination, with no effective means to fight retaliation. Even so, whistleblowers each day risk their careers and come forward with evidence of misconduct, much to the benefit of The Washington Post and other newspapers that have earned prizes for their reporting on information whistleblowers provided.

In addition, the editorial cites curious concerns about disclosures of classified information (which could have been cleared up with a careful reading of the text). There is nothing in the bill to condone any “breach” – “unilateral” or otherwise. However, after some members of Congress raised legitimate concerns about the procedure for disclosure of classified information, the House managers agreed on the floor to work together with the Intelligence Committee to address those concerns. The members who raised the concerns were satisfied, and voted for the whistleblower amendment. We too are confident that those issues will be resolved. In fact, because the law will allow for only lawful disclosures to those with the appropriate security clearances, it actually will prevent leaks and so-called "breaches."

But it is important to recognize the central purpose behind protecting federal employees in the stimulus:

Taxpayers need their help in detecting fraud and waste. The stimulus bill authorizes the expenditure of billions of taxpayer dollars; as taxpayers, we need the best oversight possible. Countless studies have verified that whistleblowers are the most effective weapon against fraud. This includes recent statistics by the U.S. Department of Justice, which announced that whistleblowers were responsible for returning over $1 billion to the U.S. Treasury in 2008 alone. In addition, PriceWaterhouseCoopers recently surveyed more than 5,000 corporations worldwide and found that whistleblowers, by far, were the most effective means for the initial detection of corporate fraud, besting internal auditors and law enforcement. The editorial asserts that it is somehow “disingenuous” to claim that whistleblowers will “enhance accountability.” But the evidence shows that there is no better means of enhancing accountability. We believe there is no excuse to spend another $888 billion without first locking in this proven accountability safeguard. Lastly, whistleblower protections, unlike every other provision in the stimulus, will save money, not spend it.

If lawmakers reject these provisions, they will be sending federal employees a very strong signal: Keep your head down and don’t rock the boat. Employees know what happens to colleagues who step forward and expose waste, fraud and abuse in government. Federal workers who have reported wrongdoing have lost more than 98.5 percent of cases at the Federal Circuit Court of Appeals since 1994, when Congress last unanimously strengthened the law. During the entire Bush administration, the U.S. Merit Systems Protection Board ruled only twice that the whistleblower law was violated.

It’s time to end the culture of secrecy and guarantee that the federal workforce has our support in making sure our stimulus dollars are spent honestly and effectively.

Whistleblower Legislative History Fact Sheet available here.

For more information on whistleblower protections, visit WhistleblowerAction.org.

Statement by:

American Federation of Government Employees ● Government Accountability Project (GAP) ● Liberty Coalition ● National Employment Lawyers Association ● National Treasury Employees Union ● National Whistleblower Center ● OpenTheGovernment.org ● OMB Watch ● Project on Government Oversight ● Public Citizen ● Union of Concerned Scientists ● U.S. Bill of Rights Foundation

Public Citizen Applauds House Vote to Encourage Federal Workers to Watchdog Spending of Taxpayer Dollars

2009-01-29T17:14:51-05:00

We applaud the House of Representatives for answering the call on Wednesday for more meaningful transparency and accountability in the federal spending bill. House lawmakers passed a critical, bipartisan whistleblower protection amendment offered by Reps. Todd Platts (R-Pa.) and Chris Van Hollen (D-Md.) that will strengthen and expand protections for federal workers and contractors who report waste, fraud and abuse. We strongly urge the Senate to include the same commonsense whistleblower protections in its stimulus spending legislation.

This is a true victory for taxpayers who will be well-served if the final stimulus bill empowers hard-working federal employees and contractors who are uniquely positioned to observe and report if funds are mishandled. Workplace retaliation for reporting wrongdoing is real and ruthless. That’s why we have long fought for these critical protections.

The original Whistleblower Protection Act of 1989 has become ineffective, worn down by obstructionist administrative policies and a monopoly court that repeatedly left whistleblowers vulnerable and without justice. The consequences of the gutting of this law have never been more apparent as we suffer an economic crisis brought on by a culture of secrecy in government and unregulated greed and corruption on Wall Street.

The new whistleblower provisions should become law so that federal whistleblowers will no longer fear intimidation and retaliation for reporting wrongdoing. The whistleblower measures overturn a series of activist court decisions and include consideration for and protections of disclosures of possible wrongdoing made during regular job duties; codify protections against retaliatory investigations; allow for due process for security clearance revocation – a favorite reprisal technique; extend specific protections to federally funded scientists, as well as baggage screeners and other Transportation Security Administration personnel; and end the monopoly of the Federal Circuit Court of Appeals of appellate review, restoring the right to an appeal in any appropriate U.S. court of appeals and access to jury trials.

The new whistleblower protection measure originally was championed by Rep. Henry Waxman (D-Calif.) and passed the House by a vote of 331-94 in 2007, but eventually was stymied by Senate inaction. Thanks largely to the support and leadership of House Speaker Nancy Pelosi, as well as that of Reps. Platts, Van Hollen, Waxman, Bruce Braley (D-Iowa), Chellie Pingree (D-Maine), House Oversight and Government Reform Chairman Edolphus Towns (D-N.Y.), Homeland Security Chairman Bennie Thompson (D-Miss.) and the other representatives who have spoken out in support of the measure, these effective protections now can become the law of the land.

With our allies from a broad coalition of groups representing millions of concerned individuals, Public Citizen will continue to advocate for strong protections for federal workers and contractors so they can effectively safeguard the public trust and taxpayer dollars. It should not take incredible acts of courage to become a government whistleblower, as it does now, when only the bravest civil servants come forward to report waste, fraud and abuse. It’s time to end the era of repression and ensure that all civil servants feel safe to do their jobs and make our government more open and accountable to the American people.

Deadline tonight: Tell your reps to vote for accountability in government

2009-01-27T15:40:48-05:00

President Obama has asked Congress for a federal spending bill to get the economy moving again. Billions of tax dollars are already being spent in the bailout and billions more are needed to begin to dig us out of this financial crisis. But before we agree to this massive spending bill, we must know that someone will be watching the store. We must ensure that federal employees can blow the whistle waste, fraud or abuse - without fear of retaliation or reprisals!

We now have a chance to protect whistleblowers and make sure there is real accountability in the economic stimulus package! But we have to act quickly!

Two champions of accountability, Representative Chris Van Hollen (D-MD) and Representative Todd Platts (R-PA), have offered an amendment to the stimulus bill that would restore and strengthen protections for federal workers who blow the whistle. This is the same bill that we have long supported and that passed the House with overwhelming support in 2007.

Congress is voting this evening on whether the economic stimulus should include protections for federal workers who blow the whistle on waste, fraud and abuse.

We need you to call your representative now and ask for support for federal government employees! You can find your member of the House here, or simply call the Capitol switchboard (202) 224-3121and ask for your representative.

Please tell your member of Congress to support federal employee whistleblower rights and vote yes on the Platts/Van Hollen Amendment today!

We’ve been fighting for these whistleblower protections for a long time. Passing the stimulus bill passes with these protections in place would be an outstanding victory for all of us who have fought for government accountability over the years. Please call your member of Congress today!

Let us know your thoughts on how your call went! Email us at action@citizen.org.

Obama’s Swift Actions Will Hold Government Accountable

2009-01-22T16:57:03-05:00

Today, Public Citizen president Joan Claybrook lauded President Obama for swift actions to hold the government accountable. The statement follows:

President Obama campaigned with the promise of change, a commitment to government openness and a pledge to uphold high ethical standards. On his first full day in office, the new president showed a willingness to turn rhetoric into action.

After eight years of government in the shadows and preferential treatment of corporate lobbyists under his predecessor, President Obama’s directives and executive orders on presidential records, the Freedom of Information Act, transparency and open government, and ethics are not only important in restoring public access to critical information and holding government accountable, but they serve to reaffirm the hope our nation has in his presidency. By issuing strict rules on the future lobbying activities of his administration, President Obama slowed the revolving door that has allowed so many high-ranking government officials to enrich themselves at the public’s expense. And by emphasizing the openness of government records, the orders help to ensure that abuses of power will not go unnoticed and uncorrected.

Public Citizen called for the critical reforms President Obama signed Wednesday. We have fought in court and in Congress to repeal the former administration’s efforts to shield presidential records and withhold information from the public; we have urged steps be taken to increase transparency and openness; and we have long pushed for stricter rules on ethics and more accountability. The directive to the incoming attorney general, the chief technology officer, the director of Office of Management and Budget and all of the agencies is clear: The new administration will operate under the presumption of disclosure and with an "unprecedented level of openness in Government." The public will be involved more in making policy where once only lobbyists had influence.

We urged President Obama to act on his commitments to ethics and openness on day one of his presidency. His swift action and the symbolism of putting these orders at the top of his agenda speaks volumes about the possibility of change under the new administration.

We are struck by the words President Obama offered Wednesday, that his "administration stands on the side not of those who seek to withhold information but those who seek to make it known." There is much more to be done if President Obama wants to keep his promise of ending the insidious cycle of business-as-usual governance but we are very encouraged with his first steps.

Update on Consumer and Civil Justice News

2008-12-30T15:43:09-05:00

Happy holidays. With so many people on hiatus from last week until January 5, we thought a brief recap of some recent consumer and civil justice news might be useful:

CBS News legal analyst Andrew Cohen responded to an absurd proposal from the U.S. Chamber of Commerce to President-elect Obama: the way to get the country back on track economically is to exempt companies from legal liability. Cohen analogized this selfish and short-sighted appeal to "child who kills his parents and then begs for mercy because he is an orphan." I like to think of it as a drunk driver who gets pulled over and then suggests to the police that the best way to resolve the situation would be to give him his keys back and look the other way while he drives himself home. Cohen recognizes this shameless argument for what it is: nonsense.
Following the Fed 's recent enactment of new credit card rules, Sen. Robert Menendez (D-N.J.) called on lenders to comply with the reforms ASAP, rather than by the July 2010, date required by the rules. Other lawmakers have pledged to act quickly for more timely and comprehensive reforms. Last weekend, the New York Times editorialized that "promptly passing a credit card reform package" should be a priority for the next Congress.
Class action lawsuits have been useful to consumers challenging baseless early termination fees (ETFs) in cellular telephone contracts. A recent story in the Times reported on efforts by Sen. Herb Kohl (D-Wis.) to investigate rate setting for cell phone text messaging plans. Perhaps unsurprisingly, those rates appear to be as baseless as ETFs. In another similarity to ETFs, consumers have begun filing class actions over text messaging rates.
New America Foundation's blog has been following an old but infuriating story about a shady student lending practice in which lenders, like Ohio-based Key Bank, partner with unlicensed and unaccredited trade schools, disburse student loan money to the schools, and then refuse to discharge students of their debts when the schools go out of business. There is an FTC rule designed to protect students in these situations. One way that Key Bank has been evading the rule and other charges of unfairness over its practices is by including Binding Mandatory Arbitration clauses in the promissory notes. Key Bank insists that these are old cases, and it has ceased student loan operations (for the time being), but Key also received $2.5 billion from U.S. taxpayers (via the U.S. Treasury) as part of the bailout package.

Meanwhile, we must wait until after the New Year for word on a potential economic stimulus bill. Until this week, all signs seemed to indicate that authority for judges to modify mortgages would be included as part of the package. Now that congressional Republicans have indicated a willingness to drag their feet, the question appears to be not only whether the provision will be included in the stimulus, but also when the stimulus will be enacted. Stay tuned.

Happy new year to all!

Pollan for Secretary of Ag?

2008-11-20T13:10:27-05:00

by Kendra Pierre-Louis

There’s a rumor circulating around the foodie and agricultural corners of the internet that President-Elect Obama might choose best selling author and New York Times contributing writer Michael Pollan as his new Secretary of Agriculture.

At first blush this seems to be a ludicrous idea.

After all, Michael Pollan’s own biography lists him first as a writer and secondly as a professor (he is the Knight Professor of Journalism at UC Berkeley). His educational background, he received a B.A. from Bennington College, where he focused on literature, and an M.A. in English from Columbia University, only seems to add to the ridiculousness of the idea. Where is his agriculture experience? In fact, words such as “farmer”, “agriculturalist” or “agronomist” appear nowhere on his CV.

Mr. Pollan seems a foolhardy choice, until one examines the substance of his writing. From The Botany of Desire, to his most recent, In Defense of Food, Pollan shows a nuanced understanding of how our food systems should behave, namely to feed people in a manner that sustains life. Instead, our current food system lines the pockets of agribusiness while wreaking havoc on the environment and compounding our health and energy problems.

To even a casual observer our current system of agriculture does not make sense.

We raise cattle and pork in confined feed lots located thousands of miles away both from where their animal feed is grown, and from the lands of the people who will dine on them. And nearly as strange, the average apple, for example travels 1,726 miles, or the distance from Portland, Maine to Miami, Florida, from the orchard to the table despite the fact that most Americans live within 60 miles of an apple orchard.

As Michael Pollan eloquently wrote in a New York Times column titled “Farmer in Chief”, the way America farms contributes more to global greenhouse gasses than anything else we do, and it uses more energy than anything else America does besides drive. In addition, four out of the ten biggest killers in the United States, heart disease, stroke, Type 2 diabetes and cancer, are chronic diseases strongly correlated to diet.

Currently, our farm policy is dominated by what’s best for a few agricultural concerns and food distributors and not by what is in the best interest of the average American, America as a nation, or even more bizarrely most farmers. As family farms across the nation must shut down or consolidate under policy rules which prioritizes quantity over quality and gives us supermarket shelves lined with foods of dubious nutritional nature, it is time, for every American who has ever picked up a fork, spoon, chopstick or spork, to take a step back and ask, “is this really what we want to subsidize?”

Our new Secretary of Agriculture cannot be myopic in his or her focus, and has to extend beyond mid-western and agribusiness interests. He or she must recognize the linkages between how America eats and the gallons of foreign oil we must import each year from nations with which we share uneasy relations. When Obama decries rising health care costs, he or she must be able to point to the farm bill as at least one of the reasons behind America’s ever burgeoning waistlines.

As Pollan points out in "Farmer in Chief," unless President-Elect Obama makes the reform of the entire food system one of the highest priorities of his administration he will be unable to make the progress on the health care crisis, climate change, and energy independence which he campaigned on.

The ethicurean, a blog which focuses on sustainable food issues has created a list of more likely candidates for Secretary of Agriculture. For those hoping for change in America’s farm policies, this list is dismaying. Most have ties to mid-western farm concerns; all have ties to large agribusiness.

None appear to be capable of helping Obama usher in the change that we so desperate need. Michael Pollan, however, does.

What’s the most compelling argument in pushing for Michael Pollan as Secretary Of Agriculture? Obama’s a fan.

If you're also a fan, here's an online petition.

Kendra Pierre-Louis is a research intern for Public Citizen’s Congress Watch division and a graduate student at the SIT Graduate Institute in Brattleboro, Vermont. As a summer farm worker she saw first hand the disturbing effects of our current farm policy.

The CPSC and Voluntary Safety Standards

2008-11-14T14:45:42-05:00

In a Washington Post article yesterday noting a 46 percent drop in the number of toy recalls, Consumer Product Safety Commission Acting Chair Nancy Nord partially attributed the significant decrease of dangerous toys on the shelves to stronger voluntary safety standards. Ironically though, at a conference last month, Nord told her audience that the agency’s voluntary standards work will be scaled back, and data reports and important “safety work” would be delayed. She blamed the cut back on the agency’s implementation of the Consumer Product Safety Improvement Act, which was enacted this summer. According to Nord, the CPSC is unable to implement the new law and conduct other important safety activities at the same time.

D.C. residents can die in combat but have no say in Congress

2008-11-12T13:42:34-05:00

originally posted by Joe Newman on Citizen Vox

Left, Right, Left, Right, Left, Right, Left.

You can march off to battle,

But steer clear of the polls.

Fight for us, die for us

but don’t forget your role.

– from “The New Cadence” by Estilito Diaz

Unlike previous rallies in support of D.C. voting rights, the one today in front of the U.S. Capitol was different. There was a sense that the fight to give the District of Columbia a seat in Congress might be gaining momentum. As people all over the country are saying, it’s a new day.

It doesn’t hurt that the D.C. Voting Rights Act has supporters in high places. President-elect Barack Obama has indicated he’ll support the act, D.C.’s Delegate to the House of Representatives, Eleanor Holmes Norton, told the supporters gathered for the Veteran’s Day rally.

“He told me he will sign the bill,” Norton said. “It’s up to us to get him a bill to sign.”

The rally was organized by D.C. Vote and co-sponsored by: AFL-CIO, Alliance of Justice, American Jewish Committee, Anacostia Coordinating Council, Common Cause, Friends of the Earth, Greater Washington Urban League, Public Citizen, Unite HERE Local 25, USAction, Women’s National Democratic Club, ROOTS and the National Capitol Region of Veterans and Military Families for Progress.

Speakers included D.C. military veterans who spoke about serving in defense of the country while being denied full representation before Congress at home. Michigan poet Estilito Diaz also gave a stirring recital of his poem, “The New Cadence,” which he wrote the day before.

Some people in the activist community say with the shift in political power, the District should seek more than a single seat in Congress. Some say it’s time to push for full statehood or at least two full seats in the House.

Angela Canterbury, director of advocacy for Public Citizen’s Congress Watch division, says activists should focus on achieving the first step of creating a Congressional district for D.C.

“We now have a golden political opportunity to pass a bill we’ve been trying to get passed for years,” she said. “Let’s get our seat at the table then we can turn to other, bigger goals.”

You can show your support for D.C. residents and the D.C. Voting Rights Act by writing your member of Congress.

photos by Joe Newman

FDA Puts BPA Under Further Review

2008-11-06T09:40:57-05:00

A couple of weeks ago, we decried the FDA's cozy relationship with industry in its announcement that the safety of products containing BPA was "adequate." It looks like we weren't the only ones who noticed. Friday, an advisory panel agreed that the FDA's report created "a false sense of security" regarding the safety of BPA. According to the Washington Post, the toxicologists on the panel "said the FDA had relied too heavily on studies funded by the chemical industry to make its decision." The FDA deserves credit for taking a second look at the science behind its decision, but this whole episode only further demonstrates that the danger of our federal agencies outsourcing their work to the industries they regulate – a trend the Obama administration should look to reverse.

Editorials, Conn.'s Experience Suggest Pro-Public Funding Sentiment

2008-10-24T14:29:18-04:00

Barack Obama's $150 million haul in September so dramatically exceeded the $84 million grant he would have received had he opted in to the presidential public funding system that many pundits have declared the system moribund.

But a recent spate of newspaper editorials, the successful implementation of a public funding system in Connecticut and general disgust with the current regime among politicians suggest that sentiment in favor of public funding lives on, and may be increasing.

The Baltimore Sun, Philadelphia Inquirer and Orlando Sentinel all editorialized in recent days in favor of updating the presidential public funding system to make it viable. Candidates who participate in the system receive matching funds in the primary season and a government grant for the general election. In exchange, they agree to spending limits for the primaries and not to spend money beyond their grant for the general. The primary election system cratered in 2000, when then-Gov. George W. Bush opted out and far outraised the limits he would have otherwise faced. Obama has become the first major party nominee to opt out for the general election.

Meanwhile, there are signs that public funding, in general, might be enjoying a renaissance. The New York Times this week reported that Connecticut's fledgling public funding system for state elections is experiencing high levels of participation by incumbents and challengers alike:

At a time when roughly half the states are seriously considering public financing of campaigns, Connecticut’s initial experience has exceeded the expectations of even its most enthusiastic supporters. Of the 343 candidates running in General Assembly elections, 258 — about 75 percent — are seeking public financing.

Also in Connecticut, Republican Rep. Chris Shays and his democratic challenger, Jim Hines, both endorsed public funding for congressional elections.

JAMA Editorializes Against Preemption in Wyeth Case

2008-10-24T10:40:02-04:00

The Journal of the American Medical Association has joined the New England Journal of Medicine (published by the Massachusetts Medical Society) in urging the Supreme Court not to grant immunity to pharmaceutical companies for lapses in FDA-approved prescription labels.

As we described earlier this week, pharmaceutical giant Wyeth has asked the Court to throw out an award to a patient whose right arm had to be amputated because a Wyeth drug was administered in a way that caused it to enter her arterial bloodstream, which was a well-known hazard. The patient, Diana Levine, persuaded a jury in state court that Wyeth's label should have warned against the method of injection that caused the drug to enter her arterial bloodstream and necessitated the amputation. Wyeth argues that the FDA's approval of its label should immunize it from liability over any of the label's shortcomings, thereby preempting state laws.

JAMA's editorial says:

The Wyeth v. Levine ruling will have far-reaching and profound implications for patients and drug safety. If the court rules in favor of Wyeth, endorsing preemption, patients will lose an irreplaceable method for seeking remedies for injuries resulting from pharmaceutical agents that were approved by FDA.

Medical Marketing & Media has written a summary of the editorial, the first portion of which is available for free on JAMA's Web site. [subscription required to view the entire article]

Given JAMA's pursuit of limitations on patients' rights to seek redress in court for medical malpractice, its endorsement of the civil justice system's merit as an adjunct to the regulatory system in the context of pharmaceuticals is somewhat surprising and deserving of commendation. Although the publication operates at arm's length from the American Medical Association, its staff serves at the pleasure of its parent association, as longstanding JAMA editor Dr. George Lundberg learned in 1999 when he was fired for fast-tracking an article about definitions of sex to coincide with the Clinton impeachment hearings, which JAMA's management deemed inappropriate.

This month's editorial may have been influenced by a Dutch study published elsewhere in JAMA's October issue which found that 70 percent of biologicals approved in the United States and Europe between 1995 and 2007 wound up being investigated after they went on the market because of newly discovered side effects. Complications involving 19 of the 136 drugs approved in the United States were so serious that bold, black box warnings – the strongest notices carried on U.S. prescriptions – had to be created for them. Med Headlines has a summary of the study; JAMA has posted the abstract.

Public Citizen Files Complaint for Violations of Franking Privilege

2008-10-23T15:26:57-04:00

U.S. Rep. Peter Roskam (R-Ill.) appears to have abused his franking privileges and violated U.S. House of Representative rules against using taxpayer funds to pay for political mailers promoting himself within 90 days of the general election, Public Citizen charged today in a complaint filed with the House Commission on Congressional Mailing Standards.

Members of Congress are allowed to distribute mass mailings to their constituents at taxpayer expense touting their legislative records ("franked" mail), but not within 90 days of an election. A bipartisan Commission on Congressional Mailing Standards, known as the "Franking Commission," is responsible for oversight and regulation of the franking privilege in the House of Representatives.

"Right up into October, just weeks before the election, voters have been receiving two-page color mailers paid for by taxpayers, with Peter Roskam's name splashed all over them," said Joan Claybrook, president of Public Citizen. "Taxpayers should not be footing the bill to advertise Roskam's candidacy for Congress."

"Using tax dollars to pay for campaign literature is a clear violation of the franking laws," said David Arkush, director of Public Citizen’s Congress Watch division. "The mailers are campaign advertisements, plain and simple. They promote Roskam for things like 'Protecting Children from Poison' and 'Securing Our Borders.' "

Roskam consistently has tapped taxpayers to pay for mass mailings to his congressional district, amounting to almost $200,000 in legitimate franked mail from January 2007 through June 2008. The franking rules bar sending mass mailings to constituents after Aug. 6.

If the commission finds a violation, it will refer the matter to the House ethics committee for enforcement. The ethics committee has wide latitude in all its enforcement actions, ranging from a private letter of reprimand, to civil penalty, to removal from office. This issue likely would result in a letter of reprimand and a requirement that the campaign reimburse taxpayers for the franked mail.

"We urge the ethics committee to severely reprimand Roskam and require him to pay a civil penalty and pay back the taxpayers for any franked mail sent out since early August," said Craig Holman, campaign finance lobbyist for Public Citizen.

Read the complaint here.

McCain-Feingold Reality Clashes With WSJ Narrative

2008-10-23T15:16:06-04:00

The Wall Street Journal's editorial board on Wednesday leveled an oft-repeated but misleading attack on the law commonly known as McCain-Feingold. The Journal, an opponent of campaign finance reform, took a measure of satisfaction in arguing that John McCain's fundraising deficit is due to the very legislation he sponsored:

The ultimate irony – perversity, if you're a Republican – is that the great champion for today's system is none other than John McCain. Having pushed for the government to limit money in politics, he is being outspent – and, should the polls hold, beaten – thanks in part to the laws he worked tirelessly to put on the books.

What the Journal and other drive-by critics of campaign finance reform miss is that McCain-Feingold was not really intended to limit money in politics and certainly was not intended to limit campaign contributions to candidates. The law actually doubled the maximum amount an individual could contribute to candidates, from $1,000 to $2,000 per election (a figure since adjusted for inflation to $2,300).

What McCain-Feingold did was stop the political parties from accepting corporate or union contributions, which candidates were already prohibited from doing. An honest attack on McCain-Feingold would have to start with a claim that the country was better off with the political parties trading favors in exchange for corporate and union contributions of hundreds of thousands – and sometimes millions – of dollars (in 2002, for example, Fannie Mae and Freddie Mac lavished $4.2 million in soft money on the two major parties).

If the Journal wants to make that argument, we would welcome the debate.

Whistleblower Trapped in Arbitration

2008-10-21T13:29:23-04:00

An opinion issued earlier this month by the 2nd U.S. Circuit Court of Appeals shows how willing the courts can be to uphold binding mandatory arbitration clauses even if the courts find elements of them unfair.

The case involved Linda Guyden, who was hired by Aetna Inc. in January 2004 as the company's internal audit director. Guyden soon concluded that Aetna's internal audit department was ineffective, leaving the company susceptible to violating the Sarbanes-Oxley Act of 2002. After receiving unsatisfactory responses from various members of Aetna's senior management team, Guyden took her concerns to the firm's CEO in August 2004. A week later, the firm's chief financial officer gave Guyden a withering performance review that conflicted with a positive review he had given her only a month earlier. Along the way, Guyden won an intra-company battle to hire an outside auditor. In November, ten days before Guyden was slated to present the outside auditor's report to the firm's audit committee, she was fired.

Guyden's case was custom-made for a clause in Sarbanes-Oxley that provides whistleblower protections to employees who are fired for providing supervisors with information about potential violations of federal securities law. Guyden filed an administrative complaint with the Labor Department, as the statute requires. But Labor failed to take action, later explaining that it takes a hands-off approach to cases in which employees have signed an agreement to settle disputes in arbitration and the department is satisfied that the arbitration agreement will "adequately protect the employee's interests." Labor based this decision on a memo by former Solicitor of Labor Eugene Scalia (son of the Supreme Court justice) that was written in response to a Supreme Court decision expressly permitting government agencies to litigate on behalf of employees who had signed agreements to arbitrate. While purporting to "welcome" that authority, Scalia's memo called for balancing it with our "liberal federal policy favoring arbitration agreements," as the Supreme Court put it in 1983. Notably, the Court articulated that sentiment in the context of a business-versus-business dispute eight years before it even decided that the Federal Arbitration Act applied to employment disputes.

After Labor failed to take action, Guyden followed the statute's instructions to file a case in federal district court. Aetna, predictably, moved to force Guyden into arbitration. The district court granted the motion, and Guyden appealed.

Guyden's over-arching argument on appeal was that the arbitration clause should not apply to Sarbanes-Oxley whistleblower claims because the statute was intended to serve the public purpose of protecting the financial markets. But the appeals court was not persuaded, noting that Congress had rejected amendments that would have forbidden mandatory arbitration of SOX whistleblower claims.

Aside from her sweeping claim against arbitration of SOX whistleblower claims, Guyden raised three complaints about Aetna's arbitration clause that she argued should have invalidated it.

First, Guyden attacked the clause's confidentiality provision, which said that "all proceedings, including the arbitration hearing and decision, are private and confidential, unless otherwise required by law."

The appeals court sympathized with Guyden, agreeing that "a lack of public disclosure may systematically favor companies over individuals." But the panel said it could not act on this concern because "confidentiality clauses are so common in the arbitration context" that attacking them would be "an attack on arbitration itself." That would constitute a "generalized attack" on arbitration, which the Supreme Court has prohibited in light of its "strong endorsement" of arbitration. Let's translate. The appeals panel found that confidentiality terms in arbitration clauses systemically favor businesses, but that such favoritism is so ubiquitous that it cannot be policed without impugning the very institution of arbitration, which the Supreme Court has deemed sacrosanct.

Next, Guyden argued that the arbitration clause's stipulation that the arbitrator would only be required to write a brief summary of his or her opinion could allow the arbitrator to issue a ruling at odds with the law and mask the flawed reasoning in a vague summary. That, Guyden said, would leave her without options for judicial review because "no one would be the wiser." Notably, Scalia's memo calls for arbitration clauses to require written awards "setting out not only the award but also the essential findings of fact and conclusions of law on which it is based" as a factor in determining whether arbitration would indeed protect the employee's interests and thereby justify Labor opting not to take up a case. But, just as these arbitration terms did not sway the Labor Department, they also failed to persuade the appeals court. Because Guyden could not show that the arbitrator would in fact ignore the law and mask that transgression in a vague opinion, the appeals court found this factor insufficient to strike down the clause. Of course, if the arbitrator did do as Guyden feared, that very act would likely deprive her of the evidence she would need to prove it.

Finally, Guyden argued that the arbitration clause's limitations on discovery, which permitted each party to depose only one person (aside from expert witnesses) without special permission from the arbitrator would prevent her from vindicating her claim. The appeals court again sympathized with Guyden, noting that deposing only one person was "unlikely to be adequate." Here too, Guyden might have expected support from the Labor Department, given that Scalia's memo calls for "access to the information reasonably relevant to the arbitration" and "reasonable mutual discovery" as factors in the department deferring to arbitration. But just as Guyden got no help from Labor, the appeals court also failed to step in. The panel said a claim about limited discovery in arbitration constituted "an attack on the character of arbitration itself," which, as previously discussed, it deemed off limits. Also, the court discounted Guyden's claim because the clause permitted the arbitrator to allow extra discovery. Because Guyden was unable to prove that the arbitrator would not exercise that discretion, the appeals court found Guyden's complaint insufficient "unless and until the record proves otherwise." It is unclear what record Guyden would be able to rely on later on.

Thus, Guyden struck out before the appeals court, and must decide whether to try her luck in arbitration. Meanwhile, the accounting problems that she raised and the outside auditor's report she commissioned remain secret.

The court of appeals agreed with some of Guyden's concerns but appeared to think its hands were tied by Supreme Court rulings that have interpreted the Arbitration Fairness Act as making arbitration agreements almost inviolable. The Court has based this interpretation on the faulty assumption that arbitration offers an equivalent form of justice to the courts. Such reasoning ignores the vital point that in nearly all business-versus-individual disputes, the business chooses the arbitration firm that handles the case. Obviously, allowing a business to hire a firm to choose the judges and juries who decide its disputes would be unthinkable in court.

The clearest solution to this mess is for Congress to pass the Arbitration Fairness Act, which would ban pre-dispute binding mandatory arbitration clauses in consumer and employment contracts altogether. Congress also should resolve any ambiguity that real whistleblower protections require due process and access to a jury trial. The Private Sector Whistleblower Protection Streamlining Act would do so by explicitly banning mandatory arbitration in Sarbanes-Oxley and similar whistleblower cases. In the meantime, the new president could show leadership on corporate and government accountability by issuing an executive order instructing the Labor Department and other agencies to pursue employment cases solely on the merits, regardless of any contractual arbitration claims.

Bush Taxman Calls for Making Corporate Returns Public

2008-10-20T17:37:49-04:00

In an op-ed in Saturday’s Washington Post, former IRS Commissioner Mark Everson offered an interesting short-order proposal to respond to the financial crisis. Along the way, he articulated a rebuke to the sanctity of corporations that one might not expect to hear from a former Bush administration official.

To increase businesses' transparency, "a proper starting point is to make corporate tax returns available to the public, not just to the IRS," wrote Everson, who served as commissioner of the IRS from 2003 to 2007, following a six-month stint as a deputy director of the Office of Management and Budget.

Because tax returns include "important information about corporations beyond that available in financial statements," Everson said that making such information public would assist state and federal regulators as well as financial analysts. Surprisingly, Everson wrote, the IRS is prohibited from sharing corporate tax information even with the Securities & Exchange Commission or Justice Department "except in narrow circumstances."

Perhaps the most compelling part of Everson's column was his response to critics who would undoubtedly argue that "corporations, like individuals, have a right to privacy." In his column, Everson explained that corporations deserve to be treated differently because they receive special treatment. "Corporations need not automatically enjoy the same rights as individuals," Everson wrote. "Their owners are shielded from liability, which is implicitly shifted to others, as recent events demonstrate."

Everson concluded by proposing that "at a minimum," the companies receiving bailouts should be required to make their returns public. "After all, Americans routinely provide copies of their federal tax returns to financial institutions before they give us money," he wrote. "Shouldn't entities looking for taxpayers’ help do the same?"

Bad Court Ruling Could End Checks on Industry Funded 'Science'

2008-10-20T16:44:11-04:00

Yesterday, the Washington Post noticed a disturbing trend that we have been following for a long time – the corporatization of scientific research ostensibly conducted by unbiased and trustworthy sources like, in this case, the Food and Drug Administration. Science has been twisted to serve corporate ends for decades – see the tobacco industry's "studies" showing that smoking is not dangerous. Most of the time, these justifications for unhealthy or dangerous products are given precisely the credibility they deserve – none. Perhaps realizing this, the new trend is to funnel money behind the scenes to get disreputable science published by reputable sources.

The FDA's tarnished report on bisphenol A (BPA) is only the most recent incident of corporatized science. In this case, the FDA subcommittee reporting that an "adequate margin of safety exists for BPA at current levels of exposure from food contact uses" was chaired by Martin Philbert, acting director of the University of Michigan's Risk Science Center. The problem is, the Risk Science Center recently received a $5 million grant from Charles Gelman, founder of Gelman Instrument Company (now Pall Life Sciences) and firm believer that BPA is "risk free."

Gelman, whose company was once labeled the second worst polluter in Michigan by the state’s Department of Natural Resources, may not have bad intentions. And indeed, the Risk Science Center expects a permanent director to replace Philbert by the time Gelman's grant kicks in next year. But the Milwaukee Journal Sentinel reports that Gelman and Philbert "talk often," and the Washington Post reports that Philbert failed to put Gelman's donation on his financial disclosure form. It all adds up to a relationship that's too close for comfort. As the New York Times says, "Consumers need to know that any decision on BPA is completely unbiased – and that the FDA is, too."

Despite the dangers of a potential toxin being present in hundreds of thousands of containers (including countless baby bottles), the past few months have brought far worse consequences because of the corporatization of science. Three other recent examples of the manipulation of clinical studies by pharmaceutical companies have made press.

First, it came to light that a clinical trial for the former Merck blockbuster drug Vioxx had, in fact, been an elaborate marketing technique. The Annals of Internal Medicine called it "marketing in the guise of science." The practice, called a "seeding trial," had long been suspected but had not been proven until brought to light during Vioxx litigation. "The apparent purpose is to test a hypothesis," Annals wrote. "The true purpose is to get physicians in the habit of prescribing a new drug." Far from being just another type of trial, "seeding trials" constitute fraud on review boards, researchers, doctors and patients. The documents obtained in discovery show "that deception is the key to a successful seeding trial."

Second, it was revealed that Merck employees were writing papers on Vioxx and then recruiting physicians to take the credit (and lend credibility). The Journal of the American Medical Association concludes:

This case-study review of industry documents demonstrates that clinical trial manuscripts related to rofecoxib [Vioxx] were authored by sponsor employees but often attributed first authorship to academically affiliated investigators who did not always disclose industry financial support. Review manuscripts were often prepared by unacknowledged authors and subsequently attributed authorship to academically affiliated investigators who often did not disclose industry financial support.

The author of that report, Joseph Ross, told the New York Times, "it almost calls into question all legitimate research that’s been conducted by the pharmaceutical industry with the academic physician."

Finally, the New York Times reports that Pfizer "manipulated studies" on its epilepsy drug Neurontin.

Pfizer's tactics included delaying the publication of studies that had found no evidence the drug worked for some other disorders, "spinning" negative data to place it in a more positive light, and bundling negative findings with positive studies to neutralize the results, according to written reports by the experts, who analyzed the documents at the request of the plaintiffs’ lawyers.

The common thread connecting these cases is that the pharmaceutical companies' fraud was only revealed through litigation – which is one reason why Wyeth v. Levine (Tort Deform, New York Times) is such an important case. In 2000, Diana Levine was given Wyeth’s drug Phenergan to combat nausea associated with her painkillers. But the drug was administered incorrectly, caused gangrene, which cost the professional guitarist her right arm. Levine sued Wyeth because Phenergan's label did not mention that the method used to administer the drug would inevitably cause gangrene. Wyeth appealed to the Supreme Court, arguing that the FDA’s approval of Phenergan's label immunizes it from Levine's lawsuit.

If the Supreme Court sides with Wyeth, these lawsuits will be blocked – forever. Since the FDA approval is based, in large part, on the very sort of studies that have proven to be tainted, such a decision would pervert Big Pharma's incentives. If Big Pharma feeds the FDA misleading information, it would be rewarded both with approval of its drugs and immunity from accountability if those drugs injure consumers. Maybe that's why the New England Journal of Medicine filed an amicus brief urging the Supreme Court to reject Wyeth’s argument.

Voters Still in Line Behind Wall Street

2008-10-20T16:41:04-04:00

Back in early July, we sent a request with a few of our partners in reform to every candidate running for Congress this fall urging them to sign the Voters First Pledge, a simple statement of support for legislation for a new system of pubic funding for congressional campaigns. So far, nearly 220 candidates have made the pledge - but there are still many others who have yet to tell us where they stand.

So, we've sent yet another letter to candidates who haven't responded and have asked our members and activists to make sure the candidates in their districts know this is an issue they shouldn't ignore. It's frankly hard to understand why a candidate wouldn't want to commit to change business as usual in Washington today. The urgent need for reform is summed up neatly in the letter:

As the nation faces its worst financial crisis since the Great Depression, now is the time for bold reforms to both the financial and political systems. Wall Street and powerful financial interests should not be funding campaigns for Congress if we want a political system that truly works for the American people. Public confidence in Congress is at an all-time low, and voters assume that both incumbents and challengers are under the undue influence of special interests.

Seeking big donations does not end with the campaign season - from their first day in office members of Congress must continue to dial for dollars. The result? Policies that favor Wall Street and not Main Street. Public funding of campaigns would allow our elected officials to get off the fundraising treadmill and truly represent the interests of ordinary citizens.

As our letter points out, public financing of elections is an issue that resonates with voters:

• Seventy-four percent of voters surveyed in 2006 said they supported voluntary public funding of federal elections, with a mere 16 percent opposing it.

• The support was across party lines, with 80 percent of Democrats, 65 percent of Republicans, and 78 percent of independents – a remarkable degree of support across the spectrum.

• When presented with an unnamed candidate with no party identification, favorable ratings increased dramatically when voters were told the candidate pledged to support public funding of campaigns – and dropped dramatically when told the candidate refused to pledge support for public funding. This was tested against typical issue profiles for Republican and Democratic candidates, clearly demonstrating the power of this issue push voters towards or away from candidates, even when combined with other policy positions favored by those voters.

We're giving candidates until noon on this Wednesday, October 22 to sign the pledge. Then we're going to announce who's committed to real change in politics.

Curious if you're member of Congress has signed the pledge? You can find out here and then you can give them thanks or tell them it's time to put Voters First!

Obama's Other Shoe Drops

2008-10-20T11:42:03-04:00

There was much attention this weekend to the Obama campaign’s claim that it raised a whopping $150 million in September. This figure dwarfed the $84 million grant the campaign would have needed to live with for September and October if Obama had opted to participate in the public funding system, as McCain did.

But Obama evidently raised much more than even that. This weekend, Obama's joint-fundraising committee – which solicits money in Obama's name and funnels most of it to the Democratic Party – reported that it vacuumed up $69 million. The $69 million appears to be largely in addition to the campaign's purported $150 million bonanza, but we will not know for sure until the campaign issues its official September report, which is due tonight.

Contributors to Obama's joint committee are allowed to give up to $30,800, in contrast to the $2,300 maximum they can give to Obama's official campaign committee. More than 600 people wrote checks of at least $25,000 to the joint committee last month, the New York Times reports.

As we wrote on Thursday, Obama's rival for the presidency, John McCain, also has made significant use of these joint-committees, which are technically legal but make a mockery of the intent of campaign finance laws. McCain's joint committees reported last week that they raised $87 million between July and September, bringing their joint-fundraising total to $150 million.

The Other Bad News for Consumers: Forced Arbitration

2008-10-17T11:28:34-04:00

Due to the extensive coverage of the recent economic meltdown and the presidential race, it's been easy to miss some other news very relevant to consumers and corporate accountability. Over at Tortdeform, they have some excellent posts about issues covered by the New York Times.

First, Kia Franklin relayed the news that a recent Department of Health and Human Services study cited 94% of nursing homes for violations of federal health and safety laws. This underscores the need for legislation banning forced arbitration, which nursing homes use to immunize themselves from the accountability when they violate the law or hurt their residents through negligent treatment or abuse. (Follow up on the Times story from Tortdeform here. Read more about the nursing home arbitration bill here.)

Next, Justinian Lane recaps a study by two law professors about the reluctance of companies to use arbitration when dealing with one another. The professors cited in the story have been following this issue for some time now, and their results have consistently shown the hypocrisy of corporations that tout arbitration as a fair, efficient, less costly method of dispute resolution between companies and consumers, or employers and employees, but not between one another.

McCain's 'On-the-Side' Fundraising Rises to $150M

2008-10-16T15:11:57-04:00

During last night's debate, John McCain attacked Barack Obama for abandoning his pledge to accept public funding for the general election if his opponent did so. While we wish Obama had opted in to the public system, it's also worth noting that McCain left out a few inconvenient truths about his on-the-side fundraising.

When McCain accepted an $85 million public funding grant, he agreed to stop raising money except for modest amounts to pay for book-keeping. But McCain kept raising big money. The only difference was that he focused his effort entirely on raising checks for special "joint fundraising committees," which funnel most of the money they receive to the Republican Party. Lax campaign finance rules are allowing McCain to rake in contributions of up to $67,800 for these committees (slightly down from $70,100 while his official committee was still in business). That's nearly 30 times the maximum that Obama's campaign committee can receive.

Last night, about the same time McCain attacked Obama for his fundraising, 10 of the Arizona senator's joint committees reported that they have raised $87 million since the beginning of July, bringing their total to $150 million.

McCain's methods are technically legal, and indeed Obama has mimicked them by setting up a committee in his name to raise money for the Democratic Party. But aside from circumventing the public funding agreement, they defeat the overall campaign finance system's goal of prohibiting large contributions directly to politicians. The system permits larger contributions to party committees to facilitate party building. But by personally raising money for these committees so close to an election, McCain and Obama have erased the line separating party and candidate.

Victory for Consumers on Credit Cards -- Part 1

2008-09-23T16:38:22-04:00

Today, the United States House of Representatives passed H.R. 5244, the Credit Cardholders' Bill of Rights sponsored by Rep. Carolyn Maloney (D-N.Y.). Among other provisions, the bill:

requires advance notice of credit card account rate increases;
prohibits the practice of "double billing," addresses the problem of ever-changing payment dates;
restricts the use of over-the-limit transaction fees;
restricts "sub-prime" credit cards; and
prohibits companies from issuing cards to minors.

This is a great step forward for consumers. It has been more than twenty years since Congress passed the last major substantive credit card reform legislation. Public Citizen wholeheartedly supports the Credit Cardholders' Bill of Rights (read our letter of support here), and joined a coalition of other consumer, civil rights and union groups (read the coalition letter here) in support of the bill.

In an interesting look at how Washington works, there were actually two votes on the bill. The first was procedural -- a motion to send the bill back to the Financial Services Committee for further study. That motion was rejected by a 219-198 margin (roughly). When it came time to vote on the bill itself, however, the House approved it by an overwhelming 312-112 margin. This is more proof (if we needed any) that when people are watching, being anti-consumer is not a popular position in Washington.

We are encouraged by today's vote, but this bill will not become law until it has been approved by the Senate as well. The Senate should either move quickly to pass the bill as a stand-alone measure, or include the bill as part of its bailout package expected soon. There have been repeated cries for greater liquidity to keep our markets stable. What could be a better way for the government to provide liquidity than allowing Americans to keep the money that would otherwise be taken from them through unfair and deceptive credit card fees?

Congress should enact H.R. 5244, the Credit Cardholders' Bill of Rights, into law before it goes on recess at the end of next week.

A New Era for Consumer Product Safety

2008-09-19T17:50:10-04:00

It’s been a little over a month since the president signed the Consumer Product Safety Improvement Act of 2008, which reformed product safety law and bestowed more resources and responsibility upon the oversight federal agency, the Consumer Product Safety Commission. The CPSIA is a welcome improvement to product safety regulation, giving the CPSC the resources it needs to protect the public. As we’ve mentioned before, highlights of the bill are that it requires that children’s products be tested before they are sold and bans lead and toxic phthalates in toys; requires the CPSC to create a publicly accessible consumer complaint database; increases civil penalties that CPSC can assess against violators; and protects whistleblowers who report product safety defects. In short, this bill makes big, important changes in product safety law.

So what has the CPSC been up to since the bill’s passage? About two weeks ago, the agency held a public meeting to discuss its work in implementing the new law and built a web site devoted to CPSIA implementation. The web site contains summaries and interpretations of the new requirements, and a helpful timetable referred to as CPSC “Required Actions” under the Act, which lists its tasks (a majority of which is rulemaking) for the coming months and years. Conspicuously absent from its “Required Actions” list, however, is the consumer complaint database – a crucial part of this product safety overhaul.

Development of the database is something to watch. The agency was less than enthusiastic about the database when Congress was debating the CPSIA. Now the agency has less than six months to draft and submit its database plan to Congress. Curiously, the staff said little about the database at the public meeting, except noting that building it is contingent on receiving more resources from Congress. In testimony earlier this year, Nord said that the database would cost $20 million to set up and $2.5 to $3.5 million per year to maintain.

In addition to the database, the new law requires about 40 new rulemakings. The timelines are “very ambitious,” Nord said more than once to her audience of mostly industry lawyers. No doubt the CPSC has been handed a gargantuan task. But that is to be expected after so many years of mediocrity and neglect in the product safety arena. In less than six months, the agency will have acted on the phthalates ban, toy standards, the product database and the requirements for recall notices. By the time the one-year anniversary rolls around, it will have addressed the ban on lead in toys, tracking labels for children’s products (if the agency chooses to implement rules for this requirement), durable children’s products, cribs, infant/toddler products and the final regulation for civil penalties. After the last few years of unprecedented recalls and injuries suffered by American consumers, these costs and tight deadlines are little price to pay to put up the database and promulgate so many vital new rules.

Protecting the rights of government whistleblowers

2008-09-18T13:04:24-04:00

originally posted by Alyssa Wolice at CitizenVox

It’s no secret that the government officials you elect to serve the public’s best interests often abuse their power and cost you your hard-earned dollars. So, when the average government employee witnesses the acts of corruption that continue to plague our political system, shouldn’t they have the freedom to speak up and protect the public’s rights without facing the risk of retaliation?

Though strong bills were passed last year that would provide whistleblowers with greater protection of their rights to free speech, now is the time to demand that Congress finish the job by passing a final bill.

The truth is plain and simple. Millions of taxpayer dollars have been squandered. Documents regarding our own nation’s security have been falsified. Scientific research has often been altered, or worse yet, brought to a complete stand-still. Yet, the very same employees who can defend our rights by blowing the whistle on the government misconduct have less protection than corporate employees enjoy. As a result, too few employees are willing to take on the risks of speaking out against government wrongdoings.

Wouldn’t it be nice to ensure that these everyday eyewitnesses of government corruption can stand up for public rights without feeling intimidated or threatened?

You can help! Stand up for the everyday heroes who protect your rights by taking action now. So far, more than 200 public interest organizations have signed on to urge Congress to change the status quo - and now you can too. Sign the Citizens’ Whistleblower Petition today or read more about what the Make It SAFE Coalition is doing to protect those who help to overcome political corruption. There is no better time than now to make Congress aware of the grassroots support for honesty and accountability within our government.

Forced Arbitration Impedes Credit Card Reform Effort

2008-09-16T17:36:46-04:00

If you read the paper or the US PIRG blog this weekend, then you know about an editorial in Sunday's edition of the NY Times that appealed to Senators Obama, McCain and Biden to urge Senate and House leadership to support the Credit Cardholders’ Bill of Rights. We agree with the Times' assessment of the bill's importance:

Too many people are finding that even if they pay their bills regularly, their interest rates can still be jacked through the roof. The Credit Cardholders’ Bill of Rights would help rein in some of the worst abuses. It would stop creditors from applying interest rates retroactively to balances incurred under an old rate, or charging late fees for checks mailed days before the due date.

Doing away with the punitive practices that credit card and other consumer service industries use to penalize consumers and line their own pockets is a worthy goal, but enacting this legislation is not enough. Credit card reform will not be comprehensive until Congress has made sure that consumers are able to fight for their rights, and that the fight is a fair one.

Just as the Bill of Rights would not be complete without the Seventh Amendment right to a jury trial in civil cases, the Credit Cardholders' Bill of Rights will not be complete until consumers who have been wronged are able to bring their claims in an unbiased court of law. Congress can restore this right to consumers by banning the practice of pre-dispute binding mandatory arbitration (BMA), whereby a wide range of consumer service companies, including credit cards, impose a private, for-profit dispute resolution forum on their customers as a condition of service.

BMA helps corporations evade liability under consumer credit protection laws in two ways. First, many arbitration clauses contain class action bans, even though several states prohibit them. Since many credit card fees are small but widely imposed, companies have immunity for their unfair practices. Arbitrators are also free to ignore federal law because courts cannot overturn arbitrators' decisions, even when an arbitrator has misapplied the law or failed to apply the law altogether. Their decisions are virtually beyond review, allowing companies to stay above the law.

In another Times article on credit card regulation, our friend Ed Mierzwinski at PIRG emphasized that the credit card reform effort has, to this point, failed to address BMA:

None of the bills or proposals deals with the lenders’ mandatory binding arbitration clauses that became standard in the late 1990s. Those clauses made class-action lawsuits charging lender wrongdoing almost impossible to bring, said Mr. Mierzwinski.

Private enforcement is important because, as we have seen recently, the federal government cannot be everywhere at once. BMA has rendered the part of the Consumer Credit Protection Act providing for private cardholder enforcement of some of its provisions through civil law suits, including class actions, virtually useless.

How do we rectify this problem? The answer is simple:

Legislation called the Arbitration Fairness Act of 2007, written by Senator Russell D. Feingold, Democrat of Wisconsin, and Representative Hank Johnson Jr., Democrat of Georgia, ensures consumers the choice of jury trials.

Congress must fully address the problems facing average Americans by passing the Arbitration Fairness Act. Without it, credit card companies will be able to continue some of their most predatory practices without any fear of having to answer to their customers.

The new proposed credit card reforms are positive, and we support them. But consumers will not have complete protection from abusive business practices until Congress has prohibited BMA.

Consumers deserve the right to hold the companies that have injured them accountable.

Protect the Elderly from Forced Arbitration

2008-09-12T16:07:52-04:00

by David Arkush and Christine Hines

Yesterday the Senate Judiciary Committee followed its counterpart in the House and approved an important arbitration bill to protect residents in nursing homes and assisted living facilities, the Fairness in Nursing Home Arbitration Act, S. 2838. The legislation, which a House committee approved in July, will make it easier to hold these facilities accountable for negligent or reckless acts that harm their residents. It prevents nursing homes from forcing residents to agree to arbitration before a dispute arises, allowing residents to turn to the courts in the event their nursing homes cause them serious injuries or death. Without this protection, nursing homes can force residents to take disputes to private arbitrators chosen by the nursing home itself. Guess who wins cases there?

The Judiciary Committee approved the bill despite vigorous opposition from the U.S. Department of Justice and a coalition of business and nursing home industry organizations. The Justice Department embarrassed itself by making wacky and self-contradicting arguments in a letter to the Committee. It said Congress lacks authority to pass this bill, even though nursing home contracts are clearly within Congress's Commerce Clause power. It also urged Congress to leave the Federal Arbitration Act (FAA) in place - even though the FAA regulates the very nursing home contracts that Congress supposedly can't regulate. (We wrote a letter responding to DOJ; Paul Bland wrote a great post on the DOJ letter over at CL&P.)

The Committee also heard from a coalition of industry groups, which wrote a letter that misrepresented nearly everything it discussed: the identity and interests of the letter's signers, the facts about arbitration, the current law, and the effect of the Fairness in Nursing Home Arbitration Act. The group pretended to be interested in consumer protection, claimed that forcing consumers into arbitration preserves "consumer choice" and benefits consumers, claimed that nursing homes currently can't require arbitration as a condition of admission, and said the bill in Congress would virtually eliminate arbitration - when the bill actually would ensure that consumers can choose whether to go to arbitration voluntarily.

When someone needs to lie so much to make their case, you know they're on the wrong side of the issue. If this industry group told the truth, it would sound something like, "We're corporate lobbyists fighting for the right to neglect or abuse elderly nursing home residents with impunity. Our corporate clients want to make millions in profits without worrying about being held accountable if they hurt people." That message probably wouldn't win much support.

Fortunately, the Hill heard plenty from our broad, genuine coalition of consumer groups, which worked hard to educate congressional members on the bill's importance. More than 100 organizations from 30 states signed a letter supporting passage of the bill to protect the rights of nursing home residents and their families.

Now that the legislation is out of committee, it could go to the floor for a full vote in either house. This is the perfect time to call your members and urge them to turn this bill into law.

Obama’s Mistake on Public Financing (and how McCain is skirting the law, too)

2008-09-10T10:12:46-04:00

Originally by Andy Wilson at TexasVox.org

Today’s New York Times reported that life is not all peaches and cream for the Obama campaign after they opted out of the presidential public financing system. (See Article “Straining to Reach Goal, Obama Presses Donors“)

Pushing a fund-raiser later this month, a finance staff member sent a sharply worded note last week to Illinois members of its national finance committee, calling their recent efforts “extremely anemic.”

The signs of concern have become evident in recent weeks as early fund-raising totals have suggested that Mr. Obama’s decision to bypass public financing may not necessarily afford him the commanding financing advantage over Senator John McCain that many had originally predicted.

But the campaign is struggling to meet ambitious fund-raising goals it set for the campaign and the party. It collected in June and July far less from Senator Hillary Rodham Clinton’s donors than originally projected. Moreover, Mr. McCain, unlike Mr. Obama, will have the luxury of concentrating almost entirely on campaigning instead of raising money, as Mr. Obama must do.

It is not yet clear whether the Obama campaign will be able to ratchet up its fund-raising enough in the final two months of the campaign to make up the difference.

Public financing is a boon to any politician who accepts it, as it allows her or him to run free from the strings attached to big-dollar-donations and to focus the campaign’s time on where it should be spent: connecting with voters. This is why when I explained Public Financing to Congressman Nick Lampson, currently running in the most competitive House race in the country, he was exuberant to think of a time when he would no longer have to dial for dollars. Considering the other two competitive House races in Texas, in CD 7 and 10, think of the race it would be if the campaigns were on equal footing moneywise and ideas, not dollars, affected the outcome of the race.

And, if you don’t think that money doesn’t change policy, think again. Every issue, from the War in Iraq to Consumer Protection to Global Warming to Education has powerful monied interests who are willing to pour money into the debate to get what they want.

Meanwhile, back at the ranch, McCain, once a champion of campaign finance reform, is still soliciting donations to his campaign, even though he has already accepted public financing money. A loophole allows the campaign to get money for “compliance” issues, but really it’s a backdoor for the same kind of big money influence peddling we’ve seen so far, as recently as the last two weeks at the GOP and Dem Conventions.

Kate Kaye, the author of the blog who brought this to our attention, explained it best:

According to a disclaimer on the McCain campaign site, “Because the McCain-Palin Campaign is participating in the presidential public funding system, it may not receive contributions for the any candidate’s election. However, federal law allows the McCain-Palin Campaign’s Compliance Fund to defray legal and accounting compliance costs and preserve the Campaign’s public grant for media, mail, phones, and get-out-the-vote programs. Contributions to McCain-Palin Victory 2008 will go to the Compliance Fund, and to participating party committees for Victory 2008 programs.”

That Victory fund is operated by the compliance fund, the Republican National Committee, and the Michigan, Missouri, Ohio, and Pennsylvania GOPs.

Hmmm…I wonder what states are in the most contention this year….

The lesson is clear: we should support full, airtight public financing NOW and we should make our leaders accept it– a “Great divorce” of Money and Politics.

Obama originally opted out of public financing by citing that the presidential system was “broken” and that he had created a “parallel public financing system” via the netroots. This, along with McCain’s continued fund-raising, is an argument to shore up the presidential system, not scrap it.

We can pass full public financing laws. We can keep elections fair at the local, state, congressional, and federal level. Currently, the Fair Elections Now Act sits idle in Congress with some serious inertial problems. We should change that, and call our leaders and ask them to sign on to Fair Elections. We can make it a priority of the next Congress, insuring that future elections are clean and fair.

Lobbyists Trying to Hide in Plain Sight at the DNC

2008-08-28T11:12:52-04:00

by Eric Encarnacion

Over the last month, we've talked about the pervasive corporate presence at the national conventions and the ways that big-money special interests will try to influence politicians through their stomachs and their general taste for the good life. Now, with the Democratic National Convention in Denver this week, the evidence is in: Corporations and their lobbyists are throwing lavish parties for lawmakers. They're hard to miss, as the mainstream media has started covering them.

As ABC News has highlighted in its "Money Trail" segments, corporate lobbyists are sparing no expense in wining and dining our elected officials. Many are skirting new Congressional ethics rules with a wink and a nod. Top Denver chefs are preparing special dishes -- even inventing special spoons and flatware! -- so that dinners can qualify for a loophole in congressional ethics rules. Concerts and shows are being restructured on paper so that they're classified as "charity events" (complete with exclusive side entrances for elected officials!).

Two videos from ABC News provide a great overview. Featured in the clips are our friend Ellen Miller of the Sunlight Foundation and our very own ethics expert, Craig Holman.

So what can you do to help keep our leaders focused on voters rather than corporate special interests? Learn more and take action at SayNoToLobbyists.org.