Takeover, page 39
But Jim Turner, who worked for the division from 1965 to 1994 and was the top-ranked professional in the division for the last twenty-five years of his career, said that hiring people who are enthusiastic about civil rights to enforce civil rights laws is not the same thing as trying to achieve a political result through hiring particular people. Laws put on the books by Congress are supposed to be enforced whether the current occupant of the White House likes them or not, he said. “To say that the Civil Rights Division had a special penchant for hiring liberal lawyers is twisting things.”
In the spring of 2007, the newly Democratic-controlled Congress began boring in on alleged politicization in the Justice Department amid an investigation into the controversial firing and replacements of at least nine U.S. attorneys, an affair that this book will address in greater detail later. The investigation into the affair threatened to extend into the hiring changes in the Civil Rights Division, in part because the first replacement U.S. attorney, Bradley Schlozman, had previously spent three years as one of the political appointees most responsible for hiring decisions in the division, according to former career officials.24 Moreover, complaints about the personnel changes in the Civil Rights Division dovetailed with a report that another key figure in the U.S. attorney firings, the department’s White House liaison, Monica Goodling, was under internal investigation for allegedly taking partisan affiliation into account when hiring career assistant prosecutors, contrary to federal law.25 (After being granted immunity from prosecution in exchange for her testimony, Goodling later admitted to Congress that she had “crossed the line” and used a political litmus test in career hiring decisions. Schlozman, who also testified before Congress but without immunity, admitted under questioning that he may have boasted about hiring Republicans at the Justice Department. But he insisted that he never broke civil-service rules by asking about job applicants’ political views or partisan affiliation.)
Then, in what critics said was likely an attempt to head off a damaging new front in oversight, the Justice Department abruptly reversed course on its hiring policy. On April 26, 2007, the department distributed an internal memorandum reversing Ashcroft’s 2002 decision to give total control over career hiring to political appointees. The change meant that in the Civil Rights Division, control of screening applications, conducting interviews, and recommending hires was back in the hands of committees of career civil servants, as it had been for decades.26
But skeptics were pessimistic about whether the reversal meant that the Civil Rights Division was really freed from partisan control. After all, the career ranks were now very different than they had been back in 2002. Droves of longtime veteran civil rights lawyers had left. In their place were many members of the Federalist Society, the Republican National Lawyers Association, and other such organizations.
The Bush-Cheney administration’s effort to assert greater control over the Civil Rights Division was the latest chapter in a long-running power struggle between the agency and conservative presidents. Richard Nixon tried unsuccessfully to delay implementation of school desegregation plans that had been negotiated under Lyndon Johnson. Ronald Reagan reversed the division’s position on the tax-exempt status of racially discriminatory private schools and set a policy of opposing school busing and racial quotas. Still, neither Nixon nor Reagan changed the division’s procedures for hiring career staff, meaning that career attorneys who were dedicated to enforcing civil rights laws continued to fill the ranks.
William Yeomans, a twenty-four-year career veteran who also took the 2005 buyout, said he believed the current administration learned a lesson from Nixon’s and Reagan’s experiences: To make changes permanent, it is necessary to reshape the civil rights bureaucracy. “Reagan had tried to bring about big changes in civil rights enforcement and to pursue a much more conservative approach, but it didn’t stick,” Yeomans said. “That was the goal here—to leave behind a bureaucracy that approached civil rights the same way the political appointees did.”
8.
On May 6, 2004, the Food and Drug Administration announced that it had decided not to permit pharmacies to sell an emergency contraception pill, Plan B, without a prescription. The agency explained to the manufacturer of the “morning-after” drug, essentially a high-dose birth control pill that prevents fertilization and the implantation of an embryo, that the government was concerned about the possibility that teenage girls might not understand how to use it correctly without a doctor. This decision was a surprise. Five months earlier, a federal advisory panel of scientific experts had voted 23–4 to recommend approving the application to sell the drug over the counter, concluding that Plan B could be safely and correctly used by all women, including teenagers, without a doctor’s supervision. And the agency’s staff had recommended following the advisory panel’s view. Normally, agencies such as the FDA base their decisions on the information provided by their expert advisory panels—but, strangely, not this time.27
Several women’s groups accused the agency’s political appointees of overruling the experts in order to please social conservatives who believed that Plan B encouraged promiscuity and was a form of abortion. One group, the Center for Reproductive Health, filed a lawsuit seeking to have the FDA’s decision overturned. In depositions, two senior career scientists who worked on the application backed up the critics’ accusations. One scientist said she was told by the deputy FDA commissioner that the over-the-counter application for Plan B needed to be rejected “to appease the administration’s constituents,” and that it could later be quietly approved for adults only. Another scientist said he had learned in early 2004 that then–FDA commissioner Mark McClellan—the brother of then–White House spokesman Scott McClellan—had already decided against approval, even though the FDA staff had not completed their analysis of Plan B. (McClellan, who left the FDA shortly before the decision was announced, denied the accusation.)28
Government scientists and outside scientific experts who serve on advisory boards can pose a major obstacle to a president’s ability to carry out his political agenda. Where Congress has instructed an agency to make decisions on the basis of accurate and neutral information, the scientific bureaucracy can, simply by presenting its findings, sway the outcome of regulatory decisions in a direction sometimes opposed by the president and his political appointees.
To undermine this threat to its control, the Bush-Cheney administration systematically allowed their political agenda to trump advice from government scientists across a wide range of issues, including reproductive health, global warming, environmental pollution, the protection of endangered species, and stem cell research. According to the Union of Concerned Scientists, an advocacy group that documents political interference with scientists, Bush-Cheney appointees censored or suppressed scientific reports, limited media access to government scientists, and manipulated scientific advice by subjecting advisory panel nominees to political litmus tests, stacking the panels with industry representatives and religious activists with dubious credentials, and by simply ignoring or disbanding scientific advisory committees whose findings ran contrary to the White House’s political agenda.29
The administration’s well-documented record of manipulating scientific information for policy reasons is long enough to fill a book by itself, as demonstrated by Chris Mooney’s The Republican War on Science. But to give just a few examples:
In the summer of 2002, a federal advisory committee at the Centers for Disease Control and Prevention was preparing to vote on whether to lower the amount of lead exposure that would be considered poisonous to children. Since the level had last been set, in 1991, new research had shown that even smaller amounts of lead were harmful to children’s cognitive development than previously thought, and the panel was widely expected to recommend adjusting the level downward—a ruling that could cost paint and gasoline companies in possible lawsuits. Bush’s secretary of health and human services, Tommy Thompson, abruptly intervened to change the makeup of the panel, which had previously been appointed only by career staff. In unprecedented fashion, Thompson rejected five experts and replaced them with five others who critics said were likely to vote against tightening the regulation—including one who had testified in court on behalf of a paint company that he believed children could withstand lead exposure at levels many times higher than that of the consensus view of other scientists. It later emerged that several of the nominees had been handpicked by the lead industry, and at least two had financial ties to it. The regulations were not tightened.30
In January 2004, the Environmental Protection Agency published a proposed new rule on the release of mercury into the air by coal-fired power plants. Awareness had been growing that even small amounts of mercury exposure in the womb can cause children to experience learning deficits and developmental delays, and coal-fired plants were the largest man-made source of mercury pollution. But the new rule allowed the power industry to keep pumping many tons of mercury into the atmosphere for decades to come, endangering public health but saving the power and coal industries billions of dollars. Soon after the EPA rule came out, it emerged that political appointees had pasted language into the rule that had been written by industry lobbyists.31 Five career scientists at the EPA later told the Los Angeles Times that Bush’s political appointees at the EPA had bypassed professional staff and a scientific advisory panel in crafting the rule. The Bush-Cheney administration chose a process “that would support the conclusion they wanted to reach,” said John A. Paul, a Republican environmental regulator who cochaired the EPA’s advisory panel.32
The mercury controversy was just one of many at the Environmental Protection Agency. Russell Train, who was the top administrator at the EPA under both Presidents Nixon and Ford, said that the level of political interference at the agency under the Bush-Cheney administration represented a stark break from the way things had been under earlier Republican presidents. “In all my time at the EPA, I don’t recall any regulatory decision that was driven by political considerations,” Train wrote. “More to the present point, never once, to my best recollection, did either the Nixon or Ford White House ever try to tell me how to make a decision.”33
And in February 2004, the administration dismissed a scientist from the President’s Council on Bioethics. The scientist, Dr. Elizabeth Blackburn, was one of the most prominent cancer researchers in the world, but she had been critical of the administration’s position restricting the use of federal funds for stem cell research. The White House denied any political reason for axing Blackburn.34
The Bush-Cheney administration’s record on manipulating science prompted an outpouring of protest by previously apolitical scientists. On February 18, 2004, more than sixty leading scientists, including Nobel laureates, university chairs and presidents, and former federal agency directors, signed a joint statement protesting the Bush-Cheney administration’s politicization of science as unprecedented. In the years that followed, more than eleven thousand other scientists added their names to the statement.
“When scientific knowledge has been found to be in conflict with policy goals, the administration has often manipulated the process through which science enters into its decisions,” they wrote. “Other administrations have, on occasion, engaged in such practices, but not so systematically nor on so wide a front.”35
9.
Bush would also go further than any president in history to impose White House control on the executive agencies that create government health and safety regulations for businesses.
Throughout the twentieth century, Congress created a series of specialized agencies and outsourced to them lawmaking power over extremely technical subjects. These regulation-writing agencies exist within the executive branch and are supervised by political appointees, but they also serve as an extension of Congress and so are watched very closely by congressional oversight committees. Advocates of strong presidential power have long chafed at the White House’s lack of total control over such agencies, believing that their close relationship with congressional oversight committees means that they are answering to the wrong master. And beginning with President Nixon, White Houses controlled by both parties have increasingly taken steps designed to bring such agencies under tighter presidential control.
During Nixon’s first term, he created an Office of Management and Budget in the White House. This office was a brain trust of political loyalists who helped the president to manage the sprawling federal bureaucracy so that he could bend its work to his agenda. By the end of Nixon’s first term, however, his top advisers were dissatisfied with the results and decided to take much more aggressive steps. Their strategy, Nixon administration memos show, was to politicize the bureaucracy by purging it and then restocking it with “Nixon loyalists” who would “retake the departments.” Agency heads were to send regular reports to Nixon’s chief of staff, H. R. Haldeman, about their progress in “gaining control of the bureaucracy.”36 But the effort was derailed by Watergate.37
Ronald Reagan, who ran against big government, revived Nixon’s effort. In February 1981, shortly after Reagan took office, he issued an executive order requiring all agencies to submit proposed new policies to the White House’s Office of Management and Budget for review before they could be published in the Federal Register. In January 1985 Reagan went further, issuing a second executive order, requiring agencies to annually submit to the White House a cost-benefit analysis of their proposed new rules, allowing the White House to make objections and to delay and quash regulations it opposed for ideological reasons. This tactic, wrote former Reagan administration attorney Douglas Kmiec in his memoir, was a major component of the White House’s push to implement the Unitary Executive Theory by making the executive agencies respond to the president instead of to congressional oversight committees. Technically, Kmiec wrote, White House objections to proposed regulations had no legal weight because Congress had given the agencies the power to make rules by law—yet such objections by the president often carried the day, anyway.38
The Bush-Quayle administration kept Reagan’s 1985 system in place while escalating its impact. President George H. W. Bush put Vice President Quayle in charge of a new “Council on Competitiveness” to review proposed regulations when they arrived at the White House. Quayle’s council bottled up rules that industry opposed and occasionally moved to block them with a vague pronouncement that they were excessively burdensome to business.39
When Bill Clinton became president, he took the regulation controls that he inherited from the Reagan-Bush years and, on paper at least, intensified them. In a 1993 executive order, Clinton required agencies to make additional justifications for their proposed new regulations, such as identifying in detail the problem the proposed new rule was intended to fix. But the potential impact of Clinton’s move was not immediately apparent because he was not ideologically opposed to government regulation of businesses, unlike his predecessors. As Yale Law School’s Jack Balkin noted, Clinton’s goal was to try to take political credit for new rules that would improve protections for the environment and consumers. He wanted to know what the career bureaucracy was doing ahead of time so he could announce the positive news himself—especially after Republicans retook Congress in 1994 and he was less able to achieve his agenda through legislation.40
But the system set up by Clinton’s order could be put to more intrusive use by a White House that was politically opposed to government regulations. When the Bush-Cheney administration took office in 2001, its political appointees at the Office of Management and Budget began using Clinton’s system to reject rules proposed by the agencies because they were allegedly too costly for the benefits they would generate, or because they were otherwise inconsistent with the administration’s policy. For the first six years of the administration, the Bush-Cheney White House thus used Clinton’s system to kill or water down scores of new health, safety, and environmental protection rules proposed by agency professionals.41 Then, after losing control of Congress, the White House in January 2007 moved to take its influence over the regulatory agencies to an unprecedented level.
On January 18, 2007, two weeks after a newly Democratic-controlled Congress was sworn in, President Bush signed an executive order directing every agency head to “designate one of the agency’s presidential appointees to be its Regulatory Policy Officer.”42 The order made clear that the new officials were to be the president’s political enforcers, apparatchiks embedded inside each bureaucracy and empowered “to ensure the agency’s compliance” with his mandates as the professionals went about making decisions on new regulations. Bush’s order insisted that “no rule-making shall commence nor be included” in each agency’s plans without the approval of the new Regulatory Policy Officer—thereby allowing the political appointees to nip new regulations in the bud, before outsiders could learn that agency professionals had identified a health, safety, or environmental problem they thought was worth fixing.
Bush’s new executive order also imposed steeper requirements on agencies as they developed regulations: No new rules would be allowed unless the agency was able to identify a specific “market failure” that justified government intervention instead of letting businesses decide for themselves how to handle the problem. As Georgetown’s Lisa Heinzerling noted, the new “market failure” requirement opened another front in the White House’s attack on the power of Congress to decide what the permanent government should be doing. By setting up each regulatory agency in statute, Congress had essentially already decided that certain kinds of problems—such as the health and safety of the workplace and consumer goods—are worth addressing through regulation, even when the market could theoretically handle those problems on its own. Now under Bush’s executive order, White House political appointees got to second-guess the decision by Congress to have relatively permissive standards for when a regulation is justified.43
