The “Compromise” Conundrum

With my term drawing to a close at the end of October—amidst forced agency inactivity brought on by the government shutdown with both sides refusing to budge—I have been thinking about the concept of compromise. When do people of good will stand their ground and hold tightly to principle, and when do they budge a bit to reach a beneficial conclusion to a controversy? Is one’s thinking on this issue influenced by whether you hold a majority or minority viewpoint?

In a compromise, each side gives up something. Framed positively, a compromise is the mutual acceptance of an agreement’s terms; framed negatively, a compromise involves each side surrendering to the other on some goal or principle.

The shutdown negotiations (which, like most of you, I can only observe) trigger memories of the CPSC’s experience with compromise over the past several years. On many issues, large and small, the Commissioners have not compromised and instead have voted along party lines with the minority on the losing side of the vote. This produced flawed actions, many of which lacked support from all agency stakeholders. This made the actions more time-consuming and expensive to implement, and has made enforcement of new rules more spotty. Had there been some real compromise, the result would have been regulations, policies, or actions that were equally protective of safety and also more legally, substantively, and politically robust. In short, at the CPSC, too often compromise has been viewed as capitulation, with the parties unwilling to move at all off basic principles to find middle ground, rather than as a tool for finding mutual agreement.

Some examples, you say?

First, consider the database mandated by the CPSIA and which went operational in 2011. This came to the Commissioners for a vote with no effort to find middle ground. The majority rejected every amendment offered by the minority with little or no consideration of the amendment’s merits. Each vote was divided on party lines. Accepting only a few of the offered amendments could have resulted in a database supported by a unanimous vote. Instead we have a database that continues to be controversial and that many, including members of Congress, believe may be salted with complaints generated by plaintiffs’ attorneys anticipating litigation. And we now have a federal district court judge who condemned our process for posting complaints on the database saying that the agency’s process “convert[ed] the CPSIA’s remedial scheme into a ‘sport of chance.’” See Company Doe v. Tenenbaum, Civil Action No. 8:11-cv-02958-AW at *43 (D. Md. Oct. 22, 2012), quoting Judulang v. Holder, 132 S. Ct. 476, 487 (2011).

Our decision to lower lead limits to 100 parts per million (ppm) offers another example. This decision expanded our enforcement challenge dramatically without a corresponding increase in safety. (Remember that our staff found that the health benefits have already been realized without moving to a lower limit. In other words, there was no real health benefit to pushing from 99.97% to 99.99% lead-free children’s products.) Yet it was impossible to find agreement even on so common-sense a thing as a public enforcement policy stating that our compliance resources would be directed to those products that presented the biggest threat to safety. It would be interesting to know how many agency resources are directed at finding violations of items that, although above the statutory lead limit, do not pose any real risk to children.

The testing rule and the component parts rule offer further examples of parties digging in on positions so that the resulting rules are excruciatingly complex—in the case of the testing rule—or so laden with requirements as to render them virtually useless—in the case of the component parts rule (that was touted as offering testing relief).

If I were to continue the list, it would be a long one indeed. But the point is that too often here at the agency, there has been neither incentive nor effort to find positions that accommodate differing points of view. Our organic statute, setting up the agency as a Commission, contemplated that differing points of view would be brought to the table.

If Commissioners who hold a minority viewpoint are being asked to agree to a regulation that requires them to move on points of principle (perhaps by either getting too little or giving up too much) then the majority should acknowledge and respect that, and make accommodation by also moving to the middle. That does not happen much at the CPSC. But it is there that compromise lies, assuming one wants to look for it.

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