Pamela Gilbert: The Attorney Fighting for Consumer Safety

Pamela Gilbert spent years pressuring federal agencies from the outside, at U.S. Public Interest Research Group and Public Citizen's Congress Watch. Then she ran one. As Executive Director of the U.S. Consumer Product Safety Commission, she answered to Congress, industry, and a career staff, and learned what changes when the outside advocate becomes the implementer.

In this episode: the path from Tufts activism to Ralph Nader's network, how a small, underfunded agency drives outsized impact through recalls and the bully pulpit, what agency independence really protects, the Raechel and Jacqueline Houck Safe Rental Car Act, the anti-monopoly movement, and the decades-long corporate effort to shut the courthouse doors to regular people.

Pamela Gilbert is a Partner at Cuneo Gilbert Flannery and LaDuca in Washington, DC. She chairs the board of the American Antitrust Institute and serves on the board of the National Consumers League.

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Transcript

SPEAKER_00 0:00

It was all about product safety. It wasn't about liberal or conservative or or what's the agenda of the president. It was about is this product hurting people? How? And how do we fix it?

SPEAKER_01 0:15

Walk me back to the beginning. How does a math major from Tufts end up spending a career on accountability?

SPEAKER_00 0:24

So thanks, Alex. That's a good question. And it really did for me start back at Tufts, where I was a college student many, many years ago. So I had always been in interested, even as a young kid, in social issues. I followed the news. I grew up in the Vietnam War era, and my whole family, we were very anti-war. And I was interested in that and saw on TV that the activism was at universities. So I go to Tufts University. Well, the activism era was pretty much gone by 1976, but I didn't realize that, right? I was going to college. For me, college equaled activism. And so I went to Tufts and I found my people, but I had to work at it a little bit. But found a group of people. We were a small little army. We called ourselves the Tufts Political Action Coalition. And I started working on social justice issues. I focused on South African divestment, anti-nuclear power. Jimmy Carter was in reinstituting registration and we thought maybe a draft. We were against that. Anyway, it was a group of us who worked on those issues. South African divestment, probably the biggest one for me. And I loved that work. So I was a math major, you're right, but I never wanted to pursue mathematics. I was just kind of good at it. And so I decided to major in it. I just love the activism. There was a professor who was a mentor of mine in my activism work. And as I was graduating, I said, Can you get paid and do this kind of work? And he said, Ralph Nader pays young people, hires young people to do this kind of thing. And I, if I were you, I'd go to Washington, D.C. and work for Ralph Nader. And I did. There was a way to apply with your resume to a large group of Nader connected groups. And I did that. And I got a position. So this was after college, before law school, at a group called the National Citizens Committee for Broadcasting, which did media reform work. It was an entry-level position. I was the office manager. But just coincidentally, very, very lucky coincidence, that in the same workspace, Ralph Nader's office was there. There are dozens of Nader connected groups in Washington, D.C. And I chose one that was housed where Ralph Nader worked. I had no idea. But I got to know Ralph and I got to know the people around him. And everybody who was doing the kind of work that I wanted to do, which was public interest lobbying, public interest advocacy, were all lawyers. And so that's that's I decided to go to law school and pursue that as a career.

SPEAKER_01 3:21

I believe I read some article some time ago, Pam, when you first agreed to be on the show, that Ralph spoke very highly of you two, and he predicted that you would have a career in public service correctly.

SPEAKER_00 3:34

He challenged me to that, actually. I I left after a year to go to NYU law school on a public interest scholarship that I got largely, I think, because of the work that I had done with Neater. And he happened upon my goodbye party, and he's like, What? You're leaving and you're going to law school? And he just was like, it's gonna corrupt you. You're gonna go work for some big corporate law firm. And I said, I am not. I'm not gonna do that. I have no intention of doing that. That's not why I'm going to law school. And so he sort of challenged me to come back to what he calls civic action, which I did, but I wasn't surprised because I knew that was my focus.

SPEAKER_01 4:12

After law school, you went from pressing the Consumer Product Safety Commission from the outside to later running it when you got inside. How did it change your viewpoint after having a career where you were pressuring governmental institutions to then running one?

SPEAKER_00 4:33

So I was working for public interest groups connected to Ralph Nader for about 10 years after law school. And I was working on product safety issues, working to pressure the Consumer Product Safety Commission to do the right thing, working on legislation to improve the work of the CPSC. And I knew the product safety community because of that. And when I first came to Washington, DC, for the first 10 years, we had Republicans as in office who are not as consumer protection oriented as Democrats are. And so we were fighting, it was the beginning of my career. I was fighting the administration to do the right thing. Then Clinton became president, which is my first experience with a Democrat as president, as I being a public interest lawyer in Washington. So that orientation had to change. All of a sudden, these were our friends who were in the administration. So I had worked with Ann Brown, who President Clinton named as the chair of the Consumer Product Safety Commission. So she asked me to meet with her before she got that job to say, I just want your thoughts. What do you know about CPSC? What do you think I should work on? And we met for about an hour, an hour and a half and took a liking to each other. We knew each other, but not that well. And it was some months after that that she called me up and said, Would you like to come to the CPSC and be my executive director? Up until that moment, I didn't have an aspiration to work in the government. And I almost said no. I wasn't planning on that. That wasn't part of the plan. But when I asked for advice from people, every single person said, You're crazy if you don't take this opportunity. You're young. This is a great opportunity for someone. So that's kind of how I got there. So I hadn't done a lot of thinking about like what would change because I hadn't really done a lot of planning. And you are right. It's very different. When you're working for a public interest group, there's a great freedom to be as tough as you want, to be as strong as you want. You need to do as much as you can. You need to get that product off the market. You need to do a recall, whatever the issue is. Once you're inside and you're the implementer, you have many more pressures on you. You can't always go that far because you've got political pressures, you've got Democrats and Republicans in the Congress. They control your money, they control your statute. It's an independent agency, or at least it is until the Supreme Court changes that. And so you don't necessarily as at the CPSC report to the president, but you are serving in the president's administration. And so there's just a whole, and then you do have to work with the industry. And so who can sue you if you step over a line? Uh, and challenging education for me to not always be able to say yes to all the consumer organizations who are my friends, and to just be smart and to be a steward, a really an important steward of the for the taxpayers and of that agency. So, but having said all that, I will say that my chairman, Ann Brown, was one of the most aggressive regulators that the CPSC has ever seen. And so working with her and for her was a great, we did have a lot of freedom to push the industry pretty hard for safety.

SPEAKER_01 7:55

You mentioned several bottlenecks that are not present when you're outside the government, or at least not to the same degree. Was the bottleneck most often legal authority or money process or industry resistance? Or was it a mixture of all of those things?

SPEAKER_00 8:16

So it's all of those things, but I have to say I think for CPSC specific, and especially at that time, we had a very small budget, tiny budget, and just very, you know, not enough people and not enough resources to do the job. So when I used to give little speeches when I was executive director of the CPSC, one of my sort of lines in my speeches were that, and I don't know how this is today, but back then, the Pentagon spent the CPSC's annual budget every hour and a half just to give you some kind of perspective. Now, of course, the Pentagon is huge, but that shows how what a tiny, tiny little agency we were. And so we had to be really smart. And so what Ann Brown did, I think, to great effect, is she used her bully pulpit and her ability to get press, get on TV to force companies to do the right thing when it comes to safety, as opposed to always either bringing a lawsuit or passing a regulation, because those are very expensive, resource, time-consuming activities. And so she would always want to like sort of get to the results quicker. And that's what she would do and go on TV and call them out, or even raise the possibility that she could go on TV with this. And aren't we all better off if we just work together and fix the problem?

SPEAKER_01 9:45

She's focused on being a pragmatist and what actually works. And you're the same way I know.

SPEAKER_00 9:51

And it really worked well. And one of the nice things about working at the CPSC, which is maybe different from a lot of other federal agencies, it's uh what we do affects the public immediately. And it's something that the public understands. Like cribs, this is a crib that's unsafe and we're doing a recall. That you don't have to explain that to anybody. They get it. These are products that they see on their store shelves or in their homes, and they use them every day. And so we get their attention when we tell them that one of them may be dangerous for them or for their families. So that's a great advantage as a regulator, that we could really reach the public pretty easily with an understandable message.

SPEAKER_01 10:32

No metaphors are required to explain to the public the importance of an unsafe crib. That's it's apparent how dangerous that is.

SPEAKER_00 10:40

As opposed to some financial regulation that is important, but people don't understand how it works, right?

SPEAKER_01 10:45

Did you become more or less optimistic about regulatory capacity after your years in the CPSC?

SPEAKER_00 10:54

Probably less. I hate to say that, but probably less optimistic because more realistic, right? I just knew more and I knew how it worked. And I knew what had to go into a regulation or, you know, regulating an industry. And so, yeah, I think I was much smarter about the process when I came out and more forgiving, honestly, of the government employees who have to do this work and understanding how hard it is and that they really do work hard. I mean, there are many times there were tears at the CPSC because a child had died and it was a product that we knew about. We knew it was dangerous, but the there was, we did a recall, but the product was still there. I mean, that really it hit people very personally. So these workers, the employees were very dedicated and worked very hard. So I was much more understanding of them and what they had to go through and what the process was coming out.

SPEAKER_01 11:53

That budget you mentioned as well, you understand deeply the constraints that are imposed upon these civil servants.

SPEAKER_00 12:01

After I was at the commission, there was a huge scandal back in 2007 where lead was being found in Mattel toys and Barbie dolls and Thomas the Tank products, really products that like everybody who had kids had had them in their house. And it became a huge bipartisan effort on Capitol Hill to fix whatever was going on at the CPSC that allowed those products to come in. They were being imported and then sold in the stores. After my time, the commission actually got a lot stronger and got a lot more money. The statute was strengthened and they got more money. It's not to say that it's ever been a powerhouse, but it was strengthened significantly for a while. We are now in a place where the Supreme Court is probably going to rule that all of the independent agencies, and CPSC is one of them, that to lose their independence, that the president actually has the right to fire people at will at those agencies. And if that happens, I think that we're gonna a whole slew of independent agencies are gonna lose a lot of their authorities, unfortunately. The terms are staggered. The president's party gets to have a majority, but only by one. And so they're meant to be as stable as they can be, not to change with political wins and to be expert, like their scientific or expertise is what's important in those agencies. And while the parties, like when the parties change, the orientation of the agencies definitely changes, the priorities change, but the actual fundamental work doesn't. It really doesn't, because they're not partisan. That's safety. A crib can can strangle a baby, and it doesn't matter what party the baby's parents belong to. The baby is gonna get hurt by the crib. These are universal issues. And when it gets politicized in the way that I think it's going to be, all of that goes out the window. And then you just have another political agency. Just can't see once the agencies lose their independence that they're gonna be nearly as effective as they are today.

SPEAKER_01 14:22

I wonder who stands to win from that, that arrangement on the private side, private sector.

SPEAKER_00 14:27

I don't think the regulated industries, and again, this is not just CPSC, but across the board, I don't think they're for that at all. Because one of the things that our regulatory system gives them is a lot of stability, in fact. And that, you know, just party to party is gonna just change everything every time the president's party changes, that's not good for business. So what it means to to for an agency to be independent is first of all, these commissions are run by their multi-member commissions. In the CPSC's case, it's a five-member commission. No more than three members of that commission can be of the president's party. So it's usually if it's Republican president, three Republicans, and two Democrats, and then the chair of the commission is gonna be of the president's party. And so, and the com but they vote. So it is true that if you have votes that are partisan, it could be three to two, and then the that party is gonna win. But what the commission structure plays to is consensus. And that's what you try is agree on most of what is is going to be happening at the agency. But much more important is the staff that doesn't change when the president changes. And these are career jobs. I remember when I first got to the commission and they were taking me around the agency to introduce me to people. When if if they introduced me to somebody who had been working at CPSC for 10 years, that was a short timer. That was somebody who would say, I've only been here for 10 years. People stayed for their entire careers there, and they developed tremendous expertise about the products that they were working on. And these were scientists, technical staff, human factors, engineers who, again, it was all about product safety. It wasn't about liberal or conservative or what's the agenda of the president. It was about is this product hurting people? How? And how do we fix it? And what do we do to fix it? And given that kind of wealth of non-political expertise, when things then would trickle up to the commissioners, usually there wasn't that much controversy. Usually they accepted the recommendations of the staff. Of course, there are differences of opinion where different commissioners want to go further or less far on a fix or on being tough on the agencies. And that can change with personalities that change at the agency. So there are disagreements. It's not always work on consensus. But what it isn't is political in the like capital P sense of, oh, there's an election coming up. So we better not do so many recalls because we want to make sure that the industry isn't mad and the president gets re-elected or something like that. Like that's just it just doesn't come into it. In fact, it would be illegal. As an independent agency, we're not allowed to get involved in the politics of what's going on. And so we were removed in that way. And it gives you tremendous freedom to just, regardless of the politics, stick to your uh job.

SPEAKER_01 17:46

Right. Right. And those civil servants, the short timers who've been there for 10 years as well, truly dedicated to that work. Pam, you pushed the Safe Rental Car Act over the finish line. Uh that will provide some background, but I want you to explain it further with your expertise. There were two sisters, uh, Rachel and Jacqueline Hauck, 24 and 20, who were killed by uh an unrepaired recalled rental vehicle. You spent years fighting against the combined opposition of the rental car industry, auto manufacturers, and then you got the rental car industry itself to flip sides to your favor.

SPEAKER_00 18:30

This was one of my most proud projects and just challenging, and really it was such a human experience because I worked with the mom of Rachel and Jacqueline Hauck. Her name is Callie Houck. Uh, she is the one who found an advocate whose name is Rosemary Sheehan, who's based in California. She sought Rosemary out to say, I want to make what happened to my daughters illegal. It should never have been legal. And what happened to them is that a rental car company had a recall notice about these PT cruisers that were on their lots for free. When you get a recall notice for free, you can get those cars fixed. And rather than do that, the rental company kept it on their lot because they didn't want to take it out of commission because then you don't make any money off of the car while it's being repaired. And so instead of doing that, they continued to rent it. These two sisters, Jackie and Rachel, uh, rented the car. It was a steering defect where the steering hose would warm up and actually catch on fire from friction, was a defect. And that's what happened. And so they lost their ability to steer, went over the median of the highway they were driving on in California right into a tractor trailer and were killed at the scene. And the car was unrecognizable because it burst into flame. The poor truck driver, I understand, was just completely traumatized by it because had no choice. Like it was happened too fast, and there was nothing the truck driver could do about it. So just so think about that, that the mom would have the wherewithal after something like that happened to her daughters, uh, instead of getting into a fetal position for the rest of her life, to go out and say, I want to fight to protect other people. So if I was ever tired when we were working on this, and I would remember Callie, I would get up and go fight some more because no stronger, I don't know anybody as a stronger human being than Callie. But so it was the three of us, Callie Howe, a woman named Rosemary Shane and myself. We were it. I have to give Senator Chuck Schumer credit. Senator Schumer, who was the leader of the Democrats back then as well, saw a notice of this in the newspaper and said, Well, this should be a federal law. It should be illegal, not only in California, to rent a, you know, a car that's under a safety recall, but it should be a federal law. And so Senator Schumer contacted Rosemary Shane and said, I see you're doing this in California. I want to do it in Congress. Rosemary's an old friend of mine. She called me, because I'm based in Washington and said, Do you want to work on this with us? We're going to get a federal bill passed. And I said, of course. The first thing that would happen in every single lobby meeting for this bill was the staffer would say, I can't believe it's legal to rent a car under a safety recall. I mean, that's everybody's reaction is, of course, this should be illegal. It's hard to believe it's legal. And so that kind of gave us a little bit of a false sense that this wasn't going to be that hard because we had Chuck Schumer. He ran the Democrats in the Senate. He wanted to do it. We had a lot of sympathetic meetings on Capitol Hill. And lo and behold, the rental car industry came out against us, which really was hard to believe. Because wouldn't they want to prevent what happened? Rental recalls are recalls. Cars. It's free to get them fixed. But they did. And we were very like we were a tiny little army. We had a very strong story to tell. That was our strongest asset was that story that was took all the oxygen out of a room when you tell it. And when the mom tells it, forget about it. We I had plenty of meetings where staffers were burst into kick tears. And it's just very, it's such a compelling story. And yet, and yet, the rental car industry was against us. And we figured out that we weren't going to be able to get this passed with the industry opposing us in that way. And that's where we put our heads together and figured out how we were going to fix this. And what happened is that a member of Congress, and I can't remember who it was right now, might have been Senator Barbara Boxer, sent a series of letters to the leading rental car companies to ask them what is your policy when you have a recall, recalled cars in your fleets? Because as just as a baseline, like what do you do? Do you throw them out, throw the notice away? Do you ever get them fixed? Like, what are your policies? Hertz, which was wasn't number one at that time, but it was, you know, a big rental car company. Hertz's response was, we get them fixed. So the other ones were, we determine for ourselves how dangerous the defect is. If we don't think it's so dangerous, then we get them done in stages, whatever. Like it was those kinds of answers. Hertz's answer was we segregate them out from our fleet and we get them fixed. So we read that. And coincidentally, I knew personally the lobbyist who worked for Hertz, and I called him up and I said, Look, your company is doing the right thing anyway. Well, just support the bill, right? You're doing it anyway. And you why wouldn't you want your competitors to do it because you lose money? They should you know be in the same situation. Hertz decided to support the bill. Barbara Boxer did a press conference saying, Well, I don't know. If I'm renting a car, I'm gonna rent it from Hertz. And I think I would recommend to the public that you're gonna get a safer car if you read from Hertz. And that went out on CNN. We did a petition, we did a bunch of other things. But it was the breaking one, pulling one company off and then publicizing that. They then came on one by one by one until the entire industry not only supported the bill, but they all put lobbyists on the effort with us. And we lobbied together for the bill. PS, it was still hard to get through because the manufacturers and the auto dealers opposed us, which is a little bit insane, and I'll still never really understand it to this day. But their opposition was not so strong because they have a lot of other issues that are more important to them. So that was easier to overcome than the rental car industry when they were opposing us. This was the only game in town for them. So they were going to put everything to oppose us. Once we had the industry, so it wasn't easy, but we were able to get the bill passed. But it was myself and my two colleagues, the three of us came up with that strategy very intentionally, and it worked.

SPEAKER_01 25:35

You had such a strong coalition. It couldn't match the amount of people, the budget of the rental car industry, of car manufacturers, but your coalition was so strong, you had a very powerful story, and you were able to have one of the major players hurt and peel them off, like you said. And that was what ultimately helped you to seal the deal. I'm sure there are plenty of listeners, younger listeners, Pam, who look up to your career and want to be like you. What are the lessons you've learned over the years that you would want to tell them?

SPEAKER_00 26:11

Find something that you love to do and then try to do it as a career. It's so much more fun to get up every day. I mean, most of us have to work, right? It's so much more fun to work things that you believe in and that you enjoy with other people who similarly believe in it and are enjoying their job. And I am coming to the end of my career. I've been a lawyer for more than 40 years. So it's been a long time. And I still love it. Like I still enjoy the work that I do. I'm still enthusiastic about it. I still care about it very, very much. I'm still proud when things go well and I work as a team and we get something done. I really think that it's not an easy thing, actually, sometimes to find out what it is that you like to do that actually can make money. Because sure, we all find things. I like to go see music. I like to play sports. Like there's a lot of things we all like to do. But if you can find something that is a career in some way, that you also, there are things about it that you love. Doesn't mean you love every minute of every day, but that in globally you enjoy it. What I wish people would understand is that you might not be able to do exactly what you, you know, like the job exactly as you would describe it. But don't give up if there's something that you love to do. If you work hard at it, you show up, you show enthusiasm, and really have a passion for something, you're gonna get a job, you're gonna be able to do that. Because as an employer, I know there aren't that many the folks who show spark, and my husband used to call it heart, they stand out. And what I find sad are people who give up, you know, like try to pursue something and they give up prematurely, I feel, and end up settling and taking jobs or building careers that they're either not proud of or they just don't enjoy. So I really do think that it's enjoying what we do every day. We certainly work a lot of hours. No matter what you do, it's a lot of hours. And so you should join enjoy it.

SPEAKER_01 28:23

Pam, you are a hall of famer within the antitrust world. You're the chair of the American Antitrust Institute. You were, of course, instrumental with the latest version of the antitrust penalty enhancement and reform act. Talk about your career, which as a consumer advocate naturally includes so much experience within the antitrust world as well.

SPEAKER_00 28:50

So I kind of came to antitrust, I'd say, in like the latter half of my career, but it was a natural progression from working to protect consumers against companies and large companies that harm them in many ways, sometimes physically, sometimes financially, that almost coinciding with my career was this consolidation of industries in America. And our antitrust laws were just not adequately enforced, really, for the last 40 to 50 years until very recently. And so we allowed the healthcare industry, our media and entertainment industries, the airline industry, the tech, for sure, the tech industry. We just allowed in each of those areas, which are all very, very important, we allowed companies to just continue to merge and buy each other to a point where competition has almost disappeared. And our entire capitalist economic system is based on competition. That's the whole point of it, is that we're gonna have companies competing with each other. Uh, you can get higher quality, lower priced goods. And similarly in the labor field as well, that employees should have options. They shouldn't just have one company in town and they have to work for that company because of course you don't have to be an antitrust scholar to realize if there's just one store or one company, they can charge you whatever they want and they can sell you whatever they want and they can give you whatever kind of service. But if you can go to that store and say, well, there's a store down the street, I'm gonna go to them because your prices are too high or quality is bad, or as a worker, your wages are too low. That's the whole engine of our economy and it's the engine of innovation. And what we have allowed in the United States, we have allowed competition to kind of disappear in entire industries. And again, these are industries that are extremely important to our lives, right? To our access to healthcare, access to technology and the internet. There's this massive consolidation. And some of these companies become kind of like too big to regulate, too big to sue, too big to control. So it's just not good for anybody when we have that hyper consolidation and we lose the ability to have choice in the marketplace. And so luckily, there is a growing anti-monopoly movement, and I'm part of this, that is fighting against that. And antitrust enforcement really became much more aggressive in the Biden administration. The Trump administration had a good start to its antitrust enforcement. It we are seeing some bad signs now, some negative signs, so it doesn't look quite as promising as it did. But there is a growing recognition in America that companies, when companies get too big and there's no competition, that it's bad for everybody. And so we're we're getting some more, some more successes. And one other thing I want to mention one of the promising trends that are happening in antitrust and in consumer protection are states are stepping into a void that we're kind of seeing uh federally. And so that's very positive. State attorneys general are bringing many lawsuits and enforcement actions. State legislatures are passing laws that governors are signing that are addressing a lot of these issues and kind of stepping in where some parts of the federal government have stepped away now. So we have a lot of good activity in the antitrust/slash anti-monopoly world that's very promising, but also badly needed.

SPEAKER_01 32:51

State's attorneys general doing crucial work. Pam, one of my recent guests, we talked about this idea for a class called What They Don't Teach You in Law School. You would teach law students all the things you learn in practice or with your lobbying work or whatever it might be that you just don't get taught at really any law school in the world. What would you teach in that class?

SPEAKER_00 33:13

I would teach what I've worked on for so many years, and it is taught from time to time because I know professors who teach this, but there has been a corporate-led effort for really 40 to 50 years to shut the courthouse doors to regular people, to regular people who've been injured or harmed by some corporate misbehavior or government, government misbehavior. And we still have really the strongest legal system in the world that enables people to use it, even when they, you know, like an individual can sue the biggest companies in America. Through our legal system, we have something called contingency fees where you don't have to pay your lawyer unless you win. And then you get money from the defendant, and then you can pay your lawyer through that money. But if you litigate for 10 years and you lose at the end of the litigation, you don't have to pay your lawyers anything. And that is a hallmark of our system. And it really is what enables regular folks to have their day in court and to have a relatively level playing field when you get into a court of law before a jury of your peers who can't. They don't take campaign contributions, they don't have political parts, it's not about political parties, and you just have a much fairer shot in that venue. And corporate America figured that out, and they have been trying for decades to close those doors. I and many colleagues fight against that every day. But I would want that to be taught. So it's sort of part of our legal system that no one really talks about until you get out, and then you have to and you live it.

SPEAKER_01 34:59

Pam, it's been a pleasure speaking with you. And my hope is that this will be very inspiring to many young lawyers who look up to you and will be something that they can listen to and learn and then go out and do great things in the world.

SPEAKER_00 35:14

Thank you, Alex. That's very, very nice of you to say. This was fun. It was really fun talking to you.