Sunstein was confirmed on Thursday to run OIRA.

University of Chicago professor and longtime Obama friend Cass Sunstein was confirmed today by the U.S. Senate, on a 57-40 vote, to serve as the head of the Office of Information and Regulatory Affairs.

As Matthew DeLong at The Washington Independent reports:

Sens. Blanche Lincoln (D-Ark.) and James Webb (D-Va.) voted against Sunstein. Though he supported cloture for the Harvard law professor, Sen. Bernie Sanders (I-Vt.), who caucuses with the Democrats, also voted “no” on Sunstein’s confirmation.

Sen. Lieberman yesterday successfully brought a cloture motion, leading to today’s vote.

Interestingly, despite the fact that Republicans had held up Sunstein’s nomination, it was not met with unbridled enthusiasm from all liberal corners either — as Sanders’ vote shows.  As I reported on multiple occasions, the Center for Progressive Reform had some concerns with the prospect of Sunstein running the regulatory agency.  As scholars with CPR wrote prior to Sunstein’s confirmation hearing:

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.

Well, now we’ll see.

[UPDATE: Unsurprisingly, CPR is up already with a post from Rena Steinzor, CPR's president:

Having paid careful attention to OIRA over these past few months, in search of evidence of a new outlook, I’m sorry to report that I’ve drawn the strong impression that Bush Administration culture and ideology remain unchanged at OIRA. To deliver change we can believe in, Cass Sunstein needs to convert OIRA from industry waiting room to objective arbiter of inter-agency disputes.

. . . . For years, and especially during the tenure of Presidents Reagan, Bush I, and Bush II, OIRA has served as a backdoor for regulated industries, giving those aggrieved by agency decisions a second, third, and fourth bite at the apple to press their case. Having failed to persuade Congress of their arguments during the legislative process and then the regulatory agency during their deliberations, industry has found a friendly hearing from OMB, and OMB has too often watered down or scuttled regulations afterwards. But even if OMB staff sit silently at the meetings, giving an audience to industry complainants but not otherwise agreeing to overturn agency decisions, the practice is questionable. As experience in the courts since before the nation was founded has convinced us, only by airing all sides of a dispute through balanced advocacy can a wise decision be made.

. . . . We look forward to working with Cass Sunstein. And we also promise to stay in his face, making sure he remembers that his biggest challenge is to revive strong government protection of environmental quality, food, drug, and worker safety, and the control of climate change, not working to appease industry. We wish him luck and success.

I have no doubt they will "stay in his face."  I think the question is if he will listen.]

Sunstein, President Obama's nominee to head OIRA.

Sen. Lieberman successfully filed today for cloture on the nomination of Cass Sunstein to direct OIRA, the Office of Information and Regulatory Affairs.  Sunstein and Dawn Johnsen, nominated to serve as the head of the Justice Department’s Office of Legal Counsel, are two of the nominees whose hold-up have drawn the most attention despite their spectacular pedigrees.

From Dave Weigel at The Washington Independent:

Sen. Joe Lieberman (I-Conn.), chairman of the Committee on Homeland Security and Governmental Affairs, introduced the cloture vote on Cass Sunstein’s nomination by addressing some of the conservative movement-driven attacks on him and rebutting them with letters from conservative supporters. “This is one of those nomination,” said Lieberman, “that I think has become unnecessarily controversial.” Sunstein’s most eye-popping statements on gun and animal rights? Well, Sunstein is “brilliant and prolific,” and he’s written “some unconventional things.”

According to @senatus, the Senate approved the cloture vote on a 63-35 vote.  Among the Republicans who voted for cloture were Senators Bennett, Collins, Gregg, Hatch, Lugar, Snowe and Voinovich.

This means that there will, in the coming day, be an up-or-down vote on Sunstein to head up OIRA.

Unfortunately, three Democrats — Senators Lincoln, Pryor and Webb — voted against even allowing a vote on the president’s nominee.  This seems to be fairly remarkable to me.

These three senators voted that the president should not even receive an up-or-down vote on the president’s nominee to run an agency that, though important, is under the auspices of the Office of Management and Budget.  This is quite a bit of micromanaging from members of the president’s own party.  I’m OK if a Democrat occasionally votes against one of the President’s nominees, but voting against cloture?

the Obama administration prepares to overhaul the regulatory apparatus that failed to prevent the gravest economic crisis since the Depression. Under consideration is a new agency to regulate mortgages and credit cards, as well as tighter federal oversight of hedge funds and insurance. One possibility is creating a regulator to watch over companies that might put the financial system in peril again should they run into trouble.

If you care about this stuff enough that you want to see the weeds before we even know what the garden looks like, it’s an interesting piece worth checking out.  Otherwise, wait for U.S. Rep. Barney Frank’s committee to actual begin debating its proposal.

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:

1. Everything done must be consistent with the law.
2. Everything must be done with an eye toward the President’s policy preference.
3. 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.

• A high-school student is suing the State of South Carolina, trying to get it to accept stimulus funds and use them on education.  Attorney General Henry McMasters says he’s fine with the case being heard but thinks the lawsuit has several procedural hurdles that it can’t overcome. [The State]
• Mom-slash-teacher takes four kids, one her own and three other students, to a gay dance club (Masque, for those of you in the Dayton area).  Kids drink, allegedly from drinks given to them by older friends at the club.  Teacher resigns.  Hmmm.  This sounds like she did something wrong, but assuming she just meant for the girls to be able to dance (especially since she was the mother of one), why is this an offense worthy of resignation?  Is this a drinking thing, a bar thing, or a gay thing? [The Advocate]
• The Center for Progressive Reform soft pedals on the formal nomination of Cass Sunstein to head OIRA.  CPR President Rena Steinzor said: “[W]ill Professor Sunstein put his years of study of the issue and his prodigious intellect to the all-important task of repairing the tattered framework of the nation’s regulations?” [CPRBlog]
• With all the focus on Judge Bybee these days, the LA Times backs up to look at the state of the Ninth Circuit more generally. [LA Times]
• Gavin Newsom is running for Governor of California:

[youtube=http://www.youtube.com/watch?v=BH0jnyuJ1Tg]

• Some procurement reform advice. [Administrative Law Prof Blog]
• In the wake of the Supreme Court decision in Entergy Corp. v. Riverkeeper, Inc., Prof Michael Dorf talks about cost-benefit analysis and best-practices and performance standards in the new Administration. [FindLaw]
• State Rep. Julie Hamos (D-Evanston, Ill.) wants to run for Attorney General . . . if Illinois A.G. Lisa Madigan decides she wants to run for something else.  Anyone heard of Madigan looking to run against Sen. Burris or Gov. Quinn? [The News-Gazette.com]
• Anne Gust, who married California A.G. Jerry Brown, was general counsel at Gap, Inc., previously, and now “is an unpaid special counsel in the state Justice Department. She is summoned to resolve complex legal wranglings and advise her husband on policy.“  Thoughts? [San Jose Mercury News]
• D.C. drama . . . in city government . . . out of the Dick Cheney playbook.  WaPo: “Two D.C. Council probes into allegations of wrongdoing at city agencies were blocked yesterday when Attorney General Peter Nickles advised officials not to testify.” [The Washington Post]
• Finally, Good As You asks, “How can ‘not out’ = ‘Out’?” [Good As You]

The Center for Progressive Reform’s James Goodwin has this excellent report on the comments submitted thus far to the Obama Administration’s call for a review of the Executive Order on regulatory review.  I discussed CPR’s comments last week here.

The institution of centralized regulatory review, conducted through the lens of cost-benefit analysis, has played a prominent role in contributing to the dysfunctional state of the regulatory system.  To correct this situation, and to rescue agencies from their dysfunctional state, nothing less than a fundamental redesign of the institution of regulatory review is required.  In particular, we recommend two major changes to Executive Order 12866.

First, the Office of Information of Regulatory Affairs (OIRA) must abandon its role of conducting centralized regulatory review.  . . . OIRA’s role should be fundamentally reoriented.  It should work with agencies to improve their ability to fulfill their regulatory missions, helping agencies to calculate and document their true budgetary needs, develop better and more proactive regulatory agendas, resolve interagency disputes, and ensure they have the necessary legal authority to truly protect individuals and the environment. . . .

Second, the new Executive Order must replace cost-benefit analysis as a determinative factor in regulatory decision-making for two reasons:  (1) it is inconsistent with the law in most cases and (2) it has failed as a tool of regulatory analysis.  In the vast majority of public health, safety, and environmental statutes, Congress has not chosen to incorporate cost-benefit analysis.  It has instead directed agencies to use a variety of well-established alternative methods for setting standards. . . .

Moreover, cost-benefit analysis is a failed approach to regulatory analysis, producing reliably unreliable results.  To be clear, cost-benefit analysis is not in need of mere tweaking.  It is inherently flawed.  Over a quarter century of use by administrations of both parties, it has failed to accurately or adequately capture the benefits of proposed regulations, and it has even ignored some benefits altogether because they defied monetization.  At the same time, it has frequently overstated the costs to industry of compliance.  As a result, cost-benefit analysis is a truly distorted approach to regulatory decision-making that is tilted heavily against new regulations.

First, this is a shot across the bow at Sunstein.  I’m not sure how calling cost-benefit analysis “inherently flawed” can be anything other than an assertion that you don’t think Cass Sunstein should be heading up OIRA.  Although Sunstein sees limits to the value of cost-benefit analysis, he certainly sees it as a valuable part of our regulatory system.  Additionally, CPR’s overall vision of decentralizing regulatory efforts (minimizing the influence of OIRA?) likewise appears to be a shot at Sunstein.

The CPR folks mean business; the question is:  Will the new Administration be listening?

• Lawrence Summers suggests we might be rounding the bend.  From the washingtonpost.com: “[I]t is modestly encouraging that since it began to take shape, consumer spending in the U.S., which was collapsing during the holiday season, appears, according to a number of indicators, to have stabilized.”  He went on to talk about “smart regulation,” a favorite topic of mine.  [washingtonpost.com]
• The Administration’s pick to head the FDA, former NYC health commissioner Margaret Hamburg, “avoids the usual debate between industry and consumer advocates.”  [The New York Times]
• What does it mean when Warren freakin’ Buffet loses his Triple-A rating?  From Forbes.com: “In the past year, shares of Berkshire Hathaway, the insurance and electricity conglomerate that Buffett controls, have lost 35%. Buffett saw his personal wealth decline by $25 billion. Now Fitch Ratings has snatched away his top-notch rating, downgrading Berkshire to AA.”  [Forbes.com]
• I, Chris, by way of the recommendation of Maddow, hereby recommend Doctorow recommending Geoghegan recommending being smart about unions. From Doctorow: “This is one of the best books I’ve read about labor politics in America, striking a balance between the romance and heroism of the best labor struggles in US history . . . and the venality, pettiness and criminality of the worst of labor . . . .”  [Boing Boing]
• Of course you’ve seen it, but if you haven’t: Comedy Central, March 12, 2009, Stewart v. Cramer.  It’s instantly classic TeeVee.  [The Daily Show]

President Barack Obama’s proposed fiscal 2010 budget includes a 13 percent increase in funding for the SEC over 2008 and identical 2009 amounts to about $1.03 billion. SEC chairman Mary Schapiro said in a statement Feb. 26 that the money “would enable us to increase our staff and use new technology to pursue risk-based approaches that would better detect fraud and ensure stronger oversight of the nation’s securities markets.”

Money is only a start at right the SEC ship, but it looks like Obama and Schapiro both at least have a desire to do so.  Schapiro’s full statement (not much more) can be found here.

In related, Madoff-spawned news, the SEC already has announced that it is beginning a full review of its process for handling “whistleblower complaints and enforcement tips.”