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Today is the day that Cass Sunstein is to appear before the Committee on Homeland Security and Governmental Affairs for consideration of his appointment to head up the Office of Information and Regulatory Affairs. There is no question whether the man is smart; he is one of the most highly respected voices in the legal academy.
Rather, the question today will be whether he’s the man for the job in a Democratic Administration. The Center for Progressive Reform has been all over this nomination since its announcement, and today is, it would appear, the full court press. In an op-ed published in The Philadelphia Enquirer, Catherine A. O’Neill and Amy Sinden, both scholars with CPR, today raise the big question and don’t pull punches about OIRA and Sunstein:
Beginning in the Reagan administration, any regulation with a significant impact has had to pass through Information and Regulatory Affairs’ doors for approval. The office’s role, frankly, has been to water down health, safety, and environmental regulations – if not drown them entirely.
. . . .
Once confirmed, Cass Sunstein will face a choice: rely on cost-benefit analysis with the zeal his past writings suggest he would, modify the process in the hope that it can somehow be mended, or abandon it in favor of a better method. The decision he makes will have profound consequences.
Let’s hope we find out what his choice will be during his confirmation hearing.
CPR’s president earlier posed five questions whose answers she is hoping to hear at Sunstein’s hearing. Think Progress, the Center for American Progress’s blog, presented a similar concern about Sunstein back in January.
Today, however, is Sunstein’s day to respond to these criticisms.
The committee is fairly moderate, with Chair Sen. Lieberman and Ranking Member Sen. Collins. The best bet for tough questioning likely will come from Sen. McCaskill, although it would be nice to see Sens. Akaka, Carper or Levin step up for some tough questioning as well. I wouldn’t expect much by way of the other Democrats, though, as they include Sens. Bennet, Burris, Landrieu, Pryor or Tester. (And both Sen. Levin, with the auto industry, and Sen. Carper, with Delaware’s corporate interests, might not be among the biggest fans of renewed regulation this year. But that’s not based on anything more than my noting of their home states.) And with moderate-conservative Sens. Graham, McCain and Voinovich, as well as far-right conservative Sens. Coburn and Ensign, filling in the seats on the other side of the aisle, the Republican questioning could get fairly interesting as well.
It will, if nothing else, be an interesting hearing at 10 a.m. — and a chance for Sunstein to share his vision for the office.
[UPDATE: The hearing will be able to be viewed here. I will be liveblogging below the jump.]
[SECOND UPDATE: The hearing suggests, as only Sens. Lieberman, Collins and Akaka attended (or, at least, asked any questions), that the nomination will not provide much liberal controversy. Sunstein did state clearly that cost-benefit analysis should take a back seat when congressional mandates call for other analysis to be applied to regulatory review. It would appear that the day belongs to Sunstein, though CPR and CAP's concerns did lead to a careful couching of Sunstein's view of both statutory and agency primacy over presidential perogative and OIRA, respectively.
My full coverage of the hearing is below the jump.]
The hearing opened at 10:10 a.m.
The Chair, Sen. Lieberman, gave a strongly supportive opening statement, as did the Ranking Member, Sen. Collins, who referenced her support for his work on cost-benefit analysis but questioned his views on hunting.
Sen. Klobuchar is introducing Sunstein, who notes The Wall Street Journal’s endorsement of him.
Sunstein begins. His three goals at OIRA: Information policy, statistical policy and regulatory review. As to the regulatory review portion, he notes the following three principles:
- Everything done must be consistent with the law.
- Everything must be done with an eye toward the President’s policy preference.
- Institutionalize the notion of looking before you leap.
Sen. Lieberman liked that the opening statement was “non-ideological.” He asks about who should be in the lead on rulemaking, vis a vis, OIRA or agencies?
Sunstein responds that the rule-making authority is given to the agencies; the OIRA review is to be considered as it is part of law, but must remain subservient to the agency’s authority.
Lieberman asks about cost-benefit analysis (CBA).
Sunstein’s approach to CBA is humanized. It shouldn’t put regulation-making in a straight-jacket. All of this is subordinate to the law, to the extent that some statutes call for other non-CBA standards.
Lieberman: What would you do to keep “soft variables” from being lost in CBA review?
If statutory, they must be respected. If in the President’s view, they should be respected. It’s important to be concerned with moral and distributional concerns.
Sen. Collins asks about hunting and a statement that he made regarding banning hunting.
Sunstein states that he greatly supports the Second Amendment and wouldn’t act to affect hunters’ rights.
Sen. Collins asks about the legal rights for animals, relating to Sunstein’s work.
Sunstein responds that the law, not his writing, is pre-eminent. Sunstein said he looked at cruelty to animal statutes, and was writing about private rights of action for those statutes.
Collins asks about his writings on expanding OIRA review to independent agencies, which Sunstein, she says, has advocated.
“Look before you leap,” includes looking at the Federal Trade Commission, etc., in working on regulations, but respecting the legal independence of those agencies. Again, though, all done in adherence to the law and the corresponding presidential perogative.
Sen. Akaka asks about privacy.
Sunstein reponds that discussion would start with the head of the Office of E-Government, then to staff and outside affected entities — with a 5-10 year outlook. My goal would be to look to what reforms ought to be made under the Privacy Act.
Akaka: Are the current laws adequate?
Sunstein: The act has been amazingly prescient. It is clear, though, that the changes mean the regulations must be re-examined, and statutory changes might be considered.
Akaka: The Plain Writing Act questions. OIRA is responsible for dissemination of information to the public.
Sunstein would look forward to implementing the act.
Lieberman goes for a second round of questioning, in which he asks about the “other side” of privacy — people’s access to information.
Sunstein: First priority is regulations.gov. It’s not clear that it passes the clear language test. It isn’t as accessible as it ought to be. Simplicity, clarity and publicity would be the key words. We are just beginning to realize that we can use the Internet to harness the power of people’s experience in the regulatory comment period.
Lieberman asks about Sunstein’s questions about the constitutionality of OSHA and the Clean Air Act.
Sunstein: The articles concluded that both are constitutional. He was looking for arguments that they are constitutional.
Collins asks about the privacy portfolio.
Sunstein: I intend to look very carefully at what institutional structure is best suited to provide the protection. There is a notice out now for a person whose sole job relates to privacy.
Collins asks about when agencies proceed on a regulation despite its failing a CBA.
Sunstein: It’s a big question. I haven’t done a review, but agencies would need to recognize and state that the law requires proceeding or that soft variables require doing so.
Collins asks about transparency of rule-making process.
Sunstein talks about both an open virtual and real door for OIRA. Stakeholders often know things that the agency and OIRA don’t. Second, no secret or backroom participation. If OIRA is meeting with people, the public should know.
Sen. Lieberman will support Sunstein’s nomination and hopes to move it forward quickly. It would appear that no one else attended the hearing, which is unfortunate.
The hearing is concluded by 11:15 a.m.
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Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, contributes regularly to Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found