Enforcing longstanding laws would limit corporate misbehavior, rein in villains, and earn cheers from nearly everyone
The end of Biden’s first year in office is fast approaching and the optimism that characterized its start is long gone. Supply chain problems, stalled legislation, a new COVID-19 variant, and nomination woes (both self-imposed and external) are all weighing on the collective national mood. Some are even starting to conclude that, regardless of what steps the administration takes in the coming year, Democrats are doomed to lose both houses of Congress next fall.
Longtime readers will know that we at Revolving Door Project do not subscribe to such a nihilistic view of American politics. On the contrary, we think that actions matter and that, with the right ones, undertaken energetically enough, this administration can still chart a path to victory. The available “right” actions — from rulemaking to leveraging contracting power — are many, and Biden is not yet deploying any of them to the fullest extent possible. But, as my colleague Max Moran and Data for Progress Political Director Marcela Mulholland highlighted in The New Republic last week, one in particular stands out for its potential impact and political potency: the power to crack down on corporate wrongdoing.
In a moment of deepening polarization, it is notable how unifying this agenda is. Data for Progress polling found that, by overwhelming margins (+70 to 80 points), likely voters agree that wealthy people and corporations regularly get away with breaking the law and that the Biden administration should change that. Responding to that bipartisan demand should be a no-brainer.
A corporate crackdown also carries distinct advantages for an administration that will be looking to clock big wins in the very near future. While new rulemaking can take years and legislating requires acquiescence from Manchin and Sinema, agencies across the federal government have significant power to take enforcement action right now. In doing so, they will not only be responding to a broadly-held, bipartisan demand for accountability, but also actively challenging the perception that the federal government doesn’t do anything for regular people. How? By delivering tangible benefits to those who have been, or otherwise would be, the victims of corporate abuse.
Assessing the Biden administration’s progress across all of these agencies and pushing it to deploy as-of-yet untapped powers will be the focus of our new joint initiative with Data for Progress, Corporate Crackdown Project. In the first report, “Protecting Workers From Corporate Crime,” Data for Progress’ Aidan Smith carefully examines four of the Department of Labor’s sub-agencies (the Wage and Hour Division, the Office of Labor Management Standards, the Occupational Safety and Health Administration, and the Employee Benefits Security Administration), in addition to the National Labor Relations Board, the Equal Employment Opportunity Commission, and the Office of the United States Trade Representative, detailing the actions they’ve taken, the many they haven’t, and the obstacles they continue to face. It’s a fantastic deep dive that’s well worth your time. And make sure to keep your eyes peeled for additional reports coming soon!
Needless to say, corporate America will not accept this new era of accountability without a fight. Just look at the counterattacks they’re already mounting in the face of new antitrust enforcement. The Chamber of Commerce has vowed an all out assault on Lina Khan’s Federal Trade Commission which is moving at an admirable clip to tackle corporate consolidation and hunt down fraud. Meanwhile, as we predicted earlier this year, Google is taking a page out of Facebook and Amazon’s playbook by demanding that the newly confirmed head of the DOJ Antitrust division, Jonathan Kanter, recuse from the ongoing case into the tech giant. As Jeff Hauser and I explained for The New Republic in September, Google’s (and Facebook’s and Amazon’s) arguments “are a joke” but giving into them would be no laughing matter; it “would not only pose a direct threat to Biden’s antitrust enforcement agenda, it would also set a precedent that could undermine public-minded enforcement of all kinds.”
Corporations, meanwhile, are actively benefiting from the presence of un-recused appointees who come out of regulated for-profit industries. See, for example, acting head of the DOJ Civil Division Brian Boynton who has been helping undermine action against for-profit colleges (his former clients). In a story for The American Prospect earlier this month, my colleague Hannah Story Brown documented the extraordinary lengths the DOJ and the Education Department are going to in order to defend the Trump-era rollback of gainful employment rules. That move leaves student borrowers at greater risk and is wholly unnecessary. Rather than expend scarce resources on a pointless lawsuit, the Departments should follow the Consumer Financial Protection Bureau’s lead, admit that the previous administration was wrong, and settle.
Political appointees are just one piece of the puzzle when it comes to cracking down on corporate wrongdoing. Whether it’s labor or the environment, effective enforcement requires capacity at the agencies charged with carrying it out. Our first Corporate Crackdown Project report shows how limited capacity at agencies like the Wage and Hour Division, the Occupational Safety and Health Administration, and the National Labor Relations Board threatens workers’ rights. A recent story from BloombergLaw, meanwhile, explored how an exodus from the National Enforcement Investigations Center (NEIC) — a small, specialized component within the Environmental Protection Agency that is responsible for collecting the evidence to support major environmental enforcement actions — is undermining accountability for corporate polluters. Rebuilding these agencies’ capacity will require a concerted effort to improve recruitment, hiring, and working conditions, and a major infusion of new funding.
Unfortunately, months after the Biden administration released its budget proposal, agencies are still operating under Trump-era funding levels. Congress failed to pass an omnibus funding measure in September and is set to punt again when funding runs out at the end of this week. While Democrats are pushing for a short-term stop gap that would carry us into January, Senate Republicans have indicated they want to see something that spans through March, April, or even May. With time before the midterms rapidly dwindling, those are precious months that the Biden administration cannot afford to trade away. It’s long past time that agencies got the capacity they need to fulfill their existing responsibilities and to fully implement new initiatives.
These delays also make it all the more important that the Office of Personnel Management be doing everything it can now to lay the groundwork for a hiring surge the moment new appropriations are passed. It continues to take positive steps — including by laying out new standards for telework and easing hiring for recent college graduates — but there’s still more to be done.
Beyond delaying the critical work of rebuilding, the end of year congressional logjam is also threatening to slow the already glacial pace on confirmations even more. That is particularly troubling when it comes to a handful of independent agency nominations. If, for example, Federal Communications Commission nominee Jessica Rosenworcel is not confirmed before January 2, Republicans will take the majority at the telecommunications regulator. Rosenworcel recently had her hearing in the Senate but has not yet been voted out of committee, meaning she still has to clear several time-consuming hurdles before confirmation.
Commodity Futures Trading Commission (CFTC) nominee Rostin Behnam, who has made it out of committee, seems likely to get a vote before the end of the year, but that will not be enough to restore a quorum at his agency. His fellow nominees have not advanced at all since their nominations were sent to the Senate in September.
When will Democratic leadership decide that enough is enough? The lengthy confirmation process is undermining the Biden administration’s agenda every day, especially at independent agencies. The Senate must take action to move nominees through more expeditiously. Read about our proposals here.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week: