Who Regulates the Regulators?

Today, the Washington policy environment of the late 1960s seems like a distant cousin of our present political system. This was the world in which an obscure Ralph Nader’s exposé of the Corvair’s dangers induced General Motors to launch a clumsy spying operation against him, landing him on the cover of Newsweek. Nader went on to be the progenitor of a public interest law movement that would transform the insider’s game of Washington politics. This game cried out for new players and fresh rules, even as Congress extended its long arc of Democratic Party control. Nader and his minions delivered: the civil rights, environmental, consumer, and women’s movements roiled the nation.

Yale historian Paul Sabin exhumes this world in Public Citizens, a slim, highly readable account of the efforts by Nader-cloned activists to rescue the public from its slumbers about dimly appreciated ecological risks, consumer abuses, and political corruption. For those readers who were alive and politically attentive at the time (your reviewer worked with Nader and Consumers Union in the 1970s), there is little new here. But for the vast majority of younger readers, Public Citizens is a concise, workmanlike, well-documented account of innovation—in politics, law, policy, organization, and communications—at a time when it was all rather new.

The book gets off to a conceptually disappointing start with frequent references to liberals and liberalism but no careful, discerning definition of the terms despite their utter centrality to his narrative and analysis. For example, Sabin’s introduction describes Nader and the upheaval he precipitated as the “key to a much larger and more complex attack on traditional liberalism,” leaving readers with only a vague sense of an ardent belief in federal government intervention in markets. Nor, oddly, does the index contain an entry for either term. Since the author views Nader as both the avatar and an opponent of liberalism, this omission leaves a fundamental lacuna in the analysis that limits its analytical depth. Beyond bland generalities, what is the liberal conception of politics, the supposed duties of liberal citizens, and the congruence of those duties with their vision of the good, largely private, life? Naderism raises all these questions and more but the book scarcely mentions them.

Instead, Sabin’s story begins with “the New Deal and its aftermath [which] represented a high-point in Americans’ faith in government’s capacity to shape society and the economy.” He presents many institutional examples of this faith: the Tennessee Valley Authority, Robert Moses’ massive infrastructure projects in New York City, the Atomic Energy Commission, federal highway projects, and the Administrative Procedure Act, applicable to all federal programs not otherwise procedurally directed.

Even by the Kennedy Administration, however, some of the early enthusiasts were disillusioned, led by James Landis, dean of Harvard Law School and a leading architect of New Deal programs. The fact that most of these programs were products of a business-labor-government consensus meant that the reform impulse demanded more grassroots initiative, more public participation, more representation by political outsiders. Several of the early protests took the form of written declarations of principle like the 1962 Port Huron Statement of Students for a Democratic Society, Yale law professor Charles Reich’s revelation of a “greening of America,” Rachel Carson’s indictment of pesticides like DDT in Silent Spring (1962), Jane Jacobs’ 1961 attack on Robert Moses’ pharaonic works, Nader’s Unsafe at Any Speed (1965), and many other protests against what liberal, federal-style government had wrought. In later years, as Sabin shows, many of the organizations that funded and launched attacks like these came from the establishment of liberal foundations, universities, and nonprofits.

Sabin recounts these stirring, David-and-Goliath stories well but they are familiar, oft-told ones; there is little new here. In fact, he repeats some of the analytical missteps of earlier accounts—for example, treating consumer and environmental protection as essentially the same theoretical challenges. Thus, he blurs or conflates the distinction between the different kinds of failures that plague consumer and environmental markets—information and competition deficits for the former and externalities for the latter. He also fails to discuss some of the other challenges to effective reform in both areas: for example, some substitutes for DDT were even more toxic to humans and wildlife than DDT had been.

Part II of the book focuses on the creation of public interest firms, mainly by lawyers, and the work of nonprofit groups and foundations in supporting reform efforts. Again, Sabin’s account is serviceable but I have three quibbles. First, this territory was well plowed long ago by a host of journalists and book authors. (Indeed, I reviewed two of them in 1972, fifty years ago!) Second, Sabin cites as evidence of Nader’s “politically ambidextrous positioning” the fact that two of his “Raiders”—Edward Cox (who later married Tricia Nixon) and William Howard Taft IV—“would go on to successful careers in and around Republican politics.” However, I know of no other exception to Nader’s thoroughgoing leftism. Third, Sabin refers to “a new understanding of power that emphasized the corrupting influence of institutional structures and societal position.” But far from “new,” this ancient wisdom goes back at least to Aristotle and, in the 19^th century, Karl Marx’s attack on organized religion as the “opiate of the people.”

Sabin next shows how Nader and his allies sought to immunize liberal policies from subversion by government compromise and delay. Their technique was “command-and-control" regulation, featuring “deadlines, mandatory statutory requirements, citizen suits, and judicial review [marking] a clear separation from earlier regulatory strategies.” Now, the compelling question was, “Who regulates the regulator?” Increasingly, their answer was: the courts! Sabin shows that the vast majority of new environmental litigation was brought against regulatory agencies rather than companies or private parties (though he fails to explore the comparative merits of this choice), and he notes how structural and partisan changes in Congress affected the potency of reformers’ strategies. (An interesting datum he cites concerns the sharply declining returns to environmental groups on direct mail that occurred during the 1970s.)

Working as a “public interest lawyer” from 1971–77, I was pleasantly surprised by how effectively lawyers for liberal causes managed to use that self-glorifying title. As Sabin points out, however, conservative groups were challenging this gambit as early as the mid-1970s, establishing their own public interest law firms. When I and many others entered the Carter Administration, that public relations honeymoon ended, a shift exemplified by the many compromises that the Carter appointees made once in power which the book ably recounts in areas ranging from energy to water projects to internal government reform. Nader attacked numbers of his former Raiders over their decisions, most famously over auto safety and airbags.

Congress’ failure to adopt a Naderesque consumer protection agency was a particularly bitter defeat. Noting the similarity between Nader’s and Reagan’s denunciations of the Carter years, Sabin summarizes the dynamic nicely:

The attack on the New Deal state, culminating in Reagan’s election and so often attributed to an ascendant conservative movement, thus also was driven by an ascendant liberal public interest movement.

The result, he shows, was a stalemate in which little new so-called consumer and environmental legislation passed Congress. The stalemate over the role of government, Sabin concludes, continues today.

The book ends with a brief epilogue that identifies many searing failures of the public interest movement—but only in the most conclusory fashion. One wishes that Sabin had explored them in the detail that their importance deserves—especially in a book too short for its sweeping historical ambitions.

The public interest movement, he concludes, “refashion[ed] the relationship between citizens, state, and the private sector,” and also showed “how both markets and government are inherently limited and flawed. Yet so too is the strategy that Nader and others helped to pioneer.” Sabin goes on to enumerate a number of significant failures or unfortunate side effects of public interest advocacy, from overlooking regulatory capture by industry; to the movement’s disdain for traditional institutions, which “turned a generation of liberals away from local and state politics;” to litigation strategies that “proved to be overly dependent on sympathetic judges appointed by liberal politicians.” Of late, “the protective strategies used to prevent overdevelopment and protect the environment” have impeded addressing “major society problems by building housing, transportation, or energy infrastructure, such as the electrical grid or offshore wind power." In other words, citizen activism has become a roadblock to responsive government—as Francis Fukuyama has noted in these pages in the context of California’s “vetocracy.” As Sabin acknowledges, “amplifying citizen voices, seen from another vantage point, also could shift power from broad representative government bodies to narrow self-organized groups protecting a private interest.”

More fully exploring these crucial developments poses a compelling agenda for another study, hopefully by a scholar of Sabin’s evident talent.

Peter H. Schuck, Baldwin Professor of Law Emeritus at Yale Law School, is Distinguished Scholar in Residence at NYU Law School and author of many articles and books on law, public policy, diversity, immigration, and other subjects.

Image: American Museum of Tort Law