The Waxman Report

by Henry Waxman; Joshua Green

  Bliley instantly recognized the attraction of this unusual approach. Secrecy afforded us the cover to move away from long-held positions that would have generated an outcry from interest groups on both sides were it conducted in public—one of the great recurrent problems of trying to hash out a bipartisan bill. We agreed that our staffs would sit down for three days to work out a comprehensive deal, both of us vowing to honor the terms if they emerged successful. If they failed, no one else would know that Henry Waxman had been willing to preempt the Delaney Clause or that Tom Bliley had entertained the notion of tougher safety standards on raw foods. No one wants to be caught making major concessions until they’re certain a deal can be struck. Here, the ground rules assured we wouldn’t have to.

  There remained an element of risk to both sides. In any such negotiation, political considerations bump up against policy goals. My agreeing to a deal would hand Republicans an accomplishment they could cite while campaigning against Democrats in the upcoming election. But it would also strengthen a law that we had been fighting to improve for nearly two decades, and the effect would be to protect children and adults from dangerous pesticides, which would ultimately save lives. A perennial dilemma for any congressman is whether to trade bad politics for good policy. Doing so on pesticides struck me as well worthwhile.

  We began one Wednesday morning in July. Assembled along with my chief of staff, and Bliley’s, were representatives of the committee’s ranking member, John Dingell, the FDA, and EPA, as well as the food industry and environmental organizations. One group absent from the proceedings was lobbyists. A common misconception about Washington is that lobbyists pull the strings. But most of them are former committee staffers whose job is merely to monitor developments and report back to the industry officials who employ them. Negotiating with lobbyists is a tedious and time-consuming affair because they are not usually empowered to make decisions and first must check with their clients, who in turn must check with their lawyers before a decision can be made. Lawyers are the only ones on the industry side steeped in the gritty details. Phil Schiliro, my chief of staff, wisely insisted that everyone involved here be given the power to make decisions.

  Once underway, talks proceeded quickly. Our side wanted stronger standards for raw foods, and was willing to give a little on processed foods in order to get them; the food industry wanted to get out from under the Delaney Clause, badly enough that it was willing to yield on raw foods. While the liberal public interest groups were adamant about upholding Delaney, I was prepared to consider a law that stopped short of an outright ban on carcinogens. While I was perfectly content to live with the Delaney Clause, the truth is that so strict a standard was actually tougher than it needed to be, since trace amounts of many harmful substances are often benign. By Friday night, we had settled on the broad but rigorous standard that any pesticides used on foods must carry a “reasonable certainty of no harm” and take special account of vulnerable populations like infants and children. “Reasonable certainty” was defined as a one-in-a-million chance of causing cancer. The food industry was liberated from Delaney and avoided having to take a number of pesticides off the market.

  On Saturday, the House Legislative Counsel drafted the agreement. The following week, it sailed through subcommittee and committee, and then won the unanimous approval of the House. A week later, the Senate passed the bill verbatim, and it was off to the president’s desk. It was not a tough sell. When Phil called to inform Clinton’s chief of staff, Leon Panetta, that we had reached a compromise on pesticides and started explaining the particulars, Panetta stopped him. “If Waxman and Bliley are together on this,” he said, “I don’t need to know anymore. We’re for it.”

  THE RESOLUTION OF THE PESTICIDE ISSUE AFTER ALMOST TWO DEcades of frustrated stalemate happened so suddenly, and so quietly, that the scope of the achievement almost didn’t register. The news media are conditioned to assume that the most important political issues are the ones that create the greatest amount of public drama and culminate in gavel-pounding showdowns on the House floor. They didn’t quite know how to treat the announcement of our deal, so the response was muted. Even some sophisticated participants didn’t fully grasp what to make of it. When I called Nancy Chuda with word that we had accomplished our goal, the news was so unexpected that at first it seemed not to register. This set me to pondering the old line about a tree falling in the forest: When a law of real weight is enacted without anyone noticing, does it still count as an accomplishment?

  But, of course, the important thing was not public fanfare but the quality of the new law. We had managed to pass a uniform national pesticide standard that would protect the health and safety of all Americans—and we had done so from a position of considerable weakness. Three things made this possible. The first was my relationship with Tom Bliley. Despite party differences, we implicitly trusted one another not to go public, had things not worked out, with the details of what the other had been willing to concede. Second was the fact that all those at the table were empowered to make decisions. And third, they were fully prepared to see them through. The only way this type of negotiation can succeed is to tackle the whole problem in one fell swoop, so that news of the deal arrives concurrently with the endorsements of all the major interests. Aside from a handful of staunch advocates of the Delaney Clause who criticized me, the new law—formally the Food Quality Protection Act of 1996—came off without a hitch.

  ONE OF THE LAW’S CRITICAL ACHIEVEMENTS WAS THAT IT ESTABlished an underlying principle for how pesticides would be regulated that favored public health over industry interests. Since the 1950s, food manufacturers had argued that laws regulating pesticide use should be driven by the cost of compliance—it was, that is to say, desirable to protect the public health only insofar as the cost of doing so did not weigh too heavily on farmers and food processors. The public interest community countered this notion with the assertion that the goal of any pesticide law should, first and foremost, be to protect the public health. The Food Quality Protection Act was a triumph in part because the requirement that any pesticide used must carry a “reasonable certainty of no harm” was a “health-based,” rather than a “cost-based,” standard: No matter what it cost industry, pesticides that exacted a serious effect on health were blocked from human consumption.

  This is exactly how the law operated—and what happened next should serve as a reminder that even the best-written laws have unintended consequences, and as such must constantly be updated and strengthened to ensure that they are performing the function Congress intended.

  Under the new law, the EPA took responsibility for regulating pesticides according to the health-based standard, the hope being that this would diminish health risks and encourage farmers to use safer pesticides. But as this began happening, the manufacturers of the more dangerous chemical pesticides realized that they would have to stop making them unless they could somehow find a way to meet the new safety standard.

  Measuring the health effects of pesticides necessarily entails a measure of informed guesswork. At the time of the Food Quality Protection Act, the process involved giving animals strong doses over a short period of time, seeing what happened to them, and extrapolating the likely effects on human beings. If a large dose of something appears to be safe in animals—if it didn’t correlate with cancers or reproductive or developmental problems—chances are that a much smaller dose is not likely to harm humans. Scientists use this information to develop risk models for the effects of individual pesticides, and can pluck food right off supermarket shelves and test it to see if it complies. They have even developed a rule of thumb for what constitutes a safe level for human ingestion, which they call the Two Tenfold Safety Factor. Once a safe threshold among animals has been determined, they will reduce that amount tenfold (an appropriate level of caution for human exposure) and then do so once more (since some people are going to be more sensitive than others). Hence, the Two Tenfold Safety Factor. Because the new la
w required stricter standards for infants and children, yet a third tenfold safety factor was included to make the standard even stronger. The increase from two to three tenfolds was enough to render some pesticides unusable on foods. So the chemical industry, seeing that mathematics lay at the heart of their problem, realized that it could challenge the formula—and remove one tenfold safety factor—if, instead of testing pesticides on animals, it was allowed to test them directly on human beings.

  The Clinton administration refused to permit this and imposed a moratorium on human testing. But when George W. Bush became president, he ushered in an era of unfettered deregulation that rivaled even the Reagan era. Sensing correctly that the tide had changed, the chemical industry set out once more to persuade regulators to accept human testing. In October 2001, the EPA’s assistant administrator, Stephen L. Johnson, announced at a meeting of the American Crop Protection Association, the pesticide industry trade group, that the Bush administration would indeed give human testing the green light. To her credit, Christie Todd Whitman, Bush’s first EPA administrator, refused to go along with this. But Whitman soon found herself unwelcome in the administration, and left in 2003. By the time Johnson took over the EPA in 2005, he had already put his own views on human testing into practice.

  One of the most appalling programs that Johnson initiated was the Children’s Environmental Exposure Research Study (known by the bizarre acronym CHEERS). The study, which was partially financed by the chemical industry, sought to examine the effects of pesticides on low-income children, whose families—furnished with $970, a video camera, and CHEERS T-shirts and baby bibs—were asked to record the chemical exposure for two years, during which EPA scientists would periodically collect urine samples.

  The CHEERS program was halted only after coming to light during Johnson’s confirmation hearings, and even then only grudgingly. But the Bush EPA continued to allow the human testing of pesticides. Alarmed by this trend, I joined with Senator Barbara Boxer of California to commission a report establishing just what tests were being undertaken, whom they were being undertaken on, and whether they had any scientific merit.

  The report uncovered “significant and widespread deficiencies” in the two dozen human pesticide experiments that had been considered, or were in the process of being considered, by the EPA, some of them decades old and many of them conducted overseas (oddly enough, Scotland seems to be a haven for human testing). “In violation of ethical standards,” the report stated, “the experiments appear to have inflicted harm on human subjects, dismissed adverse outcomes, and lacked scientific validity.” Among the tests were cases where subjects had been dosed with organophosphates (used as nerve agents by the German army) and methyl isocyanate (the Bhopal gas); others had been placed in a gas chamber with chloropicrin (the active ingredient in tear gas)—and in doses well beyond federal exposure limits; in several experiments, the subjects were instructed to take pills of insecticide with their breakfast orange juice.

  The adverse effects that these tests documented were routinely dismissed. A twenty-eight-day test of azinphos-methyl, a pesticide produced by the Bayer Corporation, on eight subjects produced headaches, abdominal pain, nausea, coughing, and rashes. The researchers concluded that every adverse reaction was unrelated to the chemical being tested, instead attributing most of them to “viral illness.” A six-month study of dichlorvos, a pesticide manufactured by American Vanguard, included youngsters from two to nineteen, whose homes were outfitted with resin strips containing dichlorvos. When a teenage girl complained of headaches, the researchers removed the resin strip from her bedroom and the headaches stopped. Yet they still concluded that this, too, was not caused by the pesticide: “Questioning of the parent revealed the likelihood that the headaches were produced by other pressures.”

  Scientifically valid drug tests ordinarily require thousands of human clinical trials to determine safety and efficacy, and even then often miss particular effects. Many of the human pesticide experiments involved no more than a handful of subjects. One study had but a single subject: The researcher dosed himself. Yet the Bush administration justified this combination of the dangerous with the arbitrary by arguing that such studies were “available, relevant, and appropriate.”

  Congress responded to the news that human beings—including children—were being used as lab rats by attaching a rider to an appropriations bill that prohibited the EPA from “accepting, considering, or relying upon” these types of studies until strict procedural standards had been established. While the amendment did garner the support of many religious conservatives who were troubled by the moral and ethical implications of intentionally dosing people with toxic chemicals, many Republicans still lined up behind the pesticide industry. But rather than engage in a public fight on an issue where the politics so clearly did not favor them, they let the bill pass, and President Bush eventually signed it into law.

  In February 2006, the EPA issued a new rule on human testing that imposed some restrictions but stopped short of banning it outright. (Johnson still wanted to keep the door open.) These new regulations established a Human Subjects Review Board within EPA and forbade the agency to consider experiments on humans “intended for submission to EPA’s pesticide program.” Here is yet another example of how a single word can determine a law’s effectiveness: When only those experiments “intended” for submission to the EPA are forbidden, a loophole opens for any other kind of human testing. So an industry group intent on getting around one tenfold safety factor could simply sponsor a test for “research” rather than regulatory purposes, and rest confident that the EPA would likely accept the study.

  And this, of course, is exactly what happened. Though the Human Subjects Review Board has disallowed some human studies, it has let others be considered, thus weakening our protection against pesticides. The Natural Resources Defense Council has sued in federal court to overturn the EPA rule. Regardless of the outcome, this is an area that continues to demand vigorous congressional oversight.

  But despite these ongoing skirmishes, the Food Quality Protection Act of 1996 has enjoyed a high degree of real success, with the public being exposed to fewer dangerous chemicals. It serves as a clear example of how Congress works to protect people even when the news media aren’t paying careful attention. I can’t help but find it somewhat ironic that since the 1990s, when we passed the Safe Drinking Water Act and the Food Quality Protection Act, there has been a huge shift in consumer behavior toward buying bottled spring water and organic foods. People obviously care a great deal about what sorts of chemicals they and their families consume, and they don’t trust food makers to do a good enough job of regulating safety. The good news is that they no longer have to. Thanks to Congress, the worst pesticides are no longer used on foods.

  The Art of Oversight

  CHAPTER 8

  Fraud, Waste, and Abuse

  WHEN CIVICS TEXTBOOKS DESCRIBE CONGRESS, THEY tend to focus on the legislative process. But the congressional power of oversight is an equally important part of effective government. The Constitution invests Congress with the responsibility of overseeing the executive branch, a critical part of our nation’s system of checks and balances. Proper oversight complements and strengthens the legislative process by identifying problems that may require new laws and by ensuring that existing laws are being executed as Congress meant them to be.

  But the most basic oversight may also be the most important: simply ensuring that taxpayer money isn’t squandered. Nothing inhibits effective government quite like fraud, waste, and abuse; and nothing breeds cynicism faster. One major reason public confidence in government has ebbed so dramatically since I arrived in Washington in 1975 is that we are too often confronted by abuses of the public trust: the $600 Pentagon toilet seat, for instance, or Alaska’s “Bridge to Nowhere.” Effective oversight identifies such outrageous examples of government waste and holds those responsible to account.

  Government has the capacity to be
a unique and extraordinary force for good. But regardless of ideology or partisan proclivity, every American should support the pursuit of fraud, waste, and abuse since a well-functioning Washington benefits everyone—and besides, our tax dollars are paying for it. Congress has a crucial responsibility to make government as effective and efficient as possible and to make sure that the people’s money isn’t wasted, whether through incompetence or deceit. To this end, it’s vitally important that every facet of government be subjected to potential scrutiny.

  The hub of this scrutiny in the House of Representatives is the Committee on Oversight and Government Reform, which is responsible for ensuring that federal laws and programs are being carried out as Congress intended. Its members help determine whether government programs should be continued, curtailed, or eliminated. Congress assigns each committee oversight jurisdiction over its particular area of competence—the Financial Services Committee covers banking, the Veterans’ Affairs Committee covers health care and benefits for military veterans, and so on. But Oversight is unique in that House rules give it nearly unlimited power to investigate any matter, regardless of whether another committee has concurrent jurisdiction. Its chairman is therefore entrusted with enormous power and latitude—and an accompanying obligation to use it responsibly.

  I sat on the Oversight Committee for more than thirty years, as chairman from 2007 to 2008. Though oversight doesn’t get nearly the popular attention of major acts of legislation, I consider many of my accomplishments in this area to be every bit as significant as the laws I’ve worked on. Though legislation and oversight are often thought of as distinct processes, they are in fact very much conjoined. For example, absent the years of oversight hearings on pollution, Bhopal, and acid rain, the Clean Air Act might never have come into being. Effective oversight can also negate the need for legislation: Simply bringing cases of fraud, waste, and abuse to light can quickly bring them to an end.