THE MAN I HAVE in mind is a salesman. He is a man in his 40s, handsome, successful at what he does. He is always smiling, always agreeing with you, always cheerful. Tell him you hate his tie and he'll take it off. Tell him his wife is ugly and he'll agree with you. He'll do anything to avoid a fight or take a position. He's the wave of the future.
When I see him, I try to pick a fight. I try to get him to something, express a point of view. I've attacked his company. He agrees with me. I've accused him of doing shabby work. He apologizes. I tell him he's remiss. He promises to do better. I ask him what he thinks. Anything I do, he says.
The man's a salesman, but he could be a member of the Federal Trade Commission of maybe some other regulatory agency since they, too, are supposed to be some sort of mental neuters. Recently, for instance, the court here ordered Federal Trade Commissioner Michael Pertschuk from further considering a ban on television advertising aimed at children. At issue are products and foods aimed at children who, Pertschuk says, are too young to be able to understand that the commercial is, well, a commercial.
Now you have to understand children to understand that Pertschuk has a point. Young kids don't see commercials as commercials. They see them as something else-God knows what-but it's something close to the truth. They don't know they are being sold, manipulated, lied to or whatever. They are, after all, children.
What the court, and, of course, the manufacturers of children's products, objected to was Pertschuk's views on the subject. He had these views before he became FTC commissioner and he retained them and now he wants to make them law. A neutral observer he hardly is. He is, his critics argued, not fit on this matter to judge the case. In other words, they said his mind was already made up.
In Washington, this is what's considered an interesting intellectual issue. And to some extent it is. In the case of federal regulatory agencies, the commissioners themselves are both regulators and judges-they fulfill both functions. As regulators, they are supposed to have views, as judges they are not.
The trouble with this, though, is that even judges are supposed to have views. William Rehnquist, the Supreme Court justice, wrote a long memo in 1972 explaining why he would not disqualify himself from a case in which he had earlier appeared as an expert Justice Department witness before the Senate. The thinking was that Rehnquist had already made up his mind-that he had already said what he thought when he was with the Justice Department.
Rehnquist more or less agreed. But he argued that no man of mature years could possibly come to the Supreme Court as if he just came out of a cocoon. Everyone has views and opions, and lawyers have views and opinions on matters of law.
He certainly did, he wrote, and he cited lots of examples of Supreme Court justices who not only had views about, say, legislation, but had actually helped draft the law in question. Having views, he said, did not mean he did not have an open mind. He said he was not going to disqualify himself and he did not.
There are some differences between the Rehnquist case and the issue at stake with Pertschuk. A regulatory commissioner, unlike a Supreme Court justice, does not simply sit back and wait for an issue to reach him. He can take the initiative. Moreover, the FTC commissioner is a man of bombastic style, and he left no doubt where he stood on the matter of television advertising aimed at children.
Now maybe the time has come to say that this is not one of the great issues of our time. While there's no doubt that children can't discriminate between teeth-rotting sugary cereals that are hawked by animated tigers and the real good stuff that tastes, as I remember it, like glue (ugh), they are not the ones who do the buying either. It's not the worst thing in the world for parents to say to kids that they can't have something and to teach them, as they must surely learn sooner or later, that television lies and color television lies in color.
But having said that, we return to Pertschuk. The hardest thing in the world is to make your mind about something-to have a point of view. The world is full of people like my pal the salesman, who don't say anything, who smiles at you when you cut off the lower two-thirds of their tie. It's not, of course, that they have no opinions-it's just that they're afraid to say what they are. I know what that salesman thinks of me just as surely as the pushers of children's products know what Pertschuk thinks of them. The only difference between them is that one was honest enough to say where he stood and the other wouldn't say anything about anything.
The salesman would make a perfect regulatory commissioner.