by Steve Coll
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.14
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.”15
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.16
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.”17
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.”18
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.”19
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.”20
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.21
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.”22
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 $10,150.23
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.”