Commerce committee stops Gall confirmation--Brown announces November resignation.

The Senate Commerce Committee, by a strict party line vote of 12-11 on Aug. 2, rejected President Bush's nomination of Commissioner Mary Gall to be chairman of the Consumer Product Safety Commission (CPSC).

Gall was the first of Bush's nominees to be rejected outright by the Senate. An attempt by Republicans to get the committee to send the nomination to the Senate floor for a vote also failed by the same margin.

Sen. John McCain, ranking minority member of the Committee and a Gall supporter, called the committee Democrats "... a group of Senators with rope in their hands. For partisan reasons, Ms. Gall was going to hanged regardless of what she said."

About two weeks later, amid media reports that she had been a major player in the effort to defeat Gall, current CPSC chairman Ann Brown announced that she would resign effective Nov. 1 or sooner if the President submitted another nominee who would be confirmed before then--an unlikely scenario.(1)

Sen. Trent Lott (R.-Miss.) told the media that he had urged the White House to remove Ann Brown as chairman. "It is clear that we need a new chairman of the Consumer Product Safety Commission immediately," said a Lott spokesman.(2)

With her announcement, Brown ended speculation that she might remain in the role of Commissioner. In her resignation statement Brown said she would seek to establish a new product safety nonprofit foundation called a "Safer America for Everyone (SAFE)."

Brown also predicted that there would soon be another major CPSC lawsuit or recall involving a product that caused injuries to children. At press time, such a legal action has not emerged.

Commissioner Gall, who has served on the Commission since 1991, and whose last confirmation to her second term in 1999 was unanimous, has said she will stay on at the Commission.

In the Senate, the surprise rejection of Gall by members of the Commerce Committee was considered a deliberate slap at President Bush, and seen as a "muscle-flexing" demonstration by Hill Democrats that they can and will torpedo Bush nominees on ideological grounds.

Just before the August recess, Senate Democratic Whip Harry Reid (D-Nev.) let it be known that his party wanted to return to the White House the nominations of Gall and Otto Reich, a Bush nominee for the State Department's office of Western Hemisphere Affairs.

But Senate GOP leader Trent Lott said no--that instead the Democrats would have to return all 164 unconfirmed nominees. This was seen as a strictly procedural move, and Bush is expected to send all the nominations back to the Senate when that body reconvenes in September.

Some Gall supporters had hoped that Bush would give Gall a recess appointment to the CPSC Chairman's job--an option the White House has available but is reluctant to use. At this time it is not known what plans the White House has either for re-nominating Gall or for naming another candidate for chairman.

The firestorm of media coverage sparked by the committee's action on Gall focused mainly on the impact of New York Democrat freshman Senator Hillary Rodham Clinton, who had engaged Gall in battle months prior to the actual hearing date.(3) Indeed, Clinton did play a major role and it was her staff who arranged the press conference for Gall opponents on the same day the Senate held its hearing on the Gall confirmation. Clinton herself attended the press conference, accompanied by Sen. Barbara Boxer (D.-Calif.), Sen. Richard Durbin (D.-Ill.), and Ron Wyden (D.Ore.)(4) Another press conference featured Rep. Rosa DeLauro (D-Conn.) and spokesmen for Consumers' Union and the U.S. Public Interest Research Group (PIRG), groups that fought the Gall confirmation. Sen. Clinton's staff arranged for that event to be held in the Senate Small Business Committee hearing room.(5)

But others have singled out the backroom efforts of current CPSC chairman Ann Brown and others close to Brown as the real culprits.

Chairman Ann Brown and her husband Donald, wealthy socialites with expensive homes in Washington DC; Little Washington, Virginia; Martha's Vineyard, Massachusetts; and Palm Beach, Florida, have been heavy contributors to the Democratic Party over the years. She has also contributed to the campaign funds of three Senate Commerce Committee members: Chairman Ernest "Fritz" Hollings (D-S.C.), and Senators John Breaux (D-La.) and Byron Dorgan (D. -N.D.)(6) Federal Election Commission records also show that Brown contributed generously to the 2000 Senate campaign of Sen. Hillary Rodham Clinton.

Recently, in a move that puzzled agency observers, Brown named a new executive director to replace Pam Gilbert, who resigned in early July. Brown made the appointment even though Gall's confirmation hearing had been scheduled for July 25.

The novice executive director is Democratic Party loyalist Caroline Croft, whose claim to fame is that she is Sen. John Breaux's tennis partner. It now appears that this elitist tennis player will have only a brief tenure at CPSC prior to Brown's departure.

Former executive director Gilbert apparently had time on her hands, because she was observed counseling members of the Senate Commerce Committee--on the dais where Senate staffers sit--during Gall's hearing. Gilbert later responded to critics that the committee's vote was not just a partisan one.

She wrote in a letter to the Washington Post on Aug. 13 that "[D]uring her two terms as a commissioner, Ms. Gall has voted against initiating regulatory proceedings against companies consistently saying that negligent behavior caused the injury or death." Gilbert said she sided with Gall's critics in noting she has a "seriously flawed record."(7)

Brown's impact extends to the media as well. One of her staff members, Barbara Rosenfeld, is the wife of a long time Washington Post executive, Stephen Rosenfeld (now retired). On the eve of the Gall confirmation hearing, the Post printed in a prominent location on its op-ed page a vicious attack on the Gall record by Consumers Union president James W. Guest.(8)

Should the White House choose to demote Brown before her designated Nov. 1 resignation date, Commissioner Thomas Moore, current Vice Chairman, would become acting chairman.

Under the statute governing CPSC, the Commission can operate with only two members for as long as six months. That gives the White House plenty of time to either re-nominate Mary Gall and push harder for her confirmation this time, or find another candidate. In either case, the White House will have to focus on a third commissioner for CPSC.

The forces that combined to defeat Commissioner Gall's confirmation in committee are not going to go away. But consumers should be aware that they might be pawns in a tremendous consumer "protection'" con game whose players advocate more regulation, less consumer choice, and, in general, higher prices for consumers in the name of safety. Since consumers can only lose at this game, the winners are the so-called "safety advocates" who get more free publicity, raise more money for their organizations, and stay in control of the safety game in Washington.

More Bikers Getting Head Injuries--But Helmet Use Is Up

Given the statistics compiled by the CPSC on an increase in head injuries for bike riders, might the agency consider banning bike helmets? Sounds ridiculous, but that is the argument once used by advocates of banning baby bath seats. Using the devices while bathing infants lulled parents into a "false sense of security" and led to increased risk taking, we were told.

While bath seats have not been banned, there is a pending regulatory proceeding at CPSC dealing with the issue of bath seat safety.

Some years ago, the same consumer advocates pressed the Congress to require CPSC to develop a federal standard covering bike helmets.(9) (See CPSC Monitor, Vol 4, Issue 7, July 1999.) They pointed to statistics showing that using bike helmets helped prevent serious head injuries during a bicycling accident. Others argued that the problem was not with the helmets but with the fact that not enough bike riders actually used helmets. To get more people to use helmets, this argument went, we must have a federal rule.

Today there is a national safety standard for bike helmets,(10) due to the efforts of pro-regulation consumer groups, even though bike helmet safety was previously governed by several well-known non-government voluntary standards, including ANSI, ASTM and Snell. Those standards were considered to provide the needed protection for cyclists. In fact, several of the federal safety agencies, including CPSC, issued brochures noting that helmets meeting the voluntary ANSI, ASTM, or Snell standards were fine to continue to use once the federal standard came into effect.(11)

Now, the data on bicycle head injuries are even more puzzling. According to CPSC statistics, there has been a 51 percent increase in head injuries per active bicyclist since 1991, while the use of bike helmets has become more widespread.(12)

Since the prediction of fewer injuries has not materialized, some are suggesting that the cause could be that same over-confidence that allegedly tempted some parents to leave their babies unattended in bath seats.

An article by Julian Barnes in the New York Times July 29 suggests this may be a phenomenon termed a "moral hazard." The term is one coined by the insurance industry to describe the natural tendency of those covered by insurance policies to take more risks.

The Barnes piece gave an example of one bike rider who took risks in riding off-road while wearing a helmet--with disastrous results. His injury was due to a broken neck, resulting in paralysis from the neck down.

Just as there is more to baby safety than using good bath seats, there is more to bicycle safety than wearing a helmet.

"We have moved the conversation from bicycle helmet use to bicycle safety," said Dr. Richard A. Schieber, a childhood injury prevention specialist at the Centers for Disease Control and Prevention.

"Thank God that the public health world is understanding there is more to bicycle safety than helmets." Scheiber said.(14)

Ron Medford, assistant executive director of CPSC's hazard identification office, told Barnes, "It's puzzling to me we can't find the benefit of bike helmets here."(15)

It is clear that using helmets can reduce the severity of head injuries--perhaps as much as 88 percent. Then why are more bike riders getting head injuries, even though more are wearing the helmets?

Stay tuned. CPSC will be examining the question in depth by studying emergency room reports and talking to victims.

Footnotes:

(1) "CPSC Chairman Ann Brown Announces Resignation," News Release from the U.S. Consumer Product Safety Commission, Aug. 8 2001.

(2) Boyer, Dave, "Chairman of CPSC to Step Down Nov. 1," The Washington Times, Aug. 9, 2001.

(3) See CPSC Monitor, "Bush to Nominate Mary Gall as CPSC Chair; Hillary Clinton Attacks Gall's Record," CPSC Monitor, Vol. 6, No. 4, April 2001.

(4) Bolton, Alexander, "Hillary Played Key Backstage Role vs. Bush Nominee Mary Gall," The Hill newspaper, Aug. 8, 2001.

(5) Ibid.

(6) Ibid.

(7) Gilbert, Pamela, "Commissioner Gall's Flawed Record," The Washington Post, Aug. 13, 2001.

(8) Guest, James W., "Keeping Things Safe," The Washington Post, July 24, 2001

(9) HR 965, the Child Safety Protection Act of 1994, required CPSC to develop mandatory bicycle helmet standards.

(10) The CPSC final rule setting the standard became effective March 10, 1999.

(11) See, for example, the web site of the National Highway Traffic Safety Administration, which stated in a pamphlet about bicycle helmets: "If you have a bicycle helmet that meets one or more of the voluntary bicycle helmet standards like ASTM, Snell, or ANSI, you do not need to buy a new helmet. These bicycle helmets provide sufficient protection for the head." http://www.nhtsa.dot.gov/people/injury/pedbimot/useyourhead/page2.html.

(12) Barnes, Julian E., "Bicycling Mystery: Head Injuries Piling Up, The New York Times, July 29, 2001.

(13) Barnes, Julian E., Op Cit.

(14) Ibid.

(15) Ibid.