“A Person Would Have to Eat More Than 3,400 Rubber Ducks”
The rising dependency of the United States on oil imports from the Gulf of Guinea did not only result from Americans’ unusually high per capita guzzling of gasoline and diesel. About a quarter of American oil imports were taken up for industrial uses. The manufacture of commercial chemicals from oil and natural gas “feed stocks” accounted for a large proportion of this industrial use.
ExxonMobil Chemical, headquartered in Houston, made up the third of the corporation’s major divisions, alongside upstream (oil and gas exploration and production) and downstream (refining and fuels marketing—the gasoline station companies). In 2007, the chemical division accounted for about 10 percent of ExxonMobil’s record $40.6 billion in profits. Upstream dwarfed chemical, and the latter’s executives often labored in the shadows of their oil brethren. Yet if ExxonMobil Chemical had been a stand-alone corporation that year, it would have been among the fifty most profitable companies in the United States. In many of its business lines the division quietly held the first or second market position in the world.
The early-twenty-first-century politics of global oil and gas production turned on security, nationalism, climate change, and taxation. The politics of the chemical industry were distinct. They drew ExxonMobil’s management and lobbying teams into legislative and regulatory debates about how best to manage the risks to human health posed by the use of industrial, agricultural, and household chemicals. Ken Cohen, the public affairs chief, had forged his career as an attorney in ExxonMobil Chemical. The communications and political strategies he developed for the entire corporation after 2000 reflected, in part, the science-debating, my-study-versus-your-study ethos of chemical regulation in Washington and Brussels, the headquarters of the European Union.
Since the 1970s, ExxonMobil Chemical and its brethren in the industry’s principal U.S. lobbying arm, the American Chemistry Council, had won more regulatory battles in America than in Europe. As with climate change, chemical industry lobbyists feared and fought the migration of European regulatory philosophies across the Atlantic. And, after 2000, the regulatory issues that mattered most to ExxonMobil increasingly drew the corporation into a war of ideas about risk.
Some scientists and scholars advocated a “risk analysis” model to evaluate the dangers of chemicals. This relied on mathematical calculations about the probability that a certain use of chemicals might hurt people. The chemical industry favored this approach because it effectively placed the burden of scientific proof on those who wanted to stop a chemical’s sale. Even where scientists might establish some risk to human health, that measure of risk could then be weighed against the benefits of the product. ExxonMobil and other opponents of greenhouse gas regulation had used risk analysis frameworks to strengthen their arguments in opposition to the Kyoto Protocol’s goals. The corporation’s allies in academia demanded that environmentalists “prove” cause and effect in climate-change science beyond a reasonable doubt, and even then, after 2006, when ExxonMobil finally conceded that human activity might be contributing to global warming, the corporation still resisted specific restrictions on carbon use on the grounds that the economic costs outweighed the environmental benefits. This was the burden of proof demanded by some advocates of risk analysis: First, prove the harm; then, if the harm is established, prove that the cost-benefit equation of proposed regulation is well balanced. ExxonMobil applied the same lobbying strategy to proposed regulation of its manufactured chemicals.
After 2000, a new idea arrived from Europe to challenge the assumptions of the risk analysis school: the precautionary principle. The idea can be traced to West German environmental regulations enacted during the 1970s on the basis of Vorsorge, or “precaution.” Advocates of the precautionary principle argued that in cases where damage to society or people might be severe and irreversible, preventive action should be taken up front, even if there were important uncertainties about the relevant science. Although “it sounds like common sense . . . in fact, the precautionary principle poses a radical challenge to business as usual in a modern, capitalist, technological civilization,” author Michael Pollan has noted. Under the principles of risk analysis, industry lobbyists could often overcome objections by environmentalists or food safety advocates “until someone finds the smoking gun,” Pollan continued. The precautionary principle reversed the burden of proof and sought to address the problem of traditional regulation, namely “that long before the science does come in, the harm has already been done. And once a technology has entered the marketplace, the burden of bringing in that science typically falls on the public rather than on the companies selling it.”
To combat climate regulation, ExxonMobil had hired a pair of in-house astrophysicists to present scientific analysis. Yet ExxonMobil was not in the business of meteorological science. It did not operate satellites or sensing stations to measure glaciers or sea ice. The corporation’s capacity and credibility as a participant in scientific argument about global weather proved, therefore, to be finite—ExxonMobil was obviously self-interested in pressing its arguments, yet its claims to expertise were at best limited.
As the corporation fought the rise of the precautionary principle in chemical industry regulation, however, its position was more favorable. ExxonMobil employed scores of chemists; it was on the front lines. At ExxonMobil Biomedical Sciences in New Jersey, a research-driven division of the company, the corporation had constructed laboratories that could conduct rat studies about the health effects of commercial chemicals. The lobbyists the corporation flew in to Washington to work on ExxonMobil Chemical’s regulatory issues—Laura Keller, a senior issues adviser on chemical regulation, and Leslie Hushka, another registered lobbyist—were scientists who published in peer-reviewed journals; behind them stood dozens of other ExxonMobil scientists as well.
The ExxonMobil scientist-lobbyists engaged not only in debates about specific research and regulation, but also attended academic and regulatory conferences that reviewed the competing, overarching philosophies of risk management. ExxonMobil joined other corporations in funding the Harvard Center for Risk Analysis at Harvard’s School of Public Health; the center “focused broadly on developing risk, economic, and decision analysis methods that are well-grounded in the natural and social sciences.” ExxonMobil’s lobbyists derived from Harvard’s work insights for their own Washington arguments.
The corporation’s chemical division lobbyists urged federal regulators to adopt a “Hazard Index” approach to regulatory evaluation because it was a “defined, transparent methodology” that could draw upon mathematical analysis, as one of the corporation’s PowerPoint packages put it.
Paul Thacker, a congressional investigator for a Republican senator who looked into the corporate uses of science to shape law and regulation, concluded that “the whole field of risk analysis has been compromised by the companies. . . . Risk analysis is like an op-ed,” that is, just another form of argument, not a reliable or objective science in and of itself, as its proponents often suggested. Yet ExxonMobil’s lobbyists often enjoyed a much better command of facts about proposed bills or regulations than the generalist, harried congressional aides who worked on legislation.
By early 2008, the regulatory battle in which ExxonMobil Chemical’s lobbyists were most heavily engaged was an unusual one. It concerned the corporation’s defense of rubber ducks.
Phthalates are a man-made group of chemicals that were first introduced during the 1920s. Their use spread after they were added to polyvinyl chloride, a popular plastic, to make the vinyl softer and more flexible. Exxon Chemical’s phthalates business grew during the 1970s. A market opportunity arose when another class of chemicals sometimes used to soften plastics, polychlorinated biphenyls, or PCBs, were banned by Congress because of evidence that they were toxic to humans.
As American and European households used more and more plastics, phthalates became commonplace. They could be found in flooring, electrical wire casing, garden hoses, car seats, medical tubes, tape, pool liners, shoes, and cosmetics. Of particular concern was the presence of some phthalates in children’s toys. The plasticizer used most commonly in vinyl toys was called diisononyl phthalate, referred to as DINP. ExxonMobil Chemical described itself as one of the world’s leading makers of plasticizer chemicals, and in that role it had become one of the world’s leading manufacturers of DINP. ExxonMobil did not make toys, but it sold its softening chemicals to worldwide companies that made vinyl balls, ducks, dolls, and bendable superhero action figures. (The bathtub ducks at issue were referred to colloquially as “rubber ducks,” but they were not actually made from rubber; they were made from vinyl softened with DINP.)
Scientific knowledge about a particular chemical’s potential to harm people can be derived from a number of sources. Scientists may be able to infer the likely toxic properties of a chemical on the basis of detailed studies of other, similar compounds. In addition or separately, laboratory tests on rats or other animals may provide insight into whether a chemical may be carcinogenic or otherwise harmful. Another form of study is to track the effects of actual human exposure to a chemical over a long period of time. Such studies offer the promise of high accuracy, but are by their nature slow and expensive.
In the case of DINP, by the early 2000s, a number of scientific and animal studies had been conducted about its possible impact on human health, but there were no long-term human studies. The Centers for Disease Control and Prevention had discovered one striking fact by randomly examining humans—about three out of four people tested had some phthalates in their systems. The chemicals had become so ubiquitous in household and consumer products that they had become, in effect, a part of the human ecosystem; if it turned out that they were unsafe, it would be a real concern.
On DINP in particular, the findings of animal studies, including one rat study carried out by ExxonMobil scientists at their own laboratory in New Jersey, were not particularly alarming, but the results were in some respects ambiguous, and their implications were disputed. Male rats exposed to phthalates in utero later exhibited abnormalities in their reproductive organs; this led some researchers to conclude that phthalates could interfere with testosterone. Some researchers and nongovernmental health lobbyists, such as those at the Breast Cancer Fund, feared that DINP might interfere with the development of reproductive organs if very young children were exposed as their bodies developed.
In 1998, public interest health groups filed a petition at the Consumer Product Safety Commission demanding that it ban DINP in children’s toys and issue a national advisory about the threat to child health. The commission opened a review. Its staff scientists concluded initially that regulation of phthalates was “worthy of additional future consideration” because of the way DINP seemed to act on human development, but that “more studies are needed.” The commission next convened a study known in Washington-speak as a C.H.A.P. (Chronic Hazard Advisory Panel). The panel acknowledged concerns about the genetic or reproductive effects of massive DINP exposure, but concluded that the actual exposure children might experience was so low as to be of negligible risk. The full commission voted in 2002 to deny the petition to ban DINP from toys.
Throughout the commission’s review, ExxonMobil scientists and lobbyists argued that DINP was safe enough to be used because the dangerous dosages seen in the rat studies were much, much higher than those that would realistically be encountered by children. The only way young children would be likely to absorb DINP through toys would be by mouthing, teething on, or swallowing the toys. (Baby bottle nipples and teething rings typically were made from rubber or latex, because those materials provided a more natural feel; they generally contained no phthalates.) To follow up on this issue, after the pro-DINP vote, Consumer Product Safety Commission scientists sponsored an observational study in which they watched babies and toddlers handle rubber ducks and other toys to see just how often they stuck the toys in their mouths; they reaffirmed the commission’s earlier finding that even the most oral children would not be at risk.
“A person would have to eat more than 3,400 rubber ducks made with DINP over their lifetime to exceed safe DINP exposure limits,” PowerPoint slides left behind on Capitol Hill by ExxonMobil lobbyists declared. “If you took water and saturated it with DINP, an infant would have to drink more than 41,500 gallons to exceed safe DINP exposure limits.”
Given the lack of definitive human studies, phthalate regulation presented a test case pitting those—such as the authors of ExxonMobil’s PowerPoint slides—who favored traditional risk analysis philosophies against those who favored the precautionary principle. Of course, even advocates of the latter had to make judgments about how much risk from a particular chemical was severe and irreversible enough to demand costly government action. In the case of phthalates, the issue was complicated by the fact that some versions of the compounds—those with low molecular weight—clearly were dangerous to human health, whereas the evidence about DINP, which had a high molecular weight, was more favorable. It required a knowledgeable and careful regulator or congressperson to hold in mind the distinctions among different phthalates.
In Europe, the precautionary principle won out. Although a European Chemicals Bureau study found that “no risk reduction” was required for DINP, in 2005, the European Union nonetheless banned the compound from children’s toys that could be placed in the mouth. “Politics, not science, is the reason,” the ExxonMobil PowerPoint slides circulated in Washington complained. “Politics,” however, was in fact a synonym for the rise of the precautionary principle as a popularly supported basis of chemical regulation in Europe—and there was little reason to believe that philosophy would remain sequestered there.
American environmental and public interest health groups had discovered that it was easiest to import European regulations inspired by the precautionary principle into the United States by starting first in the legislatures of more liberal states—California and Vermont, for example. The City of San Francisco formally adopted the precautionary principle as a framework for local regulations in 2003. The city’s environmental regulators “discovered Europe has banned chemicals that the U.S. had not,” a city environmental regulator recalled. “We said, ‘If other governments have taken precautionary actions, then we can take that action as well.’” San Francisco adopted a phthalate ban that “precisely mirrored” the European ban.
Legislators in the state capital of Sacramento promptly introduced proposals for a statewide phthalate ban. The Breast Cancer Fund, the Public Interest Research Group, the Natural Resources Defense Council, and other public interest health lobbies jumped in. Scientists and advocates at these groups had followed the phthalate issue since their failed effort to win a DINP ban at the Consumer Product Safety Commission during the late Clinton administration. The phthalate issue offered “a way to highlight the broken chemicals policy system that we have—to get people to pay attention to it because it’s toys, it’s things babies are putting into their mouths,” recalled Gretchen Lee Salter, a policy manager at the Breast Cancer Fund. California legislators, urged on by public interest advocates like Salter, enacted the European Union standard in 2007. Minnesota, Connecticut, and Vermont legislators moved to do the same.
ExxonMobil became alarmed enough to start lobbying directly in state capitals. “The one lobbyist we did hear from” was from ExxonMobil, recalled Virginia Lyons, a biologist and legislator who sponsored Vermont’s ban. ExxonMobil’s local advocate “stirred up the fishing and hunting community by saying if phthalates were banned in the state of Vermont, then fishing would be affected” because lures were made of soft plastics. In fact, the Vermont bill did not address fishing lures at all, only toys. Lyons finally outflanked the ExxonMobil lobby by adding to the final version of the bill a line declaring that nothing in the new law “should be construed to regulate firearms . . . hunting or fishing equipment.” In Hartford, Connecticut, chemical industry lobbyists walked through the statehouse with Gumby toys in their pockets. They would grab a lawmaker, pull out the toy, and declare ominously, “They’re going to ban Gumby!”
The wave of phthalate regulation at last rolled into Washington in 2008. Breast Cancer Fund lobbyists briefed U.S. senator Dianne Feinstein about the issue, noting the San Francisco ban already enacted and the similar bill passed by the California legislature, which awaited action by Governor Arnold Schwarzenegger. Senator Feinstein saw an opening to advance the cause in Congress.
She owed that opportunity to unscrupulous toy makers in China. In 2007, Mattel, Inc., had recalled 967,000 toys—an Elmo Tub Sub, a Dora the Explorer backpack, and Giggle Gabbers shaped like Sesame Street’s Cookie Monster and Elmo, among them—because the toys contained lead paint. China increasingly was the source of the toys America’s children played with. The Mattel recall was just one in a series of revelations about the shoddy quality of some Chinese toy manufacturing. China bashing and child safety being two of the less controversial subjects in American politics, federal lawmakers scrambled to introduce bills that would tighten standards for the toys that American children enjoyed. As a Senate version of this toy safety bill glided toward passage early in 2008, California’s two senators, Feinstein and Barbara Boxer, slipped in a floor amendment that incorporated a version of the European Union’s phthalate regulation—one that would prevent American children from putting DINP-laden vinyl ducks into their mouths. The bill passed easily. It is not clear whether ExxonMobil’s Washington office even understood what had happened until it was too late.
The U.S. House of Representatives, now controlled by Democrats, also passed a companion toy safety bill. (It became known as the Consumer Product Safety Improvement Act of 2008.) The House version, however, did not address the phthalates question at all. The matter would be decided in a conference committee organized to reconcile the two bills for final passage. President Bush was unlikely to veto legislation designed to keep American children safe from faulty Chinese toys, so by the spring of 2008, it seemed clear that a final law would indeed be written, passed by both houses of Congress, and signed by the president. The question that mattered to ExxonMobil Chemical was whether that bill would ban DINP from toys.
ExxonMobil and public health lobbyists had been battling one another inconclusively over phthalates for a decade. The corporation’s scientists had prevailed in the technocratic, relatively closed forum of the Consumer Product Safety Commission. Congress was a different venue, one that favored the public interest groups. Anticipating an intense summer of lobbying and a public relations struggle, the advocates at the Washington, D.C., offices of the Public Interest Research Group reached deep into their bag of advocacy tricks. They manufactured a twenty-five-foot-high inflatable rubber duck; they then carted the giant duck to Capitol Hill, to call attention to their sign-waving street demonstrations in favor of a DINP ban. In addition to the big duck, ExxonMobil’s interest in the legislation was identified early on as an element of the public interest group’s lobbying strategy. Noted Liz Hitchcock, one of the campaigners, “They’re the perfect villain.”
Joe Barton, the Republican congressman who represented Texas’s Sixth District, which lay just to the south of Dallas, bore a resemblance to Rex Tillerson, both in appearance and by his biography. Barton had been born in Waco, Texas, in 1949, three years before Tillerson’s birth in Wichita Falls, two hundred miles away. Now in his late fifties, Barton combed his full head of silver hair in a style similar to that favored by ExxonMobil’s leader; his face was similarly fleshy but fit looking. Barton’s political creed had been derived from the same rural ethos that had shaped Tillerson’s rise—a synthesis of Christianity, small-town values, and faith in free markets. A sign in Joe Barton’s Capitol Hill office reads “Trust God; Tell the truth; Make a profit.”
Barton had studied industrial engineering at Texas A&M University on a scholarship, then earned a master’s degree in industrial administration from Purdue University. He worked in business for a decade and served as a consultant on gas deregulation issues for Atlantic Richfield Company, the large oil and gas company eventually absorbed by BP. By 1984, Barton was “an earnest man of thirty-five who had a strong desire to go to Congress and negligible prospects of getting there,” as Mark Halperin and John F. Harris later wrote in their book, The Way to Win. But Joe Barton then made an excellent decision: He hired an Austin political consultant named Karl Rove to handle his direct mail as he challenged a better-known and better-funded opponent, Max Hoyt, in the Texas Sixth’s Republican primary. Rove crafted mailers touting Barton as a “Proven Cost Cutter” who was “Educated to Lead” and had “Roots in Texas.” He won—and after Barton reached Washington, he stayed.
Barton rose to chair the powerful House Energy and Commerce Committee, which had long been the domain of Democratic representative John Dingell, of Michigan. Barton and Dingell swapped gavels as Republicans and Democrats traded control of the House. Barton fashioned a reputation as the leading expert on oil and gas issues in the House Republican caucus—he was a passionate believer in markets, but occasionally, too, a deal maker who could find legislative compromises with Dingell, who fiercely protected in Congress the interests of automakers and other industrial corporations in Michigan.
Barton’s relationship with ExxonMobil was strong. In the years after the Mobil merger, Barton received more money from the ExxonMobil Political Action Committee than any other member of Congress—a total of $46,399. In general, ExxonMobil’s K Street crew appreciated the Texas congressman’s pro-market philosophy. In 2005, however, Barton had been infuriated when Lee Raymond and Dan Nelson, the ExxonMobil Washington office chief, declined to support a deal Barton had proposed to Dingell and other lawmakers to pass comprehensive energy legislation of the sort originally contemplated by Vice President Cheney’s energy task force, but which had proved politically elusive during the first Bush term. One element of the 2005 deal was a prospective agreement by Congress to absolve oil companies from certain legal liabilities arising from spills of gasoline containing MTBE. (The deal was proposed just a year before ExxonMobil’s disastrous spill of MTBE-laden gasoline at its gas station in Jacksonville, Maryland.) In exchange for legal protection, ExxonMobil and other oil companies would contribute to a $4 billion fund to pay nationwide MTBE cleanup costs. Barton thought he was close to an agreement to ensure payments to the fund, but Chevron, ExxonMobil, and the American Petroleum Institute balked. On the decisive weekend of negotiations, ExxonMobil’s representatives, led by Dan Nelson, declared that the bill was just too much of a Washington mess for the corporation to support. Lobbyists for the major oil companies later said they had warned Barton that they would not pay more than $1.5 billion into the proposed cleanup fund. In any event, Barton was unhappy. He pulled all provisions for MTBE protections from the final bill and later issued a public letter protesting Lee Raymond’s retirement package: “While we respect the right of corporations in America to set compensation packages as they see fit, it is hard to understand how, in light of most Americans paying nearly $3.00 per gallon at the pump, your board of directors can justify such an exorbitant payout.”
In 2008, as the lobbying fight over DINP and rubber ducks loomed, ExxonMobil needed Joe Barton again. Whether the final toy safety bill contained a Europe-inspired phthalate ban was a question that would now fall to Dingell and Barton. In 2007, after Democrats retook majority control of the House of Representatives, Dingell had ascended again to chair the Energy and Commerce Committee; Barton had returned to the role of ranking member, the committee’s senior Republican. Because of the toy legislation’s subject matter, members of the House Energy and Commerce Committee would staff the conference to determine the bill’s final compromises. In theory, Dingell could go his own way, without including Barton, and then try to rely on the Democratic majority in the House to approve the final bill. But once the conference opened in June 2008, Dingell insisted that Barton sign off on the phthalate issue, whatever the final compromise turned out to be. Dingell was an old-school legislator who believed in forging agreements that made nobody happy and preferred when possible to work across the aisle. Also, ExxonMobil had supported Dingell over the years with steady campaign contributions. The corporation lobbied him and Barton simultaneously on the phthalate question. In any event, it would be better for Dingell if he had Barton’s political cover on any final decision that favored ExxonMobil.
The Senate bill’s phthalate provisions had effectively been written by two California liberals, importing European regulations. Dingell told his staff as the talks began that he would go along with whatever compromise Barton endorsed—but they had to keep the Texas Republican on board or there would be no deal. Barton, for his part, announced through his staff that he was simply not prepared to accept a ban on DINP in children’s toys in any form.
“You’re going to have to roll me,” Barton told Dingell at one bicameral meeting.
“My friend,” Dingell replied, “I don’t want to have to do that.”
The stalemate took hold as summer descended—it was the capital’s humid swamp season. ExxonMobil’s Washington lobbying crew moved through Capitol Hill, seeking out the conferees and their staff. One Democratic lawyer on the staff of an Energy and Commerce member recalled “six old white guys in gray suits” who came to her office to hand out PowerPoints about phthalates. The essence of their presentation was, “DINP is not dangerous,” she recalled, and that “they didn’t want DINP singled out.” The ExxonMobil lobbyists carried props designed to win the attention of young Capitol Hill staffers: iPod earbuds, which were made of materials softened by DINP. The message was that “phthalates are not harmful,” recalled Valerie Baron, an Energy and Commerce Committee staffer who heard the briefings, “and they’re in so many things, what would we even do without them? What would you do without your iPod headphones?”
The Senate bill banned six phthalates outright, but “DINP was the one that was most in play” during the conference negotiations, recalled a staffer involved in trying to write a final agreement. ExxonMobil’s strategy focused heavily on presenting the history of scientific studies and risk analysis of phthalates, to emphasize that the evidence about DINP was far from definitive.
The conference unfolded as a series of hours-long meetings among staff in various congressional committee rooms; the group alternated among committee rooms in the House office buildings, along Independence Avenue; the Senate office buildings to the north of the Capitol; and inside the Capitol itself. “The way we got started was literally putting the two bills—the House bill and the Senate bill—side by side on the table and trying to marry the two together, paragraph by paragraph, section number by section number,” a participant recalled. On the phthalates paragraphs, however, “Barton’s orders to his staff were clearly not to budge.”
The consumer groups hauled out their big duck. “We actually stood outside on the steps, lobbying the old-fashioned way,” flanked by the twenty-five-foot inflatable, Liz Hitchcock recalled. “Our strategy was to keep saying, ‘Will Congress listen to Exxon or America’s kids?’. . . The more we could say that, the more we could keep talking about Exxon, the better.”
Some of the consumer advocates criticized Joe Barton publicly for having accepted ExxonMobil campaign contributions in the past. That angered Dingell. “He didn’t like the conduct from some of the consumer groups,” a staffer involved said, particularly the “effort to demonize the other side—that was unhelpful.” Dingell had been on the receiving end of similar attacks in the past and hadn’t appreciated them. Barton and his staff dug in deeper.
The conference convened a “stakeholders meeting” on phthalates in a congressional hearing room—a semiformal session where consumer advocates and representatives from ExxonMobil, the American Chemistry Council, and the Consumer Product Safety Commission could all make their arguments in front of the key staffers negotiating the final bill.
The ExxonMobil scientists who specialized in phthalate lobbying turned up to represent the corporation. The congressional staff sat in committee member chairs, like judges. The industry scientists and the consumer group scientists and advocates took their places in the audience—on opposite sides. The setting felt “like one of those Saturday Night Live point-counterpoint debates,” Janet Nudelman of the Breast Cancer Fund recalled.
“Pretty much every developed nation in the world has banned phthalates from kids’ toys,” Nudelman told the meeting. “But Congress is still debating.” It was time to act, she said.
Somebody presented a Gumby doll as an exhibit. Shannon Weinberg, Joe Barton’s lead staffer on the issue, remarked, according to a participant, “If I were a mother, I’d never let my kids play with a Gumby.” It was not obvious what the legislative implications of her comment were. Vinyl ducks made with DINP and ducks made without DINP were placed side by side and fondled; some staffers felt they could not tell much difference between the two kinds, despite being told by ExxonMobil lobbyists that DINP-less toys might be so hard and inflexible that they could pose a choking hazard.
ExxonMobil’s scientists argued again that the amount of DINP in children’s toys was so negligible as to pose no realistic hazard. “Any time there was a discussion,” the conference participant remembered, “it always went back to, ‘You’d have to eat five hundred thousand rubber ducks to have an impact’” (an exaggeration of the 3,400 ducks in the written materials). “It just reverted back to the . . . ducks. That’s when the chaos started.”
In the end, the stakeholders meeting allowed all sides to be heard, but it did not precipitate a compromise. The stalemate dragged into July. The overall toy bill was popular among members and senators in both parties—it would set new standards for testing toys, and it would improve the quality of imported toys, defending America’s toddlers from unscrupulous Chinese factory managers. It would be frustrating, conference staff felt, if the broader law failed to pass only because of the phthalates lobbying stalemate.
Later, several competing versions arose about how the final compromise originated. In any event, it was Solomonic: Three of the more obviously dangerous phthalates, out of the six outlawed in the Senate version, would be banned outright. DINP would be banned from children’s toys and teethers in the United States—at least for now. To salve ExxonMobil’s wounds, however, the bill would order the Consumer Product Safety Commission to convene another Chronic Hazard Advisory Panel to examine health effects from the full range of products and consider the “cumulative effect of total exposure to all phthalates in children’s products.” If the C.H.A.P. reached conclusions about DINP similar to those of a decade earlier, ExxonMobil’s position might ultimately prevail and the temporary ban on DINP use in toys would be lifted. For the time being, however, newly manufactured vinyl ducks and other toys that might be mouthed by American children would be free of DINP. What mattered most about this compromise proposal was that Dingell was enthusiastic. He and his staff pressed it upon Barton; after some hesitation, Barton accepted.
President Bush signed the Consumer Product Safety Improvement Act into law on August 14, 2008. Its final provisions on phthalates could not be described as a triumph for ExxonMobil—the consumer lobbyists had gotten more of what they wanted than the corporation. Yet Joe Barton had hung in there and had won significant concessions. ExxonMobil had a long record of persuading the Consumer Product Safety Commission to see phthalate regulation its way, and now the future of DINP manufacturing would be back before the commission, with ExxonMobil’s lobbyists once again involved in a detailed review of phthalate science and risk management.
The corporation apparently decided that Joe Barton deserved to be rewarded for his summer of stubbornness. In the world of political campaign contributions, there is a technique referred to as “bundling,” by which employees of the same company, law firm, or other organized group simultaneously make contributions to the same political candidate, to create a booster effect with their money injection. The tactic is legal if the employees act voluntarily, without coercion. Within two weeks after Bush signed the final toy bill, nineteen high-ranking ExxonMobil executives began to make campaign contributions to the Congressman Joe Barton Committee, according to the dates recorded for public filing by Barton’s committee.
On August 25, 2008, Mark Albers, of the upstream division, donated $350; Walter Buchholtz, the longtime lobbyist for ExxonMobil Chemical, donated $350; William Colton, the leader of Irving’s Strategic Planning exercises, gave $350; Michael Dolan, another vice president, gave $350; Donald Humphreys gave $750; Richard Kruger gave $350; Stephen Simon, the leader of ExxonMobil’s downstream businesses, gave $350; Sherri Stuewer, ExxonMobil’s leading executive on climate change and environmental issues, gave $350; Andrew Swiger gave $500; and Theodore Wojnar, a general manager at ExxonMobil Chemical, gave $350.
About a week later, on September 2, 2008, ExxonMobil chairman and chief executive Rex Tillerson led a second wave of giving to the Barton committee, with a donation of $1,500; Sara Tays, a public affairs executive, gave $350; Stephen Pryor, the president of ExxonMobil Chemical, gave $350; Henry Hubble, in charge of the corporation’s Wall Street relations, gave $350; and Ken Cohen gave $500. Jeanne Mitchell, ExxonMobil’s lobbyist in the House of Representatives, soon gave another $1,000. When the recorded contributions stopped on October 2, about six weeks after the toy safety bill’s passage, Barton had received $10,150.
The sum might not be grandiose, but it did suggest a message: We take care of our friends.
“ExxonMobil does not collect, report, monitor, or track individual employees’ personal political contributions,” Alan Jeffers, a spokesman for the corporation, said in a statement prepared in response to inquiries about these donations. “ExxonMobil does not bundle contributions or in any way illegally facilitate the making of federal campaign contributions. . . . At the time you reference, Rep. Barton had been chairman of the U.S. House Energy and Commerce Committee and later minority ranking member of the committee, which placed him at the center of many policy issues affecting U.S. business and industry. It is incorrect and misleading to allege that legal donations by individual ExxonMobil employees were in any way tied to a single vote on a single issue among the many that Rep. Barton would have been involved with at the time.”
Public records collated by the Center for Responsive Politics suggest that ExxonMobil took an especially strong interest in Barton during 2008, however. Barton attracted donations during each two-year campaign cycle from many corporations, but in 2008 ExxonMobil was one of the congressman’s top three campaign donors for the only time in a decade. Combining corporate, ExxonMobil Political Action Committee, and individual employee contributions, ExxonMobil gave Barton $38,298 that year, more than 40 percent more money than in any other cycle since 2000.
In a telephone interview, Jeffers said he believed a fund-raising event had been held for Barton around the time the 2008 donations by ExxonMobil employees were recorded in public filings, but the spokesman later declined to respond to questions about the event’s date, organizers, or the timing of invitations, in relation to the consumer bill’s passage. Barton’s office did not respond to requests for comment.