May 24, 2004

President Bush has installed more than 100 top officials who were once lobbyists, attorneys or spokespeople for the industries they oversee....

Here is a powerful, DAMNING expose, an example of real journalism, from the Denver Post. Of course, it has not been mentioned once on the air waves by the network news organization or their propapunditgandists. (It's the Media, Stupid.) This Denver Post story is also a COMPELLING example what anyone voting for the shell-of-a-man-formerly-known-as-Ralph-Nader is really voting for...

Anne C. Mulkern, Denver Post: President Bush has installed more than 100 top officials who were once lobbyists, attorneys or spokespeople for the industries they oversee....
In at least 20 cases, those former industry advocates
have helped their agencies write, shape or push for
policy shifts that benefit their former industries.
They knew which changes to make because they had
pushed for them as industry advocates.
The president's political appointees are making or
overseeing profound changes affecting drug laws, food
policies, land use, clean-air regulations and other
key issues.
Government watchdogs call it a disturbing trend, not
adequately restrained by existing ethics laws.

Restore the Timeline, Show Up for Democracy in 2004:
Defeat Bush (again!)

http://www.commondreams.org/headlines04/0523-02.htm


Published on Sunday, May 23, 2004 by the Denver Post

When Advocates Become Regulators
President Bush has installed more than 100 top
officials who were once lobbyists, attorneys or
spokespeople for the industries they oversee.
by Anne C. Mulkern

WASHINGTON -- In a New York City ballroom days before
Christmas, a powerful Bush administration lawyer made
an unprecedented offer to drug companies, one likely
to protect their profits and potentially hurt
consumers.

Daniel E. Troy, lead counsel for the U.S. Food and
Drug Administration, extended the government's help in
torpedoing certain lawsuits. Among Troy's targets:
claims that medications caused devastating and
unexpected side effects.

Pitch us lawsuits that we might get involved in, Troy
told several hundred pharmaceutical attorneys, some of
them old friends and acquaintances from his previous
role representing major U.S. pharmaceutical firms.

The offer by the FDA's top attorney, made Dec. 15 at
the Plaza Hotel, took the agency responsible for food
and drug safety into new territory.

"The FDA is now in the business of helping lawsuit
defendants, specifically the pharmaceutical
companies," said James O'Reilly, University of
Cincinnati law professor and author of a book on the
history of the FDA. "It's a dramatic change in what
the FDA has done in the past."

Troy's switch from industry advocate to industry
regulator overseeing his former clients is a hallmark
of President Bush's administration.

Troy is one of more than 100 high-level officials
under Bush who helped govern industries they once
represented as lobbyists, lawyers or company
advocates, a Denver Post analysis shows.

In at least 20 cases, those former industry advocates
have helped their agencies write, shape or push for
policy shifts that benefit their former industries.
They knew which changes to make because they had
pushed for them as industry advocates.

The president's political appointees are making or
overseeing profound changes affecting drug laws, food
policies, land use, clean-air regulations and other
key issues.

Government watchdogs call it a disturbing trend, not
adequately restrained by existing ethics laws.

Among the advocates-turned-regulators are a former
meat-industry lobbyist who helps decide how meat is
labeled; a former drug-company lobbyist who influences
prescription-drug policies; a former energy lobbyist
who, while still accepting payments for bringing
clients into his old lobbying firm, helps determine
how much of the West those former clients can use for
oil and gas drilling.

"When you go to work in lobbying, it is clearly
understood and accepted that your job is to advocate
for the interests of those who hired you," said Terry
L. Cooper, a University of Southern California ethics
and government professor. "When you go to work in
government, you are supposed to be responsible for
upholding and maintaining whatever you can identify as
the public interest."

The Bush administration says the regulators were
chosen for their abilities.

"The president appoints highly qualified individuals
who make their decisions based on the best interests
of the American people," said White House spokesman
Jim Morrell. "Any individual serving in the
administration must abide by strict legal and ethical
guidelines, including full disclosure of past lobbying
activities."

Six of the former industry advocates have faced ethics
investigations or resigned amid conflict-of-interest
charges. Those and at least 14 others have been
lambasted by public-interest groups.

Government ethics standards are part of the problem
because they don't fully address the kind of issues
that now permeate Washington, Cooper and some inside
government say. The rules focus mainly on direct
financial conflicts. Other, more nuanced conflicts
aren't addressed

"There are so many ways around, over and under these
(ethics) bans ... they almost never work," said Paul
Light, who for decades has studied the appointment
process for the Brookings Institution, a think tank in
Washington. "There're more screen doors than steel
doors."

A March 16 report from the Interior Department's
inspector general, for example, concluded that
department's "byzantine" conflict-of-interest rules
were "wholly incapable" of addressing ethical
questions involving a former energy lobbyist, J.
Steven Griles, as the department's No. 2 official.

The report called the department's ethics system "a
train wreck waiting to happen."

Bringing bias to a federal job isn't new. Presidents
of all political persuasions have appointed people who
shared their party's values.

As president, Bill Clinton peppered the federal
bureaucracy with Democratic state officials, lawyers
and advocates from various environmental or
public-interest groups.

Only a handful of registered lobbyists worked for
Clinton, however.

Bush's embrace of lobbyists marks a key difference
because it allows "those who are affected by the
regulations to determine what the ground rules should
be," said David Cohen, co-director of the Advocacy
Institute, which helps teach nonprofits how to lobby
in Washington.

While previous Republican presidents hired lobbyists,
"the Bush administration has made it rise in geometric
proportions," Cohen said, meaning Bush is "capturing
the instruments of government and using them for the
ends" that favor Bush's political supporters.

"In the Bush administration," said U.S. Sen. Joe
Lieberman, D-Conn., "the foxes are guarding the foxes,
and the middle-class hens are getting plucked."

Republicans and their lobbying allies reject the idea
that industry is embedded in the administration.

"Foxes? No," Vice President Dick Cheney told The
Denver Post. "I think we have a good track record."

The clout of industry is balanced by the power of
labor unions, trial lawyers and public-interest
groups, said Jerry Jasinowski, chairman of the
National Association of Manufacturers.

"The notion that somehow business gets everything and
we've gotten a free ride is absurd," he said.

Still, the lobbyists-turned-policymakers control or
influence health care, food safety, land use, the
environment and other issues touched by government.

HEALTH CARE

Ann-Marie Lynch

The drug-industry lobbyist who fought price controls
joined the Health and Human Services Department and
has helped drug companies avoid the limits.

Top aides in the Department of Health and Human
Services provide analysis and advice to the president
on key consumer issues, including prescription-drug
policies. In doing so, they consider the needs of
pharmaceutical companies seeking revenue for future
research, and consumers struggling to afford
increasingly costly medications.

In June 2001 Bush installed Ann- Marie Lynch, a
lobbyist for the drug- company trade group
Pharmaceutical Research and Manufacturers of America,
to help set those policies.

As a lobbyist, Lynch fought congressional attempts to
cap prices for drugs. Price controls, she argued,
would hamper medical innovation.

Thirteen months after Lynch became deputy assistant
secretary in the office of policy, her division issued
a report that praised brand- name drugs. It warned
that "government-controlled restrictions on the
coverage of new drugs could put the future of medical
innovation at risk and may retard advances in
treatment."

Consumer advocates say that's nonsense. Other
countries innovate despite price controls, said Gail
Shearer, director of health policy analysis for
Consumers Union, nonprofit publisher of Consumer
Reports.

"They haven't taken as seriously their job of making
medicines affordable to all Americans," Shearer said.
"When you talk about the need for (drug) innovation,
you have to put it in the context of, will people get
the wonder drugs?"

Critics say the report influenced congressional debate
over a Medicare drug policy that, among other things,
banned government from using Medicare's buying power
to cut drug prices. The legislation will mean an extra
$139 billion in profit over eight years to drug
companies, Boston University researchers said.

Republicans in Congress used arguments that came
"directly out of Ann-Marie Lynch's mouth" and from the
trade group she previously worked for, said Rep.
Sherrod Brown of Ohio, lead Democrat on the Energy and
Commerce Committee's health subcommittee.

Lynch declined to talk to a reporter. HHS spokesman
Bill Pierce said the report was not intended to sway
Congress. Provisions banning Medicare from negotiating
drug prices date to 2000, he said.

Lynch also blocked the release of about a dozen
completed research reports that challenge drug-company
claims, three former employees said. Pierce said Lynch
decides research topics and which reports are
released.

One 2001 report, for example, criticizes Medicare plus
Choice (now known as Medicare Advantage). Its findings
suggested that running the Medicare prescription-drug
benefit through private health companies - the method
the administration ultimately chose - would be more
expensive and would not serve rural areas well.

"Very few of (the private companies) manage to bring
in the benefit cost effectively," said Mark Merlis,
the private health policy consultant who wrote the
report.

Thomas A. Scully

The former hospital lobbyist presided over an agency
that helped a chain he once represented win a
favorable settlement in a Medicare fraud case.

Thomas A. Scully represented the nation's for-profit
hospitals as a lobbyist before being hired by the Bush
administration in June 2001 to head the federal
Centers for Medicare & Medicaid Services.

Eight months after Scully arrived at the Medicare and
Medicaid agency, it moved to settle final claims
involving HCA Inc., a hospital chain that was the
biggest member of Scully's former employer, the
Federation of American Hospitals. HCA Inc. faced
allegations it fraudulently overbilled the government
for Medicare cases.

Under the terms agreed to in June 2002 by Scully's
agency, HCA would have settled for $250 million.
Medicare fraud cases typically are ironed out with
Justice Department participation, but Scully agreed to
those terms on his own, said John R. Phillips, an
attorney who represented whistle-blowers in the case.

"The $250 million was a total sellout by Scully, who
totally negotiated it behind Justice's back," Phillips
said.

It also was handled in a way that protected the
company from a full review of its cost reports and the
triple- damage civil fines that can be imposed in
fraud cases, he said.

Sen. Charles Grassley, R-Iowa, asked Justice in
October 2002 if that deal was "too lenient."

Justice delayed the settlement until June 2003.

HCA, the nation's biggest for-profit hospital company,
eventually paid that $250 million, plus $631 million
in civil penalties and damages and $17.5 million to
states.

Scully's ethics agreement did not require him to
officially avoid cases involving HCA. But Scully said
he steered clear.

"I recused myself from everything involving
HCA-specific issues or policy and was not involved in
any way, shape or form," Scully said. "Every time
anything came up (regarding) HCA, I left it to my
deputies."

But Grassley in a June 25, 2002, letter to a Justice
Department lawyer said comments by Scully "have given
me great concern that there is an active, ongoing
effort underway to change or modify enforcement (on
Medicare fraud) policy that in my view could
significantly undermine the (law)."

Scully has since left the administration for
consulting jobs with a lobbying firm and an investment
company that represent Medicare providers.

Daniel E. Troy

The lawyer who represented major drug companies still
fights for causes that benefit them as chief counsel
at the Food and Drug Administration.

Daniel E. Troy was well-known at the FDA before he
arrived in summer 2001 to work as chief counsel, the
top legal position in the department.

As a lawyer in private practice, Troy repeatedly sued
the FDA, arguing that it had only limited ability to
regulate drug companies. He filed those suits through
the Washington Legal Foundation, a group funded by
businesses, including drug companies. Donors include
charitable foundations run by Pfizer Inc., Procter &
Gamble Co. and Eli Lilly & Co.

Troy also represented Pfizer through his firm, Wiley,
Rein & Fielding. Troy said in an e-mail to a reporter
that his Pfizer work was mainly communications and
insurance law, and averaged only 80 hours a year.

At the FDA, Troy still is fighting for causes that
benefit drug companies.

It's unclear whether any of pharmaceutical firms
responded to his December request for lawsuits the FDA
might get involved in.

By the time Troy made that offer, he had already
intervened in three drug-company cases as FDA chief
counsel. One involved Pfizer.

In court briefs, the FDA argued that it determines
which warnings a drug company must give consumers.
Lawsuits filed in state courts arguing that
drug-company warnings are inadequate therefore were
invalid, the FDA says. One of the cases Troy
challenged involves thousands of consumers who say
they were harmed by painful withdrawal from an
antidepressant.

Lawsuits accusing drug companies of telling consumers
too little about side effects constitute the largest
category of cases against drug companies, law
professor O'Reilly said.

If Troy's legal position prevails, O'Reilly said, it
would be catastrophic for consumers hurt by drugs. He
said it would bar cases like the one filed against the
makers of fen-phen, the combination of diet
medications tied to heart problems. The makers of
those drugs are settling with consumers for $14
billion. That case predates Troy's policy.

Troy, who declined to be interviewed, said in a
written statement that the FDA is intervening in the
lawsuits to protect "the safety, effectiveness and
availability of important medical products."

He said that would be "adversely affected if judges
and juries acting under state law had the power to
substitute their judgment for the expert
determinations made by FDA scientists."

Clinton's Justice Department, he added, took the same
legal position, arguing that federal law pre-empts
state law.

But prior to Troy, professor O'Reilly and one FDA
official said, the government got involved only when a
judge asked. Troy, in contrast, is seeking cases in
which to intervene.

And the FDA now is staking a new legal claim, experts
say: that its authority to determine drug labeling
always trumps any claims made in state court.

The FDA is "taking sides in private litigation," said
Thomas McGarity, a University of Texas Law School
professor and president of the Center for Progressive
Regulation, which supports government regulation on
health and safety issues.

The FDA asks drug-company attorneys to alert the
agency to cases because otherwise "our rules might be
undermined by contrary state findings" the agency is
unaware of, said Peter Pitts, an FDA spokesman.

He added: "For people to infer that (FDA) decisions
are made with anything but the public health as our
focus is untrue, unfair and very ill-considered."

FDA officials also say they want to discourage
frivolous lawsuits, which drive up costs.

A former FDA chief counsel in the Nixon
administration, Peter Barton Hutt, said he supported
the FDA's legal position but added, "I probably
wouldn't be out there encouraging" lawsuits.

Troy oversees other FDA changes that provoked
accusations that he is siding with drug companies.

In October 2001, the Health and Human Services
Department gave Troy's office final approval over
warnings telling companies they could be in violation
of FDA rules. Those had previously been sent out by
the FDA's drug-marketing division and district
offices.

After that change, the number of warnings of
questionable claims by pharmaceutical companies
quickly dropped from an average of seven a month to
two.

FDA spokesman Pitts said fewer letters were sent
because the process was centralized.

"If you torture statistics long enough," Pitts said,
"they confess to anything."

Others see this as dangerous to the public.

"This ... may be a welcome development for the drug
industry, but it poses serious dangers to public
health," Rep. Henry Waxman of California, the top
Democrat on the House Committee on Government Reform,
said in an Oct. 1, 2002, letter to HHS Secretary Tommy
Thompson.

Waxman said the bad policy decision was "exacerbated
by the appointment of Daniel Troy."

The investigative arm of Congress, the General
Accounting Office, in October 2002 also found that,
under the new system, warning notices "have taken so
long that misleading advertisements may have completed
their broadcast life cycle before FDA issued the
letters."

Waxman described the delays as "a development that
benefits the powerful pharmaceutical industry at the
expense of consumers."

FOOD SAFETY

Charles Lambert

As a USDA official, the former lobbyist for the meat
industry who opposed labeling told a hearing that mad
cow disease was not a threat.

Mad cow disease had yet to surface in the United
States last June when a U.S. Department of Agriculture
official - a meat-industry lobbyist only eight months
earlier - bet his job on the promise that the ailment
couldn't sneak into the country through imports.

Congress had just passed a law requiring meat labels
to state which country a cow lived in before
slaughter. Food safety groups say those labels could,
among other things, help consumers avoid buying beef
from countries with mad cow disease.

The USDA opposed such labeling. The person making the
agency's case, Deputy Undersecretary Charles Lambert,
knew the arguments against such labels. He'd made them
as a lobbyist for the National Cattlemen's Beef
Association.

Lambert spent 15 years at the Cattlemen's Association
working in Denver before coming to Washington, D.C.,
where he worked as lobbyist and chief economist. He
left in December 2002 to join the USDA as
undersecretary for marketing and regulatory programs.

When asked about mad cow and the labels, Lambert said
mad cow disease wasn't a threat.

"Is there a possibility that it could get through?"
Rep. Joe Baca, a California Democrat, asked Lambert at
a hearing last June.

Lambert answered, "No, sir."

"None at all?" Baca asked.

"No," Lambert replied.

"You would bet your life on it - your job on it,
right?"

Lambert answered, "Yes, sir."

The disease was discovered in the U.S. six months
later - apparently brought here by a cow from Canada.

Lambert now says, "I overstated my case."

More than a dozen other high-ranking USDA officials
appointed under Bush also have ties to the meat
industry.

"Whether it's intentional or not, USDA gives the
impression of being a wholly owned subsidiary of
America's cattlemen," said Carol Tucker Foreman,
director of the Consumer Federation of America's Food
Policy Institute. She served as a USDA assistant
secretary in the Carter White House. "Their interests
rather than the public interests predominate in USDA
policy."

When he came to the USDA, Lambert signed an agreement
stating that in his first year he would "not
participate personally and substantially in any
particular matter involving specific parties in which
(Cattlemen's) is a party or represents a party, unless
I am authorized to participate."

During that period he met at least 12 times with
current or former members of Cattlemen's and its
affiliates, an office calendar obtained by The Denver
Post shows.

Lambert said that at any meeting where policy was
discussed, he acted only as a facilitator and that
another USDA person was present. The calendar shows
meetings where other USDA people were present,
although it is not always clear what was discussed.

The rest of those meetings were at social settings, he
said.

"You're not required to sever all personal and past
relationships ... when you come to federal
employment," Lambert said in an interview.

ENVIRONMENT

Jeffrey Holmstead

The EPA official, a lawyer, formerly worked for a firm
that represents utility companies, which are among the
biggest air polluters.

When the Environmental Protection Agency issued
proposed changes to air pollution rules Jan. 30, the
wording troubled Martha Keating, a scientist with
environmental advocacy group Clear the Air.

"It struck me that I had seen this before," Keating
said.

At least 12 paragraphs were identical to or closely
resembled a Sept. 4, 2003, proposal given to the Bush
administration by Latham & Watkins, a law firm that
represents utility companies.

The EPA official overseeing the proposed changes is
Jeffrey Holmstead, who until he joined the EPA in
October 2001 had worked as a lawyer at Latham &
Watkins. His clients included a chemical company and a
trade group for utility companies. Power plants are
among the biggest air polluters.

Holmstead oversees the EPA division that governs air
pollution.

Environmental groups say the rewrite poses a health
threat because it slows the reduction of mercury
emissions by as much as 11 years. Those emissions can
end up in water where they contaminate fish.
Forty-three states have issued advisories about fish
consumption because of mercury pollution, the U.S.
Public Interest Research Group said.

One effect of the proposal would be that 168 of 236
Western-based plants, including those in Colorado,
would not be required to reduce those emissions at
all, Keating said.

Lobbyists commonly suggest wording for legislation.
But even EPA Administrator Mike Leavitt objects to how
this language was lifted.

"To take something from a source without noting it
doesn't seem to be the normal course of business, and
it shouldn't have been done," EPA spokeswoman Cynthia
Bergman said, speaking for Leavitt.

Holmstead declined to comment.

Six Democratic senators are asking for an
investigation. Ten attorneys general and 45 senators -
including three Republicans - have asked Leavitt to
void the proposed rule because of undue industry
influence.

The inspector general hasn't decided whether to
investigate. Bergman said the final pollution rule is
still under development.

LAND USE

J. Steven Griles

The tenure of the veteran energy lobbyist at the
Interior Department was labeled an "ethical quagmire"
by the agency's inspector general.

At the U.S. Department of the Interior, which oversees
some 507 million acres of national parks, refuges and
rangeland, top officials weigh the competing merits of
resource conservation and development.

Bush named J. Steven Griles, a veteran energy industry
lobbyist, as the department's second-highest official
in June 2001.

Griles earned $585,000 a year as a lobbyist,
representing an array of oil, gas and other energy
interests. As Interior's deputy secretary, he
continues to receive $284,000 a year for four years to
pay him for the value he had created for the firm by
bringing in clients.

Upon entering the government, Griles had pledged to
remove himself from deliberations that affected his
former clients.

This year, the department's inspector general called
Griles' tenure an "ethical quagmire."

"Mr. Griles' lax understanding of his ethics agreement
and attendant recusals, combined with the lax
dispensation of ethics advice given to him, resulted
in lax constraint over matters in which the deputy
secretary involved himself," the inspector general
concluded.

That report or a subsequent review by the U.S. Office
of Government Ethics found other issues:

A former business partner of Griles' hosted a party
for Griles and top Interior officials for land and
mining.

Also, a former Griles client, Advanced Power
Technologies Inc., won some $2 million in no-bid
contracts from his department after two people Griles
supervised pressed APTI's case.

And Griles urged the EPA not to press concerns over a
plan to open 8 million acres in Wyoming and Montana to
gas drilling by companies including six of his former
clients. The project is proceeding while a task force
studies the matter.

The investigations of Griles found no illegalities.
Secretary of the Interior Gale Norton announced that
her right-hand man had been "cleared."

Review of ethics guidelines

Neither the Bush administration nor Congress has
called for a systematic review of government's ethics
guidelines.

They should, says Stuart Gilman, president of the
Ethics Resource Center, a nonprofit group in
Washington that works with companies and government
groups.

"The question is, are we dealing with the problems
we're currently confronting in government?" Gilman
said.

Complaints about ethical breaches within government in
some cases can be politically motivated, said Gilman,
who also worked in the Office of Government Ethics
under Presidents George H.W. Bush and Clinton.

At the same time, Gilman said, governmental leaders
have a responsibility to eliminate both real and
perceived conflicts of interest.

"For government to function, government must have the
confidence of people," Gilman said. "If people don't
believe the government is acting fairly, it encourages
everyone to cheat."

Denver Post staff writers John Aloysius Farrell and
Mike Soraghan and researchers Tamania Davis, Barbara
Hudson and Regina Avila contributed to this report.

Copyright 2004 The Denver Post

###

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Posted by richard at May 24, 2004 11:39 PM