A Note on the Sunshine Act...

As we heard in Wednesday’s hearing, transparency in government is not always a sure thing. It is ironic that the very law that was passed to ensure openness and transparency in Commission activities, the “Government in the Sunshine Act of 1976” (5 U. S. C. 552b) actually does more to tie our hands in a 5-member Commission than to help us. That is why I believe strongly that we need a public hearing next week to discuss the recommendations the Commission will send to Congress on amendments to the CPSIA – before the January 15th deadline.

Once the President appointed a full bench to the CPSC last year, moving the membership from two Commissioners to five, the Sunshine Act requirement kicked in that more than two Commissioners are prohibited from being in the same private room with one another to discuss a pending matter---such as, the kinds of recommendations we should send to Congress to amend the CPSIA, or how we can find more flexibility in the law for small businesses. As a result, our only time for discussion amongst ourselves on these crucial issues is during our weekly public hearings over the webcast.

The consequences of avoiding direct communications with your colleagues (other than 1-on-1 discussions), an over-reliance on staff to fill the gaps, and finally, preventing any discussion of the matter in public are twofold: 1) As a Commissioner, my conversations with another Commissioner on these important topics quickly become meaningless after that Commissioner or myself have furthered the discussion at another time with one of the other three, and; 2) The spread of information from Commissioner to Commissioner (or through staff) often becomes a game of “telephone” where the fact or anecdote starts with one person, is passed to another, and may be barely recognizable by the time it gets to the other Commissioners. Stories take on a life of their own, as I have experienced firsthand, and significant things like facts get gently pushed aside in the interest of deadlines and schedules.

The implementation of the CPSIA is the most important issue before the Commission at this time. If we do not have an open, public discussion amongst the five Commissioners about why the CPSIA needs to be changed and what we will recommend to Congress, the facts and truth behind these issues will never fully see the light of day. Incorrect assumptions on the economic impact of the law or the science behind it will go unchallenged. There will be little to no “sunshine” on the Commission’s activities to make changes, or avoid making them, on a far-reaching law that has impacted thousands of families and businesses—and which we are running out of time to fix.