Will Eye Care Lobbyists Retain Their Consumer Rights Loophole?
December 26, 2017
This article originally appeared in The Daily Caller on December 20, 2017.
Despite the efforts of many to “drain the swamp” of special interests, lobbyists are still making gains in President Donald J. Trump’s Washington.
While members of the House of Representatives are showing progress in fact-checking special interests’ claims, crony influence peddlers still have one piece of valuable leverage on their side: the limited time on members’ clocks.
Often, members of Congress face pressing legislative deadlines, which causes imperfect statutory language to slip through the cracks. This dynamic allows lobbyists to defy members’ best efforts to achieve purity and obtain victory.
Currently, the sharp contrast in outcomes between rushed legislation and a more deliberative process with tighter quality control measures is on full display in the House and Senate’s competing Appropriations subcommittee bills.
For example, the House Appropriations Subcommittee on Financial Services and General Government had time to conduct a detailed and thoughtful process for that spending bill. One day after publicly releasing the financial services and general government appropriations bill, Rep. Tom Graves (R-Ga.) held a public subcommittee markup where everyone had a chance to share their spending and regulatory concerns. Nearly half a month later, after those involved in the process had enough time to familiarize themselves with the bill, the House Appropriations committee conducted a roll-call vote on the legislation.
Since the Senate had “little time to finalize the regular appropriations bills,” lobbyists had greater opportunity to hijack the process. As a result, the Senate’s report language contains several glaring deviations from that of the House. One of the worst for consumers is the attempt to discourage a Federal Trade Commission (FTC) rule intended to strengthen the enforcement of consumers’ rights laws related to vision care.
During the George W. Bush Administration, Congress passed a bill on a 406-12 vote mandating that eye care specialists provide consumers with a copy their prescriptions — an act that frees them to shop around to find better prices. Despite the passage of this legislation, roughly 30 percent of patients are still not receiving their prescriptions.
In some cases, this loophole is a product of weak awareness of the law by eye examiners. However, consumer advocacy groups have noted that some eye care providers rely on the sale of corrective lenses for up to 70 percent of their revenue — a clear financial incentive to prevent consumers from shopping elsewhere by withholding the documentation to do so.
In examining this compliance problem, the FTC solicited comments from the public, met with subject matter experts on both sides of the issue, and documented its findings in a Notice of Proposed Rule making. After more than a year of analysis, the FTC proposed requiring eye care specialists to obtain patients’ signatures on a simple acknowledgment form to ensure awareness of the law by providers and patients alike.
Rep. Graves’ House subcommittee gave the comprehensive process undertaken by the FTC the respect it deserved by taking the time to parse through all the moving parts. In its report language, the House ultimately decided that the FTC was right: “enforcement mechanisms” must be increased to protect consumers. Unfortunately, the Senate did not and its bill language closely mirrors that of a key vision care industry special interest group by calling the FTC’s simple acknowledgement form an “unnecessarily burdensome“ paperwork requirement. Members of the “Coalition for Patient Vision Care Safety,” a duplicitously-named group that includes four lens manufacturers controlling close to 97 percent of the contact lens market, conducted a well-orchestrated campaign against closing this loophole. Their campaign highlights the way special interests can use dubious facts and statistics to dupe even well-intentioned legislators.
The economic numbers members of the Coalition routinely spout and likely provided to the Senate may have understandably raised eyebrows, but this is where deliberation matters. A more thorough examination by the Senate would have revealed that the FTC had already examined these “cost estimates” closely and found them to be wildly inaccurate.
The good news is that sooner or later, major differences between the two bills like this one must be addressed by Congress. If the Senate does not make the changes beforehand, which it should, the conference committee tasked with producing a unified bill will. Presumably, the Senate will ultimately see the wisdom of their more deliberative House counterparts.
While Congress will ultimately take care of this specific legislative loophole, there is a bigger-picture equity gap that needs addressing – the one lobbyists are seeping through. As an added means of efficiency, congressional leadership must streamline the legislative process so that committee members and chairpersons have time to debate and separate fact and fiction. Some members have put forth an excellent effort to tighten quality control on their own, but structural changes are required to complete this transformation.
The American people deserve a functional Washington that puts citizens before corporate special interests. Congress should make year two of the Trump administration the moment in history that the political proclamations to “drain the swamp” become a reality.