Toyota: Should Someone Go to Jail?

The congressional hearings so far on “sudden unintended acceleration” (SUA) in Toyota cars should have made two truths obvious to Washington policymakers. First, the strategy of counting on major manufacturers to voluntarily ensure that their consumer products are safe is unworkable in a competitive market, and second, safety agencies like the National Highway Traffic Safety Administration (NHTSA) need to walk softly but carry a very large stick.

Gone are the days when we could reasonably expect government technical experts to shadow manufacturers’ design engineers in order to coax them into taking care, even in a market with fewer than ten major manufacturers. But NHTSA still should have stepped out in front of the strong industry trend to rely on electronic controls or, as it is colloquially known, “driving by wire,” which is the likely source of SUA, at least in the Camry, and required all manufacturers to install an effective “brake to idle” feature across all models. According to the well-respected consulting firm Safety Research and Strategies, Inc., headed by former Center for Auto Safety staffer Sean Kane, this design, which is found in many other manufacturers’ cars operated by electronic throttles, brings the engine to idle if both the brake and the accelerator pedals are applied. Too many Toyota drivers have reported that no amount of braking would bring the car to a stop.

As important, now that the worst has happened and an unprecedented number of recalls are in the works, NHTSA must bring the full weight of its enforcement authority to bear on any malfeasance by Toyota. A decision by NHTSA to walk away without inflicting such punishment would encourage auto companies to return to business as usual. None of them want to be the next Toyota, but in the absence of a strong punitive response by the government, manufacturers have compelling incentives to continue to rely exclusively on internal corporate controls rather than disclosing problems to the government. And NHTSA, with a budget that is plainly insufficient to the task of ensuring vehicle safety, cannot protect the public without such full and timely disclosures.

Consider the last effort Congress made to give NHTSA teeth. Until the Ford Firestone episode exploded onto front pages in 1999-2000, NHTSA did not have the authority to prosecute corporate executives, no matter how egregious their company’s behavior. In an impressive and unaccustomed exercise of bipartisan legislative efficiency during an era as hopelessly gridlocked as now, the House of Representatives held hearings, crafted legislation, passed bills out of committee, and over the House floor within a matter of weeks. The going was tougher in the increasingly dysfunctional Senate, but legislation crafted by Republican presidential candidate John McCain (R-AZ) passed that same session and President Clinton signed the TREAD Act into law.

The heart of this relatively new law is a series of “early warning” requirements that require manufacturers to turn over dealer repair records, consumer complaints, property damage reports, warranty claims, field reports, production numbers, and the results of investigations or recalls in other countries. The statute imposes steep civil and criminal penalties for manufacturers who fail to comply with these disclosure requirements, including prison terms ranging up to 15 years for officials who act with “specific intention to mislead the Secretary of Transportation.” 49 U.S.C. §30170. A second, non-NHTSA specific provision of federal law makes it a five-year felony to file a “materially false” statement with any agency or department in the government. 18 U.S.C. §1001

Unfortunately, the full record of what Toyota did or did not disclose to NHTSA over the past several years is not available to the public because the company has claimed that many of these disclosures constitute “confidential business information,” as CPR Executive Director Shana Jones explained earlier. But the record is complete enough to allow the experts at Safety Research to conclude:

Past investigations have been opened and closed too quickly to get to the root of a complex problem; critical data have been excluded from the analysis; the agency lacks expertise in the area of electronic forensics and has ignored inconsistencies, accepting in whole Toyota’s explanations – that electronic failure cannot occur unless its diagnostic system catches them; and the agency has an institutional bias against a non-mechanical or non-driver cause of sudden acceleration.

In the weeks to come, Congress will undoubtedly become quite preoccupied with these clear signs of widespread regulatory failure at NHTSA. Despite Transportation Secretary Ray LaHood’s pugnacious efforts to defend how the agency has acted “on my watch,”  the NHTSA culture of passivity in the face of relentless lobbying by the auto industry has hobbled the agency for decades, and was especially debilitating during the Bush II years.

But the resolution of the Toyota disaster cannot be more legislation alone, followed by more passivity from NHTSA. Rather, lawmakers must demand that the agency pull itself together right now, and that it prosecute Toyota to the full extent of existing law, if that’s what the facts support. Dodging that responsibility will send the wrong signal to the entire industry: that withholding information from NHTSA and solving problems on your own and at a leisurely pace will earn you a free pass in the United States, no matter how grave the scandal.