Good evening, ladies and gentlemen, and welcome to THE ADVOCATES, the PBS Fight
of the Week, coming to you from Boston's historic Faneuil Hall. Tonight's question: "Should
Congress establish an independent consumer protection agency?" Tonight's moderator is
Congressman Morris Udall, Democrat from Arizona. Arguing in support of the proposal is THE
ADVOCATES' regular moderator, Michael Dukakis, a Boston attorney and former member of the
Massachusetts Legislature. Appearing as witnesses for Mr. Dukakis will be Charles Ross, former
member of the Federal Power Commission, and Democratic Representative Benjamin Rosenthal of New
York. Arguing against the proposal is Michael Uhlmann, an administrative aide to Senator James
Buckley of New York. Appearing as witnesses for Mr. Uhlmann will be Professor Richard Stewart of
the Harvard Law School and Roger Miller, a Professor of Economics at the University of
Ladies and gentlemen, may I have your attention, please.
Congressman Udall has just called tonight's meeting to order.
Good evening, ladies and gentlemen, and welcome to THE ADVOCATES. Tonight's
question is a vital issue which will be of considerable concern to many in the Congress during
the weeks and months just ahead. Specifically, our question is, "Should Congress establish an
independent consumer protection agency?" Advocate Michael Dukakis says, "Yes."
The American consumer is being taken to the cleaners. And if I can mix a
metaphor, we're paying through the nose for it. We need somebody in Washington to speak for us.
And that somebody is a tough, effective, and independent consumer protection agency.
And Advocate Michael Uhlmann says, "No."
The proposal for a consumer protection agency is open to the same indictments
that its proponents make of businessmen - false advertising, misleading labeling, and false
Thank you, gentlemen, and we'll be back in a moment with your cases, but first a
word of background on tonight's question. We're all consumers. Everyday, we use a variety of
goods and services, most of them provided by American industry. Most of us try to consider such
things as cost, quality, and safety in what we buy. And these concerns are shared, to a
considerable degree, by a large number of federal agencies set up by Congress. And their main
job is to monitor and to regulate the activities of industry. These federal agencies make
decisions that affect all of us. If the Federal Power Commission decides to grant a rate
increase, the price of natural gas is bound to go up. Or, if the Environmental Protection Agency
insists on tough emission standards for automobiles, their cost will go up. And the Food and
Drug Administration can determine the availability of new drugs or the content of foods that we
eat. And television advertising and product labeling are affected by actions of the Federal
Trade Commission. In setting forth hundreds of rules and standards, these agencies use a variety
of formal and informal proceedings. And for years, consumer activists have claimed that the
voice of the consumer has not been adequately heard in such proceedings. And they've urged
Congress to establish a new independent consumer protection agency or CPA, as we'll call it
tonight, whose job would be to appear before all of the other federal agencies to represent
consumers. And under this proposal, the CPA would have the right to call witnesses, to make
arguments, to file appeals in all of the formal proceedings of these agencies, and to be heard
in informal proceedings. In addition, the CPA could take another federal agency to court if it
disagreed with its decision. And so now, to the cases. Mr. Dukakis, why should Congress
establish an independent consumer protection agency?
In recent years, there has been an enormous increase in the concern consumers
have for the prices they pay and the quality of the products and services that they buy. Why? Is
this some nefarious plot engineered by self-appointed protectors of the consumer? Is this an
effort to undermine the foundations of the American free enterprise economy? Of course not. It's
the inevitable result of a mass society in which the individual consumer simply doesn't have the
time, the energy, or the bargaining power to fight for the kinds of products and services which
are rightfully his. And it represents a deep-seated public reaction against corporate neglect,
bureaucratic disregard, shoddy merchandise, misleading advertising, unsafe products, and
one-sided lobbying for loopholes and secret deals in and out of government designed to sell out
the consumer -- things that the American consumer once may have accepted, but he or she no
longer is prepared to suffer in uncomplaining silence. And so, the proposal we debate tonight is
simple. It's sensible. And it's long overdue. It would create an independent consumer protection
agency to represent the consumer with sufficient staff and! funds to do that job effectively.
Now, this agency would not be able to grant or deny rates. It would not regulate anything. Its
sole responsibility would be to represent the interests of consumers in proceedings before
federal regulatory agencies and the federal courts in matters where there is a substantial
consumer concern. Some people say why can't the existing federal regulatory commissions do the
job. To tell us why they can't without the help of an independent consumer protection agency, I
call on our first witness, Mr. Charles Ross.
Mr. Ross, welcome to THE ADVOCATES.
Charles Ross was, from 1959 to 1961, the Chairman of the Vermont Public Service
Board. He was appointed by President Kennedy as a member of the Federal Power Commission in 1961
and was reappointed by President Johnson, serving as a member of the Federal Power Commission
for seven years. Mr. Ross, you were the chairman of a state regulatory agency and a member of
the Federal Power Commission. How is the consumer represented before the Federal Power
Commission in Washington?
Before I answer that question, I want to make it abundantly clear that while I
was in regulation, I believed in it. I still believe in it. I think it's one of the primary
first lines of defense for the consumer. But as one who's experienced more than 10 years in
regulation, I needed all the help that I could possibly get. It's a tough job. Unfortunately, at
least so far as my experience on the Federal Power Commission is concerned, we didn't have
enough consumer representation. Essentially, what we did was referee battles between large
special economic interests. Sometimes these battles might be to the benefit of the consumer.
Other times, and in recent years, some of these economic interests are dropping by the wayside,
and we no longer get that tough adversary position in which good decisions are the result.
Well, Mr. Ross, you were a member of the Commission. You had a staff. Why
couldn't the staff of the Federal Power Commission give you the kind of advice on the consumer
side of things that you say you needed?
First of all, the staff, as are the commissioners, are bound by the statute. In
most cases, as in the case of the Federal Power Commission, the statute requires you to broadly
balance the public interests. The staff has a responsibility not to take hard sides. It has to
be concerned about the future, the health of the industry. It has to be concerned about the
consumer. It has to be concerned about everybody. As a result, you don't get a strong advocate's
position. Secondly, sometimes, unfortunately, but this is the case, some of the staff are on the
make. They want to get promoted. In other cases, the staff may get banned to Siberia if they
take some positions that the commissioners do not particularly favor.
In addition to this, Mr. Ross, federal regulatory commissions very often get
very close to the industries they're supposed to be regulating. Why is that the case?
Well, it's been said by some prominent people that it's a question of the care
and feeding of regulators. When I went to Washington in 1961, every major executive of the gas
companies which were under our jurisdiction would stop by with the exception of one. This
happened to be the Chairman of the Board of the El Paso Natural Gas Company. He came by six
months later. He apologized. He said, "I've been in the hospital. But don't worry, Charlie, I
know all about you. I've contacted all my friends in Vermont, anybody you've ever had anything
to do with; and at the present moment, you pass muster.
How about citizens groups, organizations like Ralph Nader's? Can't they
represent the consumer in front of agencies like the Federal Power Commission, the Trade
Commission, and so on?
I wholeheartedly endorse the efforts of public interests groups like Mr.
Nader's. On the other hand, they are essentially special-interest groups. Also, they don't have
the funds. They don't have the staff. And furthermore, there's a question of accountability.
With a consumer protection agency, that would be owned by the public. And if the public has a
gripe about it, if they feel that the positions being taken are not truly representative of the
consumer, there is an outlet, and the agency would have to account to the people.
Mr. Ross, I suspect Mr. Uhlmann disagrees and may have some questions for you.
Mr. Ross, it's often argued by proponents of the consumer agency that
regulators on the federal agencies are sometimes the captives of or have to play a hostage role
to the very industries they regulate. In your experience on the FPC, was that true?
I will say that, without any question, through a variety of means, flattery,
Well, did they try any of this on you? Were you subject to flattery?
Did you consider yourself the captive of the industry you regulated?
Did you consider any of your fellow commissioners to be the captive of the
agency they regulated or the industry they regulated?
I will answer you in this fashion. I always found it helpful to know that
somebody was checking up on me, to know that my positions, that I had to account to
You were somehow able to immunize yourself against the entreaties of the people
you were regulating. If you were able to do it, why weren't others able to do it? Isn't it
really a question of who the men are who are on these agencies?
There's no question that one of the key factors in effective regulatory
performance in Washington is good personnel.
Well, what assurance is there that the man who heads the consumer agency will
be the type of person you want? What is there about the CPA that is unlikely to make it the
captive of various interest groups?
Because he will have one charge, and that is essentially and only to represent
Yeah. But the charge given to all other federal agencies is to represent the,
quote, "public interest;" and yet you quite obviously feel that they don't do that. Now, what's
The federal regulatory agency tries to represent the people, but it has to work
under a specific statute, as I pointed out, in which they have to balance the interests of the
industry, balance the interests of the competing companies...
And the consumer administrator won't have to do any balancing of
I would suspect that in most cases...
There's a single consumer interest out there?
An undivided whole of consumer interest that he can seize upon and say, "This
This is obviously, and I'd be the first to confess, one of the more difficult
problems that an administrator of the Consumer protection Agency would face.
Well, let's see how insulated the administrator of the consumer agency would be
from industry pressures. How much money, for example, does General Motors spend on lobbying
regulatory agencies, roughly? Lots of money, don't they?
Millions of dollars. All right. Do you think General Motors would be likely or
unlikely to try to spend money in trying to influence the Consumer Protection Agency?
I would suspect that the industry will do exactly what they did...
...with the federal regulatory agencies. They would try to ingratiate
themselves, to be nice guys, to make the Consumer Protection Administrator feel that when he
makes a decision, he's making the decision not in terms of General Motors but Joe Blow, a heck
of a nice fellow.
Well, how about Joe Blow? Will he have the time, money, and effort to come to
Washington, to fly on a plane, to provide equal and opposite influence to the Consumer
But as someone who left the Washington scene and went back to the State of
Vermont, and someone who knows what goes on in Washington, and someone who gets terribly
frustrated because I have no voice, even as much as I know, I cannot afford to take the time. I
cannot afford to appear...
But if I had an agency...
What makes you think you will have this voice with the CPA?
Because if I had an agency and I could write them a letter and say, "I have
this gripe, this bitch, and I think you ought to take the position..."
But the CPA can't solve your gripe or bitch, can it? It can only refer it to
another federal agency. Isn't that correct?
It can represent me, sir. And, furthermore, what this agency will do, and a
very prime function, it will be monitoring the effectiveness of the performance of the federal
Well, let's talk about that. Suppose the Federal Drug Administration is about
to license a drug, and the Consumer Administrator receives a number of complaints from people
who are concerned about this drug. The Consumer Administrator then intervenes in the FDA and
tries to stop the drug from being issued. Where will the consumer agency get its experts to
argue against the FDA experts?
As I understand it, under the bill, the Consumer Protection Agency not only has
a staff but can go out and hire experts. One of the difficult points in regulation in Washington
is that the consumer has very few experts to hire...
And sometimes the experts disagree, don't they?
The regulated industry makes it a practice to get as many people on retainer as
possible, and thereby prohibit or minimize the type of representation that they might
Well, let's say...
Mr. Uhlmann, you'll have another opportunity to get back at Mr. Ross here.
Let's go to Mr. Dukakis now for some more questions.
Just one more question. Some people say that Congress ought to do the job. They
ought to make these agencies behave. What about that kind of criticism?
Well, after all, Congress, in the first instance, gave the job of regulation to
these federal bodies because it was too complicated, it was too detailed, it took too much of
their time, and they just couldn't afford to spend the time to do that job. So they gave it to
regulatory agencies. And they don't have the staff. I had Congressman Harrington call me the
other day and ask me, "Charlie," he said, "What do I do about a possible sale of certain natural
gas properties by New England Power of the New England Electric System to the Boston Gas
Company? Who do I see? Who do I talk to?" He doesn't have the staff. He doesn't have the time.
Congress can't do it. And I don't think there's anybody in the United States at all that will
honestly recommend that Congress try to supplant the efforts of regulatory bodies.
Mr. Ross, let's go back to the example I raised before. Let us suppose the
experts of the consumer agency disagree with the experts of the FDA. The FDA wants to go ahead
and license the drug in any event. The CPA takes the Drug Administration into court, and the
judge is faced with two different groups of experts, both representing two different federal
agencies who disagree on the issue in question. What is a judge likely to do in those
circumstances? How is he to decide if the experts themselves cannot decide?
Well, the judges in the Circuit Court of Appeals in Federal Power Commission
cases are faced with this problem constantly. The United States Supreme Court...
What's their most common solution to that problem?
...has been faced with a number of cases in which this very issue has
And isn't their most common solution to precisely that problem to remand the
case back to the agencies for new hearings?
Isn't that the common solution?
No, sir, it is not.
I'm sorry, gentlemen, our time has expired. Mr. Ross, thank you very much for
being with us on THE ADVOCATES here tonight.
Mr. Uhlmann suggested that maybe General Motors would spend some money to
influence the administrator of the Consumer Protection Agency. I hope they don't spend it to
investigate his private life as they did with Ralph Nader. All right, let's turn to the
principal sponsor of this bill in the House of Representatives, Congressman Benjamin
Congressman Rosenthal, welcome to THE ADVOCATES.
Congressman Rosenthal is a congressman from the Eighth Congressional District
of New York where he has served for 11 years, and he is the principal sponsor of legislation to
create an independent Consumer Protection Agency in the House of Representatives of the
Congress. Congressman, why do we need an independent Consumer Protection Agency?
Well, let me see if I can put it in perspective. Congress established all of
the regulatory agencies ostensibly to protect the public interests and specifically the consumer
interests - the Federal Power Commission, the Federal Trade Commission, Food and Drug
Administration, and dozens of others like it. All of these agencies are quasi-judicial in
nature. To our non-lawyer friends, that means there's a hearing officer such as Congressman
Udall, and there's a table for the opponents and proponents to present their case. This is sort
of a semi-trial. But in those situations, only one of the witness chairs is filled. In other
words, there are advocates for only one side of the case. The consumer has no representative or
voice, organized voice, in Washington. Whenever a rate increase is applied for by the telephone
company before the Federal Communications Commission, or the gas company before the Federal
Power Commission, they bring in, very frankly, a battalion of lawyers, a platoon of economists,
large groups of well-organized people. There isn't anyone there to oppose that application. When
the Agriculture Department, their marketing administrator wants to permit the sale of cancerous
chickens, as they did in fact. When the Department of Commerce holds hearings and for five years
delays enforcing Flammable Fabrics Act, and 65 people are burned to death in Marietta, Ohio.
These are the reasons we need such an agency, in other words, to provide some balance in the
hearing process. It's absolutely unrealistic to have one side of the issue be adequately,
thoroughly well-prepared, and the other side, the consumer side, to have no one at all -
occasionally an individual citizen without the resources or the competence to make the
Congressman, let me ask you this. Some of the critics of this proposal say that
all you're doing is piling a new bureaucracy on top of an old and rather tired and an inert one.
What makes you think that the Consumer Protection Agency is going to hang on to its guts when
some of these regulatory commissions have not?
Well, let me say this. That argument is absolutely absurd. This agency will
have no regulatory decision-making power. The reason these other agencies have been infested by
the Washington lobbyists is that they have the ability to make decisions. This agency will make
no decision that will affect industry, commerce, or any individual. All they will have is the
right to appear and to appear before other quasi-regulatory agencies. If the decision is
unsatisfactory, they'll have the right to appeal to the courts.
You're suggesting the expenditure of about $20 million a year, I think, and
about 400 to 600 employees. What about that?
I'm suggesting that...
A brief answer, Mr. Rosenthal.
I'm suggesting this agency has the same number of employees as the American
Battle Monuments Commission, which is 400.
Thank you, Congressman.
I hate to do this to a colleague in the Congress, but...
Don't do it then.
...I think Mr. Uhlmann has some questions for you.
Congressman, after hearing you say that this agency would have no power to
affect industry, I'm surprised that you support it so strongly. Clearly, it will. It doesn't
have the power to regulate, but it has the power to haul every other federal agency, almost
without exception, into court and make them do something, or at least try to get the court to
make them do something. Let me ask you this, though. How many consumers...
Let me just add one thing so the record is clear.
It has the power to be a lawyer. That's all the power it has, nothing beyond
It's got more power than any other lawyer or group of lawyers in the United
States now has; and that's the power to bring any other federal agency into court...
The Washington law firms have more power than law firms throughout the country.
They're well equipped.
Well, they aren't paid by the taxpayers to do it.
They're paid by their clients who are well represented.
All I want is a lawyer on the other side.
Let me ask you this. There are 210 million consumers in the United States with
literally billions of consumer interests. How many consumer administrators, commissioners, will
Well, the Consumer Protection Agency...
...under the Senate bill would have three;...
...under the House bill, it would have one. I think there's some variance of
opinion of which would be more efficacious.
All right. Now, I'm interested in how these three or four men are going to
Or one man, as the case may be.
...or one man, as the case may be, are going to decide real cases. Let us say
that the agency goes into business, and no sooner does the office open than Ralph Nader arrives
with his report on the safety defects of the Volkswagen and asks the agency to go into the
appropriate federal agency and to ban the Volkswagen from the roads as an unsafe car. No sooner
is that done than League of Volkswagen Owners, representing not less than five million
Volkswagen drivers in the United States, comes in and asks him to do precisely the opposite. How
will the Consumer Administrator decide such a case? What criteria will he use to represent the,
quote, "consumer interest?"
The judgment that I would use if I were lucky enough to be appointed
Administrator of the agency would be to determine if there is an identifiable consumer
Well, in this case, which would it be?
Would it be the interests of the Volkswagen owners...
...or the interests of Ralph Nader's concern for safety?
I'm willing to try to answer if you'll permit me. I think he has to find the
identifiable consumer interest. I would not intervene in a case unless it affected broad numbers
of the public and it was identifiable that it was concerned principally with consumer interests.
There are many issues where there will be varying degrees of consumer interest. Now, in the
interest of safety, the Administrator might move and appear before the Federal Highway
Administration or the Department of Transportation and let the other side make the case, for
example, the balance of payments, the export problem, and so forth. If one can identify the
Why should a consumer agency intercede on behalf of one set of consumer
interests and require the other set of consumer interests to go on their own, which is what they
have to do now?
Well, you take a case like Santa Barbara, California...
Well, let's take the Volkswagen case.
Fine. If I were the Administrator, I would assess the implications of the
safety recommendations, what the dangers were, what the number of people who were involved were,
and I probably would recommend that we intervene on behalf of safety.
Is there anything in the bill that requires the Administrator to make a
finding of fact before he determined something to be in the consumer interests?
Right. In some cases, for example, if he didn't appear in the...
Well, is there anything in the bill that requires him to make a point of
Yes, there is. Absolutely.
...before he determines that there's a consumer interest?
Well, when he finally makes a judgment, he has to file a certification of what
the consumer interest is.
But there's no preliminary proceeding that's required before he does that. He
can simply issue the piece of paper and say, "I find that this is a consumer interest worthy of
protection. Is that true?
Well, let's hope...
Isn't that true under the bill?
Let's let the witness finish, please.
Let's hope the Senate won't confirm a fool who would do something like
Well, let's take a hypothetical situation. Congressman, as you well know, the
farm support and subsidy program costs a lot of billion dollars a year, to be precise, roughly
$10 billion a year. This has, among its other effects, the effect of driving up food' prices
that housewives and consumers must purchase. Congress, for years, has refused to cut back the
farm subsidy program, and yet this costs the consumer a lot of money. What would you, as
Consumer Protection Administrator, recommend in such a case?
I'm not sure that in a public policy question like that I would recommend
anything at all.
Congressman, I really hate to interrupt. We must go back to Mr. Dukakis now
for some more questions.
Just so we can flush out the record, Congressman, who is it in Washington
these days that opposes this bill? Could you tell us?
The bill is opposed principally and hysterically by the National Association
of Manufacturers, the United States ...
Did you say hysterically or historically?
Hysterically...the United States Chamber of Commerce, and vigorously and well
financed by the Grocery Manufacturers of America. They have created an atmosphere of fear and
hysteria among all their members. One of the problems is that the trade representatives in
Washington like to have something to do, and I've kept them pretty occupied this last few
Thank you, Congressman.
Mr. Uhlmann, a final question or two from you, sir.
Congressman, suppose a nominee for the consumer agency were one who was
opposed to the continuation of the farm support program. How much chance do you think he'd have
of being confirmed by the Senate?
I don't know. Senate confirmation is something you ought to direct to Patrick
What do you think your fellow Democrats, Hubert Humphrey and George McGovern,
who are no less in favor of the consumer than you, are likely to do in a case like that?
I don't think that's really the issue. Those are basic public policy decisions
that I don't necessarily think this advocate should become involved in. He should
Safety, price, and quality of goods in the marketplace is not a public policy
No, I said it is a public policy. I would try to narrow in and zero in on the
more precise, more exquisite, consumer interests. In the first year as the agent, that's what I
Well, why didn't you write the bill that way?
Congressman Rosenthal, I really hate to interrupt, but time has expired, and
we thank you very much for being with us on THE ADVOCATES here tonight. Mr. Dukakis.
Thank you, Congressman. I think it should be clear by this time from the
testimony of Mr. Ross and Congressman Rosenthal that Washington is crawling with a lot of
high-price lawyers and lobbyists who are doing their best to get their clients theirs. And you
are paying the bill. Well, who speaks for you? As you listen to Mr. Uhlmann and his witnesses
present their case, ask yourself who it is that will be your representative in Washington if we
accept their view that nobody should represent the consumer before regulatory agencies and the
Thank you, Mr. Dukakis. And for those who may have joined us late, Mr. Dukakis
and his witnesses have just presented their case in favor of Congress establishing an
independent Consumer Protection Agency. And now, to the case against. Mr. Uhlmann, the floor is
The question before us tonight is not whether we are for or against consumer
protection but whether this proposal is likely to provide it, and, if so, for whom and at what
price. If the problem is that we do not know which agency to go to to complain, this new agency
could serve a clearinghouse function; and there'd be no debate tonight. But beyond this, what
will this new agency do that all other agencies have failed to do? If you buy a defective
product, under this proposal, you will still have to go to another agency or to a court, at your
own expense, in order to get final redress against the manufacturer. Secondly, this new agency
cannot possibly represent all consumers because all of us disagree as to what we want in the
marketplace, whether in automobiles or hair tonic or breakfast cereal. What this new agency
will, therefore, do is to represent some consumers at the expense of other consumers. What
control will you, the consumer, have over this new agency? Answer? None. What power will this
new agency have that other agencies do now have to penalize manufacturers of shoddy goods?
Answer? None. What redress will you, the consumer, have if it decides to intervene on behalf of
a consumer interest with which you happen to disagree? Answer? None. In order to make these
points clearer, I call upon my first witness, Professor Roger Miller.
Professor Miller, welcome to THE ADVOCATES.
Dr. Miller is an associate professor of economics at the University of
Washington. Dr. Miller, would the consumer agency be able to provide a higher quality and safer
product for the American consumer without hurting the consumer in some way?
No, definitely not, because safety and higher quality cost.
What kinds of costs?
Well, first, and most obviously, if we do establish a Consumer Protection
Agency, there will be the additional cost of one more bureaucracy in Washington. But more
importantly, in almost all cases, we find that higher quality products cost us more. They are
not as inexpensive as lower quality products. The most obvious example is we have a choice
between driving a $9,000 Mercedes or a $2,000 Volkswagen, and it seems to me that it is the
consumer who should be able to make that choice himself.
Well, under this proposal, who will be making such decisions or affecting such
Well, depending on which bill passes, it will be either one, two, three, or
four bureaucrats in Washington who will be making the decision; and these will be bureaucrats
who are going to try to make a decision for 210 million people.
The same kinds of bureaucrats who gave us our national transportation
That's right. The same kind of bureaucrats who gave us the national
transportation mess, who gave us, for example, a multimillion-dollar housing project in St.
Louis which they are now destroying - they had to tear it down - and the same bureaucrats, I
might add, who ordered an 82-year supply of Kellogg's freeze-dried tuna salad mix for the
Dr. Miller, whom will the consumer agency represent, in fact?
Well, the consumer agency will represent, most obviously, the interests of
consumers who are most like the bureaucrats in the agency, people who already have tastes and
income for higher quality, safer products, more expensive life style. They will not, obviously,
be able to represent a diverse group of people which, at this time, number 210 million.
Well, what will be the likely consequence of their decision-making? Will it
result in higher or lower costs for the consumer?
Well, as I mentioned before, it is generally very difficult to have a higher
quality or a safer product without having higher costs to produce that...
Which not all consumers can afford.
...and therefore, we find that it will be the more wealthy consumers who will
benefit from this type of legislation and this type of advocacy, and it will be the poor who
will be hurt.
Will the consumer agency be able to redress the balance of power between the
individual consumer and big business?
Well, strangely enough, just the opposite will occur because after a while we
don't have the Ralph Naders around to save us from big businessmen. We have, on the other hand,
people who are very interested in furthering their own self interests and who have the resources
to do this; and guess who those 18 people are? Big businessmen.
Well, is this merely conjectural, is this merely harum-scarum about this
Well, it's not conjecture. We have several decades - there are more than
several decades of history of this happening in all other federal regulatory agencies. And the
most egregious example is the Interstate Commerce Commission, and it is already starting to
happen with the National Highway Safety Administration.
Do you see anything in this bill that would insulate this agency from the same
type of influence?
None whatsoever because we are a diverse group of people and we don't have the
same interests, whereas, businessmen always have a much more specialized interest in furthering
certain types of legislation.
Professor Miller, let's see what kind of friendly or penetrating questions Mr.
Dukakis has for you here now.
Thank you, Congressman. Professor Miller, I suspect Mr. Nader would be
surprised to find that the piece of legislation he's called the most important piece of consumer
legislation in the history of the nation is a tool of the rich. But let's see if I understand
what you're telling us here. Do you believe that the federal regulatory agencies these days, on
the whole, are doing a pretty good job on behalf of the consumer or not?
I think the record speaks for itself, and we know that, in fact, most
regulatory agencies have a pretty shabby record.
Well, do you think there are any federal regulatory agencies these days that
are doing a pretty good job on behalf of the consumer? Can you name me one?
None. Well, do you think the federal government has any role to play in
protecting the consumer at all?
Oh, it has a very big role to play, and one of the most obvious things it can
do to protect the consumer is to provide more information to the consumer. It can, if it wants,
for example, subsidize more consumer unions so that consumers have much more information to make
And you'd favor that.
Yes, I would favor that the government would not enter into the information
industry itself; but if it wants to provide more information, it can subsidize already existing
information producing firms.
Well, what about the field of product safety? Does the federal government have
any role at all to play in protecting us from harm as a result of unsafe products? Isn't that an
appropriate function of the federal government? Or do you think that we just ought to be
informed that a child's toy may put the child's eye out? Is that sufficient for the federal
Well, you're falling into the trap of sort of assuming that people are stupid
and ignorant and if you give them correct information, they are unable to make choices for
themselves. And I don't think that's a correct way to view the buying public.
Well, how does the mother who is told that she ought to take thalidomide
supposed to know that as a result of information?
Well, if we knew that thalidomide was dangerous in the first place, the FDA,
the Federal Drug Administration, would not have allowed it on the market. We didn't know until
after the fact. Those kinds of obvious things, if they're obvious, we have regulatory agencies
today to take care of that. We don't need a CPA for that.
Certainly no problem in defining the consumer interest in banning thalidomide
The consumer interest in...
What's the consumer interest? Is there a competing consumer interest other than to ban such a product?
Well, if we had present regulations that the Food and Drug Administration has
now, we would not be able to take aspirin because they don't know why it works. O.k., so
obviously, you have cases where there are competing consumer interests. There's never...
No, I didn't ask you that. What about thalidomide? Is there any competing
consumer interest other than getting that product off the market as quickly as possible?
O.k. Let's try some others. How about unsafe toys which are not immediately
obvious to be unsafe? Is there any other consumer interest...
Yes. Oh, very definitely. Safer toys generally cost more money. You can
purchase crummy plastic ones, and they may chip, and your kid will get scratched. Or you can
purchase wooden ones that are sanded, and they cost three times as much. Some...
So you don't think it's in the interest of the consumer to prohibit those toys
from being sold.
All right. What about radiation hazards from microwave ovens or from color TV
sets? What are the competing consumer interests in permitting some of those things to be sold on
I don't have the technical knowledge to answer that. I don't know what the
trade-offs are for eliminating the last one percent of radiation out of the color TV tube.
Well, I suppose the trade-off is that somebody is going to be irradiated if
you don't get it off the market.
Well, but it is not that clear-cut. It's not that everybody that gets near a
color TV is going to die. It's that the level is at a certain amount of radiation, and that if
you're exposed to it for 55 years, you may cut a month off your life. It's not as cut and dried
as you're making it.
All right. How about babies' cribs, slats located in such a way that a baby
can stick its head through those slats and strangle itself? What's the competing consumer
interest other than to get that baby's crib out of the marketplace.
I think if that's such an obvious example, we have existing laws and agencies
to take care of that.
How about adulterated meat? How about a competing consideration on that
Again, we have the Food and Drug Administration. We have the United States
Department of Agriculture. I understand that you...
I understand that, but I'm not talking about that. I'm trying to get at this
point you were attempting to make, I gather, with Mr. Uhlmann, which is that in these kinds of
problems, there are two, three, or a hundred competing consumer interests.
In adulterated meat, we do have competing interests. There are stores you can
go to where the meat is adulterated and a lot cheaper, and some people prefer to buy adulterated
cheaper meat than unadulterated more expensive meat.
And you would be perfectly happy to have them do that.
If they have the information and make the choice themselves, that is not my
I see. How about lead paint poisoning? Everybody knows that it's the kids of
the rich that eat lead paint. But what about lead paint poisoning? Is there a...
Again, this is an information question, and I fully agree that the government
can subsidize or require, in this case, the labeling, correct labeling, of lead paint.
But you certainly wouldn't...
Mr. Dukakis, let's go back to Mr. Uhlmann for a couple of more questions here
now. Thank you.
Dr. Miller, if not a Consumer Protection Agency, what is the most important
thing that could be done to help the consumer?
I think the most important thing that could be done now to help the consumer
is to help him make more rational choices in the marketplace, and that's by providing more
information, and that's by, for example, requiring stricter labeling of products, by fostering
or subsidizing, in this case, more consumer unions which do product testing and give the results
Thank you, Professor Miller, for being with us on THE ADVOCATES here
Aren't you going to let me ask another question, Mr. Udall?
Mr. Dukakis, I'm sorry. O.k. I'm sorry.
I'm still confused, Professor, by this idea that information is all we need.
Supposing we have a secondhand car dealer who keeps turning back the odometer, you know, the
mileage indicator on cars. How do we inform the consumer that he's doing that?
In general, the consumer finds out very readily when, three days after he buys
the car, it falls apart.
Well, what does he do if he doesn't have the government as an advocate for
In general, what happens is that businessmen who practice business in such a
way usually go out of business after a while.
Have you ever tried to sell a used car back to a used car dealer?
No, you can sell it to someone else.
Try it sometime, and you'll see what it's like. Thank you.
Thank you, Professor Miller. Mr. Uhlmann.
It is curious in Mr. Dukakis' list of horribles that there is not a single
item on that list of horribles that is. not now preventable by some federal law or some federal
agency if there was some bureaucrat down there who had enough smarts and enough courage to do
something about it. This agency would add nothing new, nothing new, to that solution to that
parade of horribles. I call as my next witness Professor Richard Stewart.
Professor Stewart, welcome to THE ADVOCATES.
Professor Stewart teaches administrative law at the Harvard Law School.
Professor Stewart, will the consumer agency help the consumer? Will it make the administrative
agencies more honest?
No, I think it's a simplistic response to a complex question. Some agencies
don't work at all, and they hurt the consumer, like the Interstate Commerce Commission that has
made a mess out of our transportation system. It should be abolished by Congress. Creating the
CPA is simply going to prolong its existence by giving the illusion that the consumers are
protected. Secondly, there are some agencies that are doing a fine job now, like the
Environmental Protection Agency. The CPA would simply needlessly interfere with their work.
Finally, there are still other agencies that need shaking up, that need stronger leadership,
that need reform. The CPA is no substitute.
What are the major specific difficulties with this proposal?
Well, first of all, as Mr. Miller indicated, the CPA has the impossible
decision of trading-off between conflicting consumer interests. An advocate is only good if he
is given a clear mission. Congress has not given him any clear mission as to how to choose in
that respect. Secondly, the only weapon that the CPA has is, first, obstruction by intervening
and prolonging agency decision making, which is purely negative, and secondly, taking the matter
to the court when there is a conflict, and that's the wrong place for these cases.
Well, there's a peculiar characteristic of this agency, too, isn't it, that it
has no power of enforcement of its own? It must rely on other agencies to do the job.
That's right, and it can only sap their resources and energies by drawing out
informal proceedings and then going to the judiciary and dragging out for two, three, four, five
It's what might be called creative destruction, isn't it?
Let's hope it's creative.
What's wrong with that kind of creative destruction?
Well, first of all, I think that it's very costly, in terms of delay and
resources, that there are far more effective and direct remedies to invigorate agencies. And
secondly, it's power without responsibility. It doesn't have any clear program. It doesn't have
any clear constituency. It doesn't have to balance off competing interests in the public
interest. It can simply take a negative and obstructionist role.
Well, another objection you made to the agency was that the agency could force
all these decisions into the courts. Isn't that what the courts are designed for?
No, I think, as Mr. Miller illustrated, we have some very fundamental
trade-offs here between income groups and tastes, and those fundamental, social, and economic
choices should be made by the elected representatives, by Congress. Congress is attempting to
abdicate its responsibilities by tossing these choices off to the CPA, and ultimately to the
courts, who are not elected officials.
And in fact, the federal regulatory agencies were created precisely to keep
complicated questions of this sort out of the courts, weren't they?
Well, if not a consumer protection agency of this kind, then what alternatives
are there? What can we do to help the consumer?
Well, I think the Congress really has to face up to its real responsibilities
instead of creating this cosmetic approach. One, it's got to abolish a lot of existing agencies
that are harming the consumer and not doing their job, like the Interstate Commerce Commission.
Secondly, it has to give other agencies a clear direction and a clear mandate where that is
needed. Thirdly, it has to exercise its oversight responsibilities. Fourthly, it has to insure
that the people that are appointed to these agencies by the President are qualified to carry out
the job. I think we've had too many unfortunate appointments, and the Senate has not insisted on
its prerogatives there.
Isn't one of the real problems with the federal agencies the quality of people
who are appointed?
Yes, and I think that this will do nothing in that direction. And of course,
we have no assurance that the people appointed to the CPA are going to be really vigorous
At this point, let's go to Mr. Dukakis and test the quality of his questions
here to you, Professor Stewart.
Thank you, Congressman. Professor, you're a professor of law. Don't you
believe in the adversary system?
Well, what's the matter with it in front of federal regulatory agencies?
I think there's nothing the matter with it if we would get, and if you need, a
more active consumer protection in the agencies, these agencies have considerable staffs, vast
staffs. The chair is not empty. I have litigated a number of cases on behalf of business, and
the staff council is there. He's backed up by experts, by economists. And it's just completely
wrong to say that there's nobody on the other side representing the public interests.
Let me see if I understand you. Are you suggesting that what the agencies
ought to do is to provide some staff, at least, whose job it is to speak for the consumer in
To speak for the public interests is what the staff does now. And if Congress
thinks that consumers are underrepresented in the decision making by commissions, it can give
them a clear direction, it can exercise oversight in order to insure that the consumer is better
represented by the existing staff that is now available.
And would that mean consumer advocates within that staff or people responsible
It might be. It might be. There are experiments being carried out. Perhaps if
You wouldn't object to that.
I think in some areas, it might be worthwhile. What we now have is a blanket,
across the board prescription for all agencies. And I think, as I indicated, it'll perpetuate
the existence of agencies that ought to be abolished and therefore hurt the consumer.
Well, let me ask you this? If you're in favor of having consumer advocates
within the staff of these agencies, how do they determine what the consumer interest is?
I think this is the Congress' responsibility, in each particular agency, to
give clear directions. The problem with the CPA, as it's drawn up, is there's no guidelines for
defining the consumer interest. In transportation, I think we ought to have freer competition
and lower fares, for example, and I think it's the Congress' responsibility to tell the staff to
tell the commissioners that that's what they ought to do.
But you don't believe that the consumer interest can't be defined or found, do
I think it can be, but I think it's the Congress' responsibility to face up to
You don't agree with Professor Miller who doesn't think you can find
Well, I do. I think...
It doesn't exist, he says.
No, I think there are hard choices here to be made, in some areas, between
product quality and product cost, and poor people versus rich people. But those judgments are
the ones for the Congress to make and not to give it to the CPA which is not an elected
Let me ask you this because I'm confused. How does Congress decide whether the
El Paso Gas Company ought to put a pipeline into Los Angeles or not? How do they make that
Obviously, it's not equipped to decide...
Of course, it isn't. So what does it do?
It gives guidelines to the agency as to what policies it ought to adopt in
carrying out the protection of the public interest.
But that involves' a great deal of delegation to that agency of responsibility
in this area, doesn't it?
It does, but there has to be continuing watchfulness first by the Congress to
make sure that the directions are being carried out. And secondly, and I would stress this
again, scrutiny of Presidential appointees to these commissions. I think the Congress has not
done that job, and it's simply shirking its own responsibilities by passing this off to the
O.k., let's talk about the role of the courts and what the Consumer Protection
Agency might do there. At the present time, if a utility company has a proceeding before the
Federal Power Commission, I assume it can resort to the courts if it wants to. Can't it?
If it feels that the Federal Power Commission has handed down a pro-consumer
decision, it can take it to the court of appeals and maybe to the Supreme Court of the United
That's a very expensive procedure, isn't it? Who pays for it?
Well, the consumers do.
Sure, the consumer does. He doesn't have any choice about that either, does
he? He pays through his rates for all of those fancy lawyers who go all the way to the Supreme
Court of the United States. Right?
And that may involve enormous amounts of delay, mightn't it?
It involves some delay. Of course, you're going to exacerbate the situation by
having an additional person coming in here in the form of the CPA.
So, in other words, we have a situation at present where the industry can take
it all the way to the Supreme Court of the United States. The consumer pays the bill, but you're
not prepared to let an agency representing or seeking to represent the consumer do the same
thing. Now, why is that a fair procedure?
But, you're confusing matters because the agency, in the first place, the FPC,
is supposed to represent the public interest, and that includes the interests of consumers as
well as other groups.
But we know that often the FPC doesn't do that, don't we?
All right, and my answer to that is that you can't simply toss the job of
policing the Federal Power Commission over to the CPA. It's the Congress that has to face up to
that responsibility. It's simply trying to duck its proper responsibility.
But who takes that action? Who takes that proceeding up to the Supreme Court
of the United States if the Federal Power Commission violates the law. And that's been know to
happen, hasn't it?
What do you mean violates the law? Give me an example.
Well, citizens' environmental groups recently have been taking the
Environmental Protection Administration to court, haven't they? And they've said that the
Environmental Protection Administration has violated the law in permitting certain clean air
areas to drop in air quality, haven't they?
Yes, there's been such litigation.
Well, what did the court say on that? The court said that the EPA had violated
the law, didn't they? Now, that was a case where a citizen's group went to court and proved that
this agency had violated the law.
A brief answer, Mr. Stewart.
Now, was that a bad thing?
No, that wasn't a bad thing.
Well, what about the Consumer Protection Agency doing the same thing in the
Because I think that you should not have the government involved in being an
advocate for one interest out of many.
A citizen's group...
Mr. Dukakis, we'll get back to you in a moment. Some further questions from
Mr. Uhlmann, now.
Professor Stewart, if the CPA is enacted, what do you see as the likely
consequences? What lies down the road?
Well, if you accept Mr. Dukakis' and Congressman Rosenthal's arguments, if
consumers are represented, what about other groups? Poor people, Blacks, automobile drivers,
taxpayers. Why shouldn't they be represented here ...
...with all this waste of money. We're going to proliferate agencies. Each
special interest group is going to have its own bureaucracy. Every government decision is going
to be dragged into the courts. And we're going to have chaos.
Professor, do you object to citizens' groups taking these agencies to court if
they feel that the agencies are not complying with the requirements of statutes...
I have serious reservations about the extent to which such groups have been
permitted to come in and judicialize the governmental process.
You would limit the right of citizens to do that.
Yes, I would. I think that their recourse ought to be through the elected
process and not to have the judges decide these fundamental basic policy questions that really
ought to be for the elected representatives.
Even though the agency may, in fact, have violated the law.
There's still recourse in Congress for that. The courts are not our only
Thank you, Professor.
Thank you, Professor Stewart. We appreciate your being on THE ADVOCATES here
with us tonight. Mr. Uhlmann, a concluding statement.
Professor Stewart was quite correct in suggesting that delicate policy
decisions of this type belong in Congress. And as Congressman Rosenthal acknowledged in respect
to the farm program, major things which affect the consumer ought to stay in Congress.
Congressman Rosenthal doesn't want to give the farm subsidy program to this Consumer Protection
Agency. Why not? I think he ought to answer that question sometime.
Ladies and gentlemen, that completes the cases, and I now have the opportunity
to give each of the advocates a chance to summarize his case. Mr. Uhlmann, you're first.
If this were simply a proposal for a consumer grievance clearing house,
there'd be no debate tonight. But we are talking about something quite different. We are talking
about people who are supposed to represent your interests but whom you have to power to elect or
turn out of office or to hire or fire. We are talking about a few people sitting in Washington
who will never ask you what your interest is but who will decide for you what it ought to be.
Forty years ago, people like Congressman Rosenthal and others were saying that if we only had
the Federal Trade Commission. If we only had a Federal Power Commission or a Food and Drug
Administration, all our trials, Lord, would soon be over. Well, we got those agencies, and
everyone now agrees that they're a dismal failure, and this time they want one more. At last,
fully and finally at last, our trials will really, Lord, be over. Well, if we couldn't have
trusted them forty years ago and in every intervening period since, why should we trust them
this time? Vote, "No."
And now, a summary on the affirmative side of the case. Mr. Dukakis.
Thank you, Congressman. Mr. Uhlmann and I weren't born 40 years ago, but,
ladies and gentlemen, tonight's proposal seems so sensible and reasonable that I don't
understand how anyone could seriously oppose it. Yet, we've heard some very funny things this
evening, that an independent Consumer Protection Agency will cause undue delay, that its staff
will be populated largely by the wealthy who drive around in sports cars, and that, in fact,
there is no such thing as the consumer interest. I wonder what the mother of a baby that
strangled in that crib because the manufacturer wanted to save on wood would say to that, or the
senior citizen forced to barely exist in a squalid nursing home, or the young person maimed for
life by a car's faulty braking system. No, they don't have any doubt about what the consumer
interest means. They don't have any doubt that they, and millions of Americans like them, will
benefit from this kind of agency. The regulatory agencies of this country need a good, swift
kick in the pants, and you need a representative in Washington. I hope you'll join me in voting,
"Yes," on tonight's proposal. Thank you.
Well, I thank both of our advocates. I think we've had an interesting and very
productive and useful discussion here tonight. And we've now reached the point in the evening
where THE ADVOCATES turns to you at home and to you people here in the hall and asks you to make
your views known on the question tonight. What do you think about the question we've debated?
Should Congress establish an independent Consumer Protection Agency? On a letter or a post card,
send your vote to THE ADVOCATES, Box 1973, Boston 02134. As you have heard tonight, in the
course 32 of the debate, hearings on this proposal have just begun in the Congress. And as a
member of that Congress, I can tell you that when the people speak in a loud and clear voice,
your Congress will listen. So send your vote to THE ADVOCATES, Box 1973, Boston 02134. As you
probably know, THE ADVOCATES makes transcripts of these programs available to the viewing
audience. And if you at home would like to receive a copy of tonight's program, send two dollars
to that same address, THE ADVOCATES, Box 1973, Boston 02134. You should receive your transcript
within three weeks. And be sure to specify the program and include your name and return address.
That address, one more time, is THE ADVOCATES, Box 1973, Boston 02134. Now recently, THE
ADVOCATES debated two questions, one of them concerning a national lettuce boycott, and the
second relating to the national energy crisis. Let's see how you responded to those issues.
(Returns to be filled in at a later date)Tonight's program marks the completion of THE
ADVOCATES' regular broadcast season. In the weeks ahead, however, we will present three special
programs dealing with matters of timely interest. The first program will deal with the right of
teenagers to seek their own medical advice without parental consent. This program will be
broadcast early in May. Please consult your local newspapers for the time and the date. And now,
speaking for THE ADVOCATES staff and for regular moderator Michael Dukakis, may I thank you for
your many kind words about our program this year and for your support throughout the past six
months. We look forward to returning to the air for another season of weekly broadcasts early in
October, and I hope you will join us then. And now, will special thanks to our fine advocates,
Mr. Uhlmann and Mr. Dukakis, and to their distinguished witnesses, we conclude tonight's
THE ADVOCATES, as a program, takes no position on the issues debated tonight.
Our job is to help you understand both sides more clearly. This program was recorded.