The Republican Street Fight over Transparency in Government

A growing rift in the Republican Party about transparency has deepened within the Senate, with 16 Republicans now scolding a federal agency for the outrage of requesting that scientists submitting studies in a rule-making procedure identify any financial conflicts of interest. But to see just how crazy this scolding is, we need some background.

In 2008, the Supreme Court heard a case reviewing a punitive damages award against Exxon, following the 1989 Exxon Valdez disaster. As part of its argument, Exxon relied upon academic research that purported to show the irrationality in jury verdicts, at least in cases involving large punitive damages. Exxon had helped fund that research. It had hoped the Court would rely upon it to reach a conclusion in its favor.

Exxon won its case. The academic research did less well. In a footnote to the Court’s opinion, Justice David Souter wrote, The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are con- fronted with the same hypothetical case. … Because this research was funded in part by Exxon, we decline to rely on it. (emphasis added)

To many, Justice Souter’s care was admirable. The Court should protect itself from scholarship-for-hire, or even the appearance of scholarship-for-hire (which in this case was the worst that could have been said of the scholarship at issue). Taking care to explicitly discount such research might slow the flow of such work into the judicial process in the future. That, in turn, could make it less likely that the Court would be misled by compromised science.

But to some, the footnote felt a bit precious. For within the modern administrative state, agencies rely upon research “funded in part by” an interested party all the time. So why should a federal agency be required to consider conflicted research while a court is free simply to ignore it?

No one better understands the dangers in conflicted science than the chief administrator of the Occupational Safety and Health Administration, David Michaels. Michaels is an epidemiologist and a professor (on leave) from George Washington University. In 2008, he published a terrifyingly depressing account of the consequences of conflicted science, Doubt is Their Product. That title was drawn from the famous 1969 Brown & Williamson memo declaring “doubt is our product, since it is the best means of competing with the ‘body of fact’ [linking smoking with cancer] that exists in the mind of the general public.” The strategy of the tobacco industry was to use “science” to attack science, so as to generate skepticism about whether smoking cigarettes caused cancer.

Yet while the history of the abuse of tobacco research is well known, too many seem to think that the corruption it manifested was, or is, limited to tobacco. Michaels’ book showed it was not: that the same strategies perfected by the tobacco industry both predate and postdate the tobacco controversy. Indeed, the very same firms hire themselves out to a string of industries threatened with regulation because of the safety threats alleged to be caused by their products. From lead (in 1965, the American Petroleum Institute stated that “all ‘accepted medical evidence . . .proves conclusively’ that lead in the environment presents no threat to public health”) to chromium-6 (in 1976, OSHA determined a “comprehensive occupational health standard is urgently needed”; 30 years later, the regulation was completed, with the delay caused in part by studies “funded in part by” the industry regulated), to countless other other examples, regulators have repeatedly faced mountains of “data” produced by “scientists” hired by industries threatened with regulation. That barrage slowed the government’s response to problems we all now concede were actually problems, while earning the threatened industries years of additional blood profit.

In 2009, Obama appointed Michaels to head OSHA. Armed now with actual authority, Michaels has tried to implement changes in agency policies that might avoid costly delays in necessary and justified regulation.

Last year, he took one small step: In the context of a rule-making procedure considering standards governing silica, the agency requested that people submitting scientific comments also include a declaration of any financial conflicts of interest.

Such a conflict, of course, doesn’t necessarily discredit the research. But policy makers (and the public) at least deserve a chance to know when the ordinary norms of science might be under some financial pressure, and also a chance to assure that a balance of research is presented on any particular question, not just research “funded in part by” the industry threatened with regulation.

Compared to the Supreme Court’s rule, this is pretty weak tea. OSHA was not declaring that it would ignore work that had been “funded in part by” the industry that might be regulated. It was not even requiring that anyone say anything at all about financial conflicts of interests — the rule was a request, not a mandate. OSHA was simply asking that commentators with a financial interest say something about that financial interest.

The obviousness in this “request” used to be commonplace among Republicans and Democrats alike. After all, it is Republican Chuck Grassley (R-IA) who has waged a virtual crusade — rightly, in my view — against academics who take money from industry to produce scholarship without acknowledging that conflict in any public disclosure. If it is a crime simply to publish academic work without being transparent about possible financial motives, it should certainly be permissible for a federal agency in the process of regulating to ask that entities trying to affect that regulation acknowledge any financial conflicts behind the data that they intend the agency to rely upon. As Grassley proudly declares on his website:

The public interest is clear. We all rely on the advice of doctors, and leading researchers influence the practice of medicine. Taxpayers spend billions of dollars each year on prescription drugs and devices through Medicare and Medicaid. The National Institutes of Health distributes $24 billion annually in federal research grants. So the public has a right to know about financial relationships between doctors and drug companies.

But Grassley’s view is apparently not shared by more than a third of the Republicans now serving in the Senate. Led by Tennessee’s Lamar Alexander, these senators objected (PDF) to the agency’s request that financial conflicts of interest be disclosed. The Senators were “very concerned about OSHA’s attempt to have commenters disclose their financial backers.” As Liz Wolgemuth, a staffer working for Alexander’s committee explained, “the chilling effect the financial disclosure could have seems counter to the idea of robust inclusion of a diverse set of ideas and views to inform the rule-making.”

The “chilling effect?” Seriously? What’s the chill? That the shrinking violets of the cement industry will be too afraid to hire lobbyists to present their views about the (non-) dangers in inhaling silica?

There may well be a chill here, but it has diddly-squat to do with the one Senator Alexander fears. (My mom’s from Tennessee too, so I get to use that word.) What is chilling is the idea that 16 United States senators would argue that there is some public interest in allowing people who seek to influence federal policy to hide the influences that might be affecting the quality of their research. It takes a willed obliviousness not to recognize just how harmful interested-science has been across the history of federal regulation — not always, but sometimes. And it represents a new low in an era of open government when senators criticize a federal agency for simply asking that conflicts be disclosed. No reputable academic journal would accept a publication without such a disclosure. Why should OSHA?

The real question here for the Senate—and for that matter, for President Obama, since he is, after all, the executive—is not whether OSHA, like Oliver Twist, should be permitted to beg for the disclosure of financial conflicts. (“Please, sir, tell me some more?”) The real question is why every federal agency doesn’t require disclosures of the financial interest of anyone seeking to affect federal policy through supposedly scientific submissions. Every single brief filed in any federal court must include a disclosure of interest by the parties making the arguments. Every senator must disclose every financial contribution (over $200) made to his or her campaign. Why, exactly, should federal agencies be any different?

That sounds like a rhetorical question, but I mean it quite literally as a question. I’m the first to caution skepticism about the panacea of transparency. Disclosure alone is certainly not enough to avoid the kind of corruption that affects both science and politics. But a century after Justice Brandeis’s now almost clichéd “sunlight is the best disinfectant” slogan, really, what is the argument, Senator Alexander, for allowing hired guns to hide a financial conflict of interest?

Because when such silliness appears on Senate letterhead, it makes it hard to ignore the sort of data that is still, thankfully, public in America. According to a study by the great maplight.org, in the lead up to this letter’s release, the interests who would benefit by non-disclosure made a modest but significant series of contributions to the senators who signed the letter. Now, no one serious thinks a senator would sell his or her vote. But this wouldn’t be the first time that we saw “Congressmen Gone Wild” in the face of contribution temptation. Ten months ago, I described a similar silly swooning by Democrats eager to woo back Wall Street. It’s hard not to see this defense of the delicate souls who crush rocks for a profession as anything fundamentally different.

The president should end this silliness tomorrow. By executive order, he should order that every agency accepting submissions presenting scientific analysis require the authors to include a statement of financial conflicts of interest. Let those statements be posted at data.gov. And then let the mavens of transparency do the work to raise the questions that trust in an open and free government depends upon.