[Senate Hearing 111-463]
[From the U.S. Government Publishing Office]
S. Hrg. 111-463
NOMINATION OF CASS R. SUNSTEIN
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
NOMINATION OF CASS R. SUNSTEIN TO BE ADMINISTRATOR, OFFICE OF
INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND BUDGET
MAY 12, 2009
__________
Available via http://www.gpoaccess.gov/congress/index.html
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
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51-041 WASHINGTON : 2009
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
Michael L. Alexander, Staff Director
Lawrence B. Novey, Senior Counsel
Kristine V. Lam, Professional Staff Member
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
John K. Grant, Minority Counsel
Jennifer L. Tarr, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 2
Senator Akaka................................................ 12
WITNESSES
Tuesday, May 12, 2009
Hon. Amy Klobuchar, a U.S. Senator from the State of Minnesota... 3
Cass R. Sunstein to be Administrator, Office of Information and
Regulatory Affairs, Office of Management and Budget............ 6
Alphabetical List of Witnesses
Klobuchar, Hon. Amy:
Testimony.................................................... 3
Sunstein, Cass R.:
Testimony.................................................... 6
Prepared statement........................................... 19
Biographical and financial information....................... 21
Responses to pre-hearing questions for the Record............ 31
Letter from the Office of Government Ethics.................. 68
Responses to post-hearing questions for the Record........... 69
Letters of support........................................... 70
NOMINATION OF CASS R. SUNSTEIN
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TUESDAY, MAY 12, 2009
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Akaka, and Collins
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. The hearing will come to order. This
morning, the Committee meets to consider the nomination of Cass
Sunstein to be the Administrator of the Office of Information
and Regulatory Affairs, known widely, or at least here in this
room, as OIRA.
OIRA is one of those government agencies that has a very
low public profile but exerts great influence over the workings
of our government and the daily lives of most Americans. In
Congress, we pass laws that express our values and our
aspirations. We draw lines between what is right and wrong,
desirable and undesirable in those laws, but because we cannot
foresee every circumstance in which the law will be applied or
every detail that the law wisely might include, we leave many
of the details to the Executive Branch of government and to its
regulatory authority.
For over a quarter of a century, Presidents have asked OIRA
to help oversee and coordinate this regulatory process, and
over those years, we have seen how OIRA has helped the
regulatory agencies protect the American people, and we, in my
opinion, have seen how OIRA has helped the regulatory agencies
place hurdles in the way of helping the American people,
sometimes blocking their efforts to fulfill their statutory
responsibilities.
Based on the record of the Obama Administration, at least
for these first 100 days plus a little bit, I am optimistic
that our new President and his Administration will develop a
regulatory agenda forceful in its intent to protect the
American people and to do so in a way that is transparent.
In Professor Cass Sunstein, the President has found someone
with exceptional qualifications and extraordinary talent,
clearly capable of leading OIRA in a positive direction to
strengthen the Administration's efforts and intentions and to
fulfill Congress' intentions as stated in the law.
When Professor Sunstein began teaching at Harvard Law
School in 2008 after a long and distinguished career at the
University of Chicago Law, his new employers announced that
they had hired, ``the preeminent legal scholar of our time--the
most wide-ranging, the most prolific, the most cited, and the
most influential.'' This must have come as unsettling news to
the many other members of the Harvard Law faculty who felt that
they were exactly that. But those were the words of Elena
Kagan, then Dean of Harvard Law, now the Solicitor General of
the United States.
Over your career, both in the short time at Harvard and
also at the University of Chicago, you have written extensively
about regulation, the management of risk, and indeed about OIRA
itself. I am sure that you would agree with me that the
regulatory agencies of the Federal Government face a series of
very significant challenges, some substantive, the
unprecedented set of challenges to our economy and to our
financial regulatory agencies, and also the unique challenges
that the global environmental problems have placed on our
environmental agencies.
We are also emerging from a period in our Administration in
which there was less aggressive regulation, and that may put
pressure on the existing regulatory agencies to, if you will,
try to catch up, and like the rest of government, all the
regulatory agencies face stringent budget constraints that can
interfere with their ability to perform their functions. So
that is the moment at which you come to OIRA.
In your prolific writings, you have expressed strong and, I
would say, sometimes controversial views about the way
regulations should be developed and reviewed, so I am
particularly eager to hear your vision for OIRA and your
thoughts on what role OIRA should play in this new
Administration.
It is a pleasure to welcome you here, and I really do look
forward to your testimony and the question and answer period.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman. The question that
your statement raises is, is anyone left at Harvard Law School
who has not been drafted to serve in this Administration?
I join the Chairman in welcoming Professor Sunstein to our
Committee today as we consider his nomination to be the
Administrator for the Office of Information and Regulatory
Affairs. OIRA, as the Chairman has pointed out, is one of the
alphabet soup of government offices that few people outside of
Washington have ever heard of, and yet it can have enormous
influence on regulations that affect the everyday lives of
millions of Americans.
Through the process of regulatory review, OIRA exerts
significant influence over the rulemaking process. Professor
Sunstein is a prolific author who has conducted an extensive
study of government regulation and of the various methods that
can be used to evaluate regulatory effectiveness.
If confirmed, however, he would step from the world of
theory into the realm of practice where not every idea
discussed in the classroom can be easily turned into
governmental policy, nor should it be. This can be a
challenging transition for those leaving the academic realm for
the world of the Executive Branch where their views and
decisions have real consequences.
Some of the core principles that seem to guide Professor
Sunstein's work appear to be appropriate for the OIRA position.
For example, he is an advocate of greater transparency. I am
particularly interested in his recommendation that agencies
should be required to explain a decision to regulate in those
cases where the costs outweigh the benefits.
The professor strongly supports the use of cost-benefit
analysis as a tool for evaluating regulation while recognizing
that such analysis cannot always be the sole criterion for
evaluating the desirability of regulation. In one of his most
recent and intriguing books, Nudge, Professor Sunstein makes a
compelling case for regulation that does not dictate actions
but instead encourages certain behavior without limiting
personal freedoms. While certainly not universally applicable,
this idea bears exploring as an alternative to more draconian
and costly command-and-control regulations.
Professor Sunstein has, however, written some provocative
and controversial statements that warrant our scrutiny. His
suggestion that perhaps hunting ought to be banned is
particularly troubling to those of us who represent States
where hunting and fishing are part of the heritage of their
families.
Finally, I want to note that, in the past, OIRA has played
a significant role in setting government-wide privacy policy.
Since 2001, however, it has not been clear who in the Office of
Management and Budget (OMB) is in charge of privacy. As this
Administration seeks to use information technology in
innovative new ways, OMB should make the protection of personal
information a top priority. An important first step will be to
designate an individual, whether within OIRA or elsewhere in
OMB, who will be directly responsible for developing policy to
safeguard privacy and who will be accountable to Congress and
the American people.
I look forward to discussing these issues with our witness.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins, and we are
honored to welcome Senator Amy Klobuchar, our colleague from
Minnesota, to introduce Mr. Sunstein.
In asking Senator Klobuchar to introduce you, you have,
without knowing, achieved a first in Senate history because I
gather that Senator Klobuchar was a student of yours when she
was at the University of Chicago Law School. You may not know
that she was a student of mine at Yale College.
Senator Klobuchar. It is an amazing coincidence.
Chairman Lieberman. It is an amazing coincidence, which
will be noted in some book of trivia someday. Senator
Klobuchar, it is a pleasure to have you here, and we welcome
your introduction at this time.
TESTIMONY OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE
OF MINNESOTA
Senator Klobuchar. Thank you so much, Chairman Lieberman
and Senator Collins. I am honored to join you here today. I am
especially honored because this is an opportunity to introduce
Cass Sunstein and speak about his qualifications as the
Administrator for the Office of Information and Regulatory
Affairs in the Office of Management and Budget.
I first want to congratulate Cass. He is here with his
wife, Samantha, and his teenage daughter, Ellen, and also his
in-laws. It is always nice to have your in-laws supporting you.
As you know, Cass and his wife, Samantha, are the proud
parents of a baby boy, just born 2 weeks ago. I guess they did
not bring him for this.
Back in the 1980s, as you mentioned, Mr. Chairman, I was
privileged to have Cass Sunstein as my law professor at the
University of Chicago. I took his administrative law class, and
also he was my advisor for the law review. His career as a
legal scholar was just beginning to take off, but he was
already making a very strong impression as a teacher.
I think for many students, he was their favorite teacher,
but of course, I will not say that given as you already stated
you were also my teacher, Mr. Chairman.
When we first saw Cass Sunstein in class, he really looked
like a boy in a man's suit. He was so thin, but he had such
enthusiasm. These were the days before whiteboards, and so he
would always get a lot of white chalk on his black suit, and he
was completely oblivious to it.
But he was far from being an absent-minded professor. He
would race along at a mile a minute in his lectures, a fountain
with a never-ending stream of ideas. He was never boring, which
is a tough standard for law students. In the 1980s, the
University of Chicago Law School was well-known for its use of
the Socratic Method, which meant for students trying to sit
next to someone with an easier last name than theirs. So I
would always, Mr. Chairman, look for Johnsons or Joneses or
those kinds of people.
But when he did call on you, he would say things like, Ms.
Klobuchar, I have a question for you, and then he would say A
and then B and then C and then D, and once he was done talking,
you would stare at him and think, I am not sure where he
started. But his mind could handle it.
In his 27 years at the University of Chicago, he became
legendary for both his teaching and his scholarship. Cass
Sunstein is one of the Nation's most thoughtful and respected
legal scholars with a distinguished record of accomplishments.
A graduate of Harvard Law School, a law clerk to Supreme Court
Justice Thurgood Marshall, a professor at the University of
Chicago, as you noted, for 27 years, the author or co-author of
more than 15 books and hundreds of scholarly articles, and as
Senator Collins has noted, I am sure we will all find things in
those articles we do not quite agree with.
But he is by large margin the most cited scholar on any law
faculty in the United States of America. One envious observer
said, if you look at what he has written and done, he should be
900 years old. Cass is not only a prolific writer, but also a
wide-ranging one, everything from constitutional law and
behavioral economics to Wikipedia and Bob Dylan's music.
In one recent book, he made good use of Mr. Spock of Star
Trek and Homer Simpson to discuss the potential of human
decisionmaking. But Cass has not been nominated for this
position because of his detailed knowledge of T.V. characters.
It is because no one has thought harder or more deeply or more
creatively about how to ensure fair cost-effective regulations
in modern America.
His overriding concern is that we have smart, science-
based, cost-effective, results-oriented policies to protect
public health and safety, to promote energy security, and to
strengthen our economy and financial system. Cass is
intellectually honest and rigorous, which means he goes where
the evidence takes him.
The Wall Street Journal recently commended him as someone
who will bring an important and much needed voice to the
Administration. He has been supported by 13 Nobel Prize winners
from across the political spectrum. They have endorsed him
because they trust in his ability to think and get things done.
While he can debate abstract legal theories with the best
of them, he is a scholar whose feet are firmly planted on the
ground. He is a pragmatist. He cares about ideals, but
ultimately he cares more about the right results.
In a famous essay, the historian and philosopher Isaiah
Berlin made a distinction between thinkers who are hedgehogs
and those who are foxes. He borrowed this from a saying by an
ancient Greek poet, the fox knows many things, but the hedgehog
knows one big thing.
At first glance, Mr. Sunstein would appear to be a fox
given the volume and variety of his writings. But looking more
closely, you can see that he is also a hedgehog. Do you like
these animal analogies, Senator Collins, to get at what you
were talking about?
It is no coincidence; we are also a State that likes
hunting. There is one big idea, the hedgehog, that animates
virtually all of his diverse work. It is the idea that we will
be better off when we take into account different viewpoints
and let evidence guide our decisions.
His open-mindedness and his willingness to look at all
sides of an issue are virtues that will serve him well in this
important position. In turn, the American people will be well
served by these same virtues, as well as his dedication, hard
work, and commitment to the highest standards of excellence.
So I am very pleased to present Mr. Sunstein to the Members
of this Committee. Thank you.
Chairman Lieberman. Thanks very much, Senator Klobuchar.
That was a wonderful introduction. I appreciate it very much.
If I may do something that I presume Professor Sunstein never
did, you are excused for the rest of the class because I know
you have a busy schedule today.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Chairman Lieberman. Thank you very much for that
introduction. It was excellent.
Let's proceed to the hearing, and now I would say for the
record that Mr. Sunstein has filed responses to a biographical
and financial questionnaire, answered pre-hearing questions
submitted by the Committee and had his financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made part of the hearing record, with
the exception of the financial data, which are on file and
available for public inspection in the Committee offices.
Our Committee rules require that all witnesses at
nomination hearings give their testimony under oath, so
Professor Sunstein, I would ask that you please stand and raise
your right hand.
Do you swear that the testimony you are about to give to
the Committee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Sunstein. I do.
Chairman Lieberman. Thank you. Please be seated. We would
now welcome your statement and introduction of members of your
family and even friends who are here.
TESTIMONY OF CASS R. SUNSTEIN \1\ TO BE ADMINISTRATOR, OFFICE
OF INFORMATION AND REGULATORY AFFAIRS, OFFICE OF MANAGEMENT AND
BUDGET
Mr. Sunstein. Thank you, Mr. Chairman. I am very grateful
to be here. I am grateful to you in particular for your
kindness over the last weeks; Senator Collins, to you for being
here and for the kindness and generosity of your staff; to
Members of the Committee and their staffs, for your guidance
and suggestions and policy proposals and generosity.
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\1\ The prepared statement of Mr. Sunstein appears in the Appendix
on page 19.
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I am grateful to Senator Klobuchar for her extremely kind
statement and also for her wonderful performance as a student,
which vaulted her into public prominence. I am grateful to the
President, of course, and honored by him for his trust.
With your indulgence, I would like to introduce members of
my family who are here. Eddie Bourke, my father-in-law; my
amazing mother-in-law, Vera Delany, who played tennis at
Wimbledon; my amazing daughter, Ellen Ruddick-Sunstein; and my
remarkable wife, brave Samantha Power, who is a recent mother.
And noting that fact, I would like to mention two family
members who are not here, my son, Declan, born 2 weeks ago, and
my father, Cass Richard Sunstein, who, like Senator Akaka,
fought in World War II. He was in the Navy in the Philippines,
and I miss him a lot, particularly today. Thanks Dad.
Let me say a few words about my own background and my
conception of the role of the Office of Information and
Regulatory Affairs. As noted, for over two decades, I have
taught law--constitutional law, administrative law,
environmental law, labor law, and associated fields--mostly at
the University of Chicago Law School, and my writing is
predominately in those domains.
Recently I moved to Harvard Law School where I founded the
Program on Risk Regulation, whose work overlaps greatly with
that of the Office of Information and Regulatory Affairs. We
explore homeland security, the economic crisis, energy
security, environmental protection, occupational safety and
health, and related topics.
In recent years, my own writing has emphasized three
topics. Transparency and information disclosure, as mentioned
by Senator Collins, particularly as a regulatory tool, is often
gentler than command and control regulation.
I have explored aggregation of information through the
Internet with the thought that bureaucrats in particular often
know much less than the American people do, and with the uses
of the Internet, we can often obtain valuable information about
the best way to protect people and about ways to improve
existing regulatory regimes.
Finally, with this book, Nudge, I have explored behavioral
economics and approaches to regulation that are based on a
realistic picture of how human beings behave in situations of
risk, danger, and information, and the goal is to try to
provide protection to people without coercing them.
With respect to the Office of Information and Regulatory
Affairs, its three fundamental tasks involve information
policy, statistical policy, and, as emphasized, regulation.
Information policy is absolutely fundamental, now more than
ever. It bears on national security as well as on sound
governance, and there are many challenges to be met in order to
ensure that information is secure, that privacy is respected,
that paperwork reduction actually occurs, and that the burdens
on small business and on others do not become overwhelming.
Sound statistics are the foundation for much of what the
Executive Branch does and the statistical work done at OIRA is
the basis for much policymaking at the Federal and State
levels. It is important that it be done objectively and that it
be kept up-to-date.
Regulation, as you, Mr. Chairman, have noticed, has been
controversial in the domain of the work of OIRA, and I would
just like to emphasize three foundations for the work of OIRA
in the regulatory arena. The first is everything done by OIRA,
as everything done by the Executive Branch, must be consistent
with the law. The foundation of regulatory review, the first
question to be asked by the Office of Information and
Regulatory Affairs, is ``what are Congress' instructions?''
That is the starting point for any mechanism for regulatory
review.
The second task is to ensure that within the boundaries set
by Congress, things done are consistent with the President's
own priorities and principles. The third task is to kind of
institutionalize the notion of looking before you leap so that
when the government is starting a regulation, whether it
involves homeland security, education, energy, or anything
else, there is some sense of what the consequences are likely
to be. That promotes accountability. It helps ensure that
citizens and government can know what the likely effects of
government action are.
The most important words in the executive orders governing
regulatory review are these: ``To the extent permitted by
law.'' Anything done within the framework of the Office of
Information and Regulatory Affairs has to keep those six words
in mind.
Mr. Chairman, we face a number of challenges right now
involving national security, financial stability, energy
security, environmental protection, healthcare reform, and
educational reform. I know that Members of this Committee have
exercised leadership in those domains, and when legislation is
passed in the future, and with respect to legislation that has
been enacted thus far, regulations will try to meet those
challenges.
I look forward to working very closely with you and Members
of the Committee and your staffs, if confirmed, to make sure
that those challenges are well met in the coming years. But for
the moment, I look forward to answering your questions.
Chairman Lieberman. Thank you very much. We will begin with
the standard questions we ask of all witnesses, three in
number. First, is there anything you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. Sunstein. No, sir.
Chairman Lieberman. Do you know of anything personal or
otherwise that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Sunstein. No, I do not.
Chairman Lieberman. And finally, do you agree without
reservation to respond to any reasonable summons to appear and
testify before any duly constituted Committee of Congress if
you are confirmed?
Mr. Sunstein. Absolutely.
Chairman Lieberman. Thank you. So far you are doing very
well. We will each have 7-minute rounds of questions.
I was interested in your opening statement in the extent to
which I would say it was non-ideological. There is a sense
that--and I want to ask you to comment on this--the Bush
Administration, which just ended after two terms, because it
was more skeptical of the role of government, was more halting
in its regulation, whereas the Obama Administration, presumably
more supportive of governmental action, will be more supportive
of regulation, which is to say that this is, to use simplistic
terms, a liberal Administration that follows a conservative
Administration.
I want you to just talk about that common view that Members
of Congress and people outside have of the regulatory process
and how you relate that to what you just told us in your
introductory statement, particularly about the primacy of the
law?
Mr. Sunstein. Well, my own approach to regulatory problems
I describe as pragmatic and empirical. As an academic, that is
a particular role. The role of the Office of Information and
Regulatory Affairs, the Administrator, should also be pragmatic
and empirical, but those would not be the first two words. The
first description of OIRA is that its charge is to implement
enacted legislation to ensure the terms of regulations conform
to the terms of statutes, and that is the starting point.
The second point is to ensure that whatever pragmatic and
empirical approach is brought conforms to the President's own
commitments and priorities. And the third step, consistent with
Executive Order 12866, which remains the controlling executive
order, is that the analysis that accompanies the regulations is
sound, that there is investigation of alternatives, and that
there is some effort to assess consequences.
So in that third part, compliance with Executive Order
12866, subordinate to statutes, there is a big place for
pragmatism and empiricism.
Chairman Lieberman. There is no particular room there for
ideology separate from the three factors that you have
mentioned.
Mr. Sunstein. That is correct. The only place where what
could be described as ideology would play a role is if there is
a statute that has a particular orientation.
Chairman Lieberman. Right.
Mr. Sunstein. Or if the President, as the President
suggested, in the energy domain he has some ideas.
Chairman Lieberman. Right, understood. Let me talk about
the relationship between OIRA and the agencies themselves. I
want to ask you who you think should be in the lead in setting
regulatory priorities determining what type of regulation is
needed and then setting the final content for the rules, the
agencies that are given authority under the laws or OIRA?
Mr. Sunstein. As you say, the statutes that give rulemaking
authority give such authority to the agencies so they have the
authority to issue rules. There is also a structure in place
for regulatory review, but that must respect the policymaking
authority and rulemaking power of the agencies.
Chairman Lieberman. Let me ask you to comment, and this in
some ways takes me back to the first question, on the role of
cost-benefit analysis. In your writings, you have been a strong
advocate for the use of cost-benefit analysis in rulemaking.
I cannot resist asking you, early in the Bush
Administration, we had a nominee before us for OIRA, John
Graham, who was also an advocate, a very informed advocate, for
cost-benefit analysis. But some of us voted against him because
we worried that he was going to use cost-benefit analysis to
frustrate the intention of Congress and the statutes. His work
is actually comparable to yours, at least in the direction of
it, and I wanted to ask you--and I presume you know his work--
perhaps to state this as provocatively as I might, why
shouldn't a senator who voted against John Graham's
confirmation also vote against yours?
Mr. Sunstein. Thank you for that. My own approach to cost-
benefit analysis is inclusive and humanized, I would say. I
would not want to characterize his in a pejorative sense, but
what I have emphasized in my academic writing is that cost-
benefit analysis should not put regulation in an arithmetic
strait jacket; that there are values and morals,
distributional, aesthetic, and otherwise, that have to play a
part in the overall judgment about what is to be done. I would
emphasize that there are limits to purely economic approaches
to valuation of cost and benefits.
Think, for example, of the domain of protecting disabled
people, where, as a scholar, I have written that consistent
with the Americans with Disabilities Act, cost-benefit analysis
is an inadequate approach. We are not trying to maximize money
with provisions that are protecting against discrimination.
But even more than emphasizing the humanized inclusive form
of cost-benefit analysis, what I would emphasize is that all of
this is subordinate to the law. So if the Clean Air Act has
provisions that forbid cost-benefit analysis from being the
basis of decision, that is authoritative.
Chairman Lieberman. You have answered the following
question that I was going to ask, which is to refer to several
statutes, particularly those that control environmental
pollution or unsafe workplace conditions, which you referred
to, or other risks to the public, where Congress has actually
prohibited a consideration of cost in comparison to benefits
and has mandated that regulations be based on other
considerations, such as the availability of technology or the
protection of health. I think you have answered that.
Just a final question, which you have touched on in this
regard. In your writings, you have described the risk in the
use of quantitative cost-benefit analysis, that is, as you put
it, ``it is possible that in practice, quantitative cost-
benefit analysis will have excessive influence on government
decisions, drowning out soft variables,'' which is your term.
What would you do as OIRA Administrator to try to ensure
that this does not happen?
Mr. Sunstein. The first task would be to make sure that if
the soft variables are part of what Congress wants to
safeguard, those variables be safeguarded. I referred to the
Americans with Disabilities Act.
Chairman Lieberman. Yes.
Mr. Sunstein. The second task would be to ensure that if
the President has a policy initiative in a domain, it reflects
his commitment to those soft variables, that those be
respected. The third idea would be in any implementation of
cost-benefit analysis that is worthwhile in practice as opposed
to law review articles, it is very important to be attentive to
moral considerations, distributional considerations, and others
that sometimes animate government action. And that is how I
would respond to the soft variables.
Chairman Lieberman. Very interesting. Thank you. My time is
up. Senator Collins.
Senator Collins. Thank you, Mr. Chairman. Mr. Sunstein, I
want to get right to the controversial issue that I raised in
my opening statement before exploring other issues with you.
In a 2007 speech you said, ``We ought to ban hunting.'' Now
that was just one speech, but then in doing a search through
some of your documents and legal articles, we also found a
statement saying, ``We might ban hunting altogether, at least
if its sole purpose is human recreation.''
First let me say that you certainly have the right to have
any view on hunting that you wish. My concern, as someone who
represents a State where hunting and fishing and the outdoors
are very much a part of our heritage, is that you not take
steps, if you are confirmed, to try to influence regulation in
such a way that it would affect the decisions that individuals
make in conformance with State and local laws on whether or not
to hunt.
Can you give me assurances that if you are confirmed you
will not seek to implement your personal view that hunting
should be banned?
Mr. Sunstein. Yes, Senator, I can pledge that to you in the
strongest possible terms. The only thing I would add is that
the law is authoritative, first. Second, I am a strong believer
in the Second Amendment to the U.S. Constitution. I am on
record as saying that the Second Amendment protects the right
to hunt. That reflects my own personal view.
The statement you quoted is a provocation, an offhand
remark in a speech that was on another topic, and not only
would I not want to ban hunting if that were my personal view,
it actually is not my personal view. Hunters are among the
strongest environmentalists and conservationists in the United
States, and it would be preposterous for anyone in a position
like mine to take steps to affect their rights or their
interests.
Senator Collins. Thank you for that strong statement.
Similarly, I read a primer that you wrote on the rights of
animals when you were at Chicago, and you seemed to be
suggesting that animals should have greater legal rights in the
court system.
Now I will tell you, in reading this fascinating treatise,
I cannot always tell when you are throwing out an idea for the
purpose of exploring all of the ramifications and all the
possibilities versus where you are actually advocating for a
position.
So perhaps I will ask you right now, why don't you help me
with the issue of legal rights for animals?
Mr. Sunstein. Thank you for that. As OIRA Administrator, as
opposed to an academic suggesting possible ideas for
consideration, the question would be, what does, for example,
the Endangered Species Act say or what does the Animal Welfare
Act say, not what does a law review article say? So I would
follow the law.
In terms of my own academic writings, the suggestion, which
was meant as a suggestion for contemplation, was that under
State law that prevents cruelty to animals, it might be that
the enforcement by criminal prosecutors could be supplemented
by suits by private people protecting animals from violations
of existing State law, very much like under the Endangered
Species Act, where people rather than elephants initiate
lawsuits.
So the idea was actually very conventional and a little
boring, though maybe my rhetoric made it seem less so. It was
just about ensuring enforcement of existing State anti-cruelty
law, and I know you have been a pioneer actually in the domain
of animal welfare.
So the idea here was a suggestion about State anti-cruelty
law, and it would not be legitimate for the head of the Office
of Information and Regulatory Affairs to be playing any role in
a Federal system in rethinking State anti-cruelty law.
Senator Collins. Thank you. Let me turn to another issue
that concerns me. You have recommended that the process of
regulatory review that OIRA undertakes should be broadened to
include independent agencies such as the Federal Trade
Commission (FTC), the Federal Communications Commission (FCC),
and the Consumer Product Safety Commission. That recommendation
concerns me greatly because the whole reason that Congress
creates independent regulatory agencies is to insulate them
from Administration policies, whether it is a Democratic or a
Republican Administration.
Congress has deemed that this particular area needs to be
protected from the changing agendas of different
Administrations. If you bring these independent agencies within
the regulatory purview of OIRA, you defeat the whole purpose of
having them be independent agencies. You are treating them as
if they are members of the President's cabinet. So why do you
advocate expanding OIRA's reach to independent agencies?
Mr. Sunstein. Well in my academic writing, the suggestion
was that a process of ``look before you leap,'' which included
reflections within the Executive Office of the President on the
views of, say, the Federal Trade Commission, might be a
reasonable way of ensuring dialogue and participation.
This is the academic argument, fully consistent with
everything you have pointed to, which is clearly correct, and I
am sure the Department of Justice would put an exclamation
point next to what you have said.
In my capacity as nominee for this office, the judgment of
what relationship the FCC, FTC, or the U.S. Securities and
Exchange Commission (SEC) has with the President is a judgment
for the President within the confines of the law. And the only
thing I would add--this is really not something for the Office
of Information and Regulatory Affairs to select--is whatever is
done, and nothing of the sort has ever been done, as you
suggest, must respect the legal independence of these very
different entities.
Senator Collins. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you very much, Senator Collins.
Senator Akaka, good morning. Welcome.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Good morning, Mr. Chairman and Ranking
Member Collins. I am delighted to be here at this hearing and
to see Dr. Sunstein again.
First I want to welcome you, Dr. Sunstein, and your family
and congratulate you on your newborn son, Declan. Secretly, I
was hoping he would be here. But thank you very much for
bringing your family and also your friends to this hearing
today.
As you may know, I am a strong advocate for greater
protection of personal privacy by the government, and too many
government agencies and private companies have failed to
adequately protect personal privacy. As Administrator of OIRA,
you would oversee numerous regulations that protect the privacy
rights of millions of Americans.
I believe that more can be done to protect personal
information and I hope that privacy protection will be a
priority at OIRA under your leadership. You did respond to the
Chairman's question about what you would do in protecting
privacy and did mention some steps you would take as
Administrator.
My further question to expand on that point is to ask
whether you have other possible ways in mind that you would
like to do this?
Mr. Sunstein. Thank you for that, Senator. With respect to
privacy, the Office of Information and Regulatory Affairs works
with the Privacy Act of 1974, and the first task would be to
consult with the head of the Office of E-Government, who works
with the Office of Information and Regulatory Affairs on
privacy issues, and to talk through the existing guidance,
which has been provided by the Office of Information and
Regulatory Affairs, to assess its adequacy.
I would want, if confirmed, to speak first with Vivek
Kundra, who is terrific, second with OIRA staff, who have
expertise in privacy issues, and third, to engage in a process
of outreach with interested stakeholders of various sorts to
see what problems have emerged, in what circumstances are
people's privacy being compromised, and in particular for the
next 5 or 10 years what sorts of threats to privacy are there
going to be. Often the government is reacting to problems of
last year and not foreseeing the problems of the next 5 years.
And then my goal would be, if confirmed--I would want to
hit the ground running on this one in particular--to look to
what reforms ought to be made within the framework you have
provided under the Privacy Act to ensure that when people do
not want third parties to learn what they have on Amazon or
anything about their medical records, all of this is kept
private.
Senator Akaka. Dr. Sunstein, the Privacy Act and the E-
Government Act are the primary mechanisms for protecting
Americans' privacy. This is an especially important issue with
the growing use of electronic information and technology by the
government and increased information collection in response to
the threat of terrorism.
Do you believe that the Privacy Act and the E-Government
Act currently provide adequate privacy protections?
Mr. Sunstein. I think the Privacy Act of 1974 was amazingly
prescient. It is a law that was enacted a generation ago, and
the basic foundations of the Act have really stood the test of
time.
What is not clear, and I gather this is the heart of your
question, is whether the communications revolution that we have
seen in the last 15 years unsettles some of the practices that
have emerged under the Privacy Act. On that one, it is clear
that a very careful look on the regulatory side makes sense,
and I understand that this Committee is investigating whether
legislative change is desirable, and I would look forward to
working with you very closely on that.
That is one that, as I said, in the next 5 or 10 years is
going to be even more urgent than it has been in the last 5 or
10 years.
Senator Akaka. Thank you. Dr. Sunstein, recently the
Homeland Security and Governmental Affairs Committee reported
my bill, the Plain Writing Act, favorably. That bill would
require Federal agencies to start issuing documents in plain,
easy-to-read writing. OMB would develop plain-writing guidance
and would help oversee implementation.
As you know, OIRA's mission includes overseeing
dissemination of and access to government information, so I
would expect that OIRA would take the lead with OMB on
implementation. You have told me that you are an advocate for
plain writing.
As the head of OIRA, do you feel you would be well prepared
to spearhead implementation if the plain writing bill was
enacted?
Mr. Sunstein. I do, Senator. I would defer to the Director
of the Office of Management and Budget on allocation of
resources and such issues. He would be my boss. But the answer
is absolutely.
Senator Akaka. Well thank you very much, and thank you for
your responses, and thank you for bringing your family and your
wife here today.
Mr. Sunstein. Thank you.
Senator Akaka. Thank you.
Chairman Lieberman. Thank you, Senator Akaka. We will do a
second round insofar as Members have additional questions. I
have a few.
Let me just focus in on the other side of your
responsibilities from the privacy side that Senator Akaka
focused on, which is the accessibility that the public has to
governmental actions.
The Paperwork Reduction Act is one of several pieces of
legislation that this Committee adopted and the Congress
adopted to make government more accessible to the citizenry.
The statute now states that the OIRA administrator will assist
the OMB director to ``develop and oversee the implementation of
uniform information resource management policies, principles,
standards, and guidelines'' that will ``promote public access
to public information.''
As Senator Akaka mentioned later, the E-Government Act was
passed saying that the Administrator of E-Government would work
with the OIRA Administrator to fill the statutory
responsibilities. I want to ask you generally, you mentioned
that you would be working with the Federal Chief Information
Officer, Vivek Kundra, what are your goals to establish clear
guidelines for Federal agencies when it comes to information
management on the public accessibility side?
Mr. Sunstein. First priority, Mr. Chairman, would be the
Regulations.gov website, which should make very clear to
affected citizens, and even interested citizens who are not
affected but who are curious about what their government is
doing, what the regulations say and what the burdens are and
what the benefits are.
Regulations.gov at present is a very impressive start, but
it is not clear that it satisfies the plain English test. As an
administrative law teacher, I have spent considerable time on
the Regulations.gov website and learned a great deal, but it
just is not as accessible as it ought to be to citizens, and
that is where I would start.
Chairman Lieberman. I agree totally with you about that. We
understand it is an enormous challenge to do what we have asked
Regulations.gov to do, and they are off to a decent start, but
I agree with you, if I hear you correctly, that it needs a lot
of improvement. Because I think the congressional intention
here was not just to provide some access to information, but
really to give individuals the opportunity to comment on
proposed regulations, which is to an extent that they have
never had the ability before because of the Internet. So do you
have any specific ideas about how you might make it better?
Mr. Sunstein. Yes. First of all, much more simplicity and
much more plain English. And the architecture of the website
should be altered so that you do not have to click so much
before you start to read something that is itself quite
complicated. So much greater simplicity of the sort that the
private sector often has.
In terms of public comment on regulations, I think we have
just started to realize the promise of an era of public
reaction and input with respect to regulations, and this is
something I have worked on as an academic. It is something that
Vivek Kundra is interested in and that the Director is also
interested in, that is, enlisting private sector knowledge in
terms of seeing what is working well and poorly for existing
regulations, exploring gaps in regulatory protection, some that
can be filled by agencies without any legislation, and also
getting a clear sense by affected people who often do not know
what the regulations are, let alone have input until the
regulations are imposed on them.
So simplicity, clarity, and publicity would be watch words.
And the beauty of this is it is not just realizing democracy in
a way we have not been able to do before. That is great. But
also great is we have regulations that will be much better.
They will be much more suited to people's actual situations.
Chairman Lieberman. Exactly, because they will reflect
their circumstances. I learned long ago when I was in the State
Legislature in Connecticut, and it relates to anybody in
government, that we come to government with our own
experiences, obviously, inherently limited, and then we are
asked, in our case, to legislate, and you are now asked to
regulate across the widest array of human experience.
It struck me that it pays to listen to the people who
happen to live in the area or field that you are regulating,
and the Internet does give us an opportunity to do that better
than we ever have before. Moving on, talking about my State
Senate career, you wrote an article called, ``Is OSHA
Constitutional?''
On a particularly strange day in my legislative career at a
hearing on the Occupational Safety and Health Administration
(OSHA), I raised the question, is OSHA kosher? So I want to
thank you for giving me the opportunity to remember that day.
But I go on more seriously. You wrote a similarly titled
article awhile back, about a decade ago, ``Is the Clean Air Act
Constitutional?'' So I wanted to ask you to explain your view
about the constitutionality of these landmark statutes to
protect public health and the environment.
Mr. Sunstein. Thank you for that. The conclusion of the
Clean Air Act paper was the Clean Air Act is constitutional.
The conclusion of the OSHA paper was OSHA is constitutional,
and at first glance, this would be the most boring and obvious
conclusion a law professor could ever reach.
What inspired the two articles was a set of decisions
within the D.C. Circuit, the Court of Appeals, that actually
raised questions about both statutes. I tried to say the Clean
Air Act was constitutional and the D.C. Circuit should not have
suggested otherwise. The Supreme Court eventually agreed with
that.
The OSHA question is newly alive because of some D.C.
Circuit decisions from the 1990s, which upheld the statute with
a little bit of difficulty. There are some intervening Supreme
Court cases that raise questions about those decisions,
upholding the statute.
The point of my article was to say here are some routes by
which it could be held constitutional. So both are
constitutional.
Chairman Lieberman. Thank you. This leads, of course, to
the question of whether you would feel it was within your
purview as Administrator of OIRA to apply a constitutional test
of your own to regulations or whether this would be dependent,
as it was in the articles you have cited, on court decisions?
Mr. Sunstein. I would feel it would be my obligation to
refer the matter to the Department of Justice.
Chairman Lieberman. If you had a constitutional question?
Mr. Sunstein. Yes.
Chairman Lieberman. Thank you. Senator Collins.
Senator Collins. Thank you, Mr. Chairman. I, too, want to
follow-up on the privacy issues that my two colleagues have
raised and that I raised in my opening statement.
I certainly agree with you that the Privacy Act of 1974 has
withstood the test of time amazingly well. I believe that parts
of it still nevertheless need to be updated, but when you
consider that it was written before the Information Age, the
basic principles of the Act still very much apply.
But no matter how good our laws are, if there are not
individuals in government who are charged with implementing
them, overseeing them, they tend to not be enforced as
effectively as they should be. I mentioned in my opening
statement that back in 2001, there was a chief counselor for
privacy within OIRA. Nowadays, the privacy officer of the
Department of Homeland Security tends to be the premiere
privacy expert in the Federal Government, in part because of
the many challenges that the Department faces in weighing
privacy concerns.
But really there should be someone within OMB who has that
specific privacy portfolio. As I have mentioned in the past,
the chief counselor for privacy was part of OIRA. Do you intend
to reestablish that position if you are confirmed?
Mr. Sunstein. I intend to look very carefully at what
institutional structure is best suited to the protection of
privacy. I agree very much that accountability on any matter,
emphatically including privacy, requires a person whose
responsibility is to provide that protection.
My understanding is that there is a notice out right now to
hire someone whose sole job at OIRA would be to protect
privacy. My understanding also is that there are several people
at OIRA who are spending a great deal of time on this issue,
but I very much take your point that there is a question
whether these are adequate ways of providing what was provided
in the past.
Senator Collins. In my previous round of questions, I
mentioned my concern about a proposal that you put forth to
extend OIRA to independent regulatory agencies. Let me balance
that now by telling you a proposal you put forth that I think
is an excellent idea, and that is to require agencies to
explain why they are moving ahead with the regulation in a case
where the costs outweigh the benefits as shown by a cost-
benefit analysis.
Do you believe that currently agencies provide adequate
justification for moving forward on a regulation that has
failed the cost-benefit analysis?
Mr. Sunstein. It is a crucial question: Whether, when
agencies are imposing big burdens on business and they are not
providing big benefits to people, they are adequately
explaining themselves. I do not have a general conclusion to
that because I have not done a systematic study of the cases in
which agencies proceed, even when the costs are higher than the
benefits.
What I would say is for the future, and this is very much
consistent with the existing executive order, agencies would
have to say something, such as the law requires us to proceed
or there are soft variables that matter. So I am not sure what
the right generalization is about past practice, but I can tell
you for the future, to have a full explanation is part of
ensuring accountability.
Senator Collins. Do you expect that the President is going
to issue a new executive order?
Mr. Sunstein. I do not know the answer to that. I do know
that he has asked for recommendations, but whether he is going
to issue a new executive order, I do not know.
Senator Collins. And have you given recommendations to the
White House in this area?
Mr. Sunstein. As a senior advisor to the Director, I have
shared thoughts.
Senator Collins. And are they along the lines of the
recommendations that you have made in some of your academic
writings?
Mr. Sunstein. I would say there is some but very incomplete
overlap between my recommendations as a temporary advisor and
my academic thinking.
Senator Collins. Would you like to share those
recommendations with us?
Mr. Sunstein. I think if the Director would like to tell
you----
Senator Collins. Very good. I did not really expect you to
say yes to that, I must say. I am also interested in proposals
that you have to increase the transparency of decisionmaking in
the regulation area. It is very frustrating to many of my
constituents that the rulemaking process appears to be so
opaque and so difficult and that ironically the prohibitions
against third-party communications, or just discussions in some
ways, although they are necessary to guard the integrity of the
process, impede the process because it seems to many of my
constituents that their concerns are not heard, that they go
into this black hole.
And it is not just everyday citizens. The governor and
State officials feel that way in some cases as well. We are
going through this now with an issue involving the listing of
the Atlantic salmon. It is frustrating not to be able to
communicate fully all that the State of Maine is doing to
restore habitat for the salmon.
Do you have any recommendations on how we can make
rulemaking more transparent, more accessible?
Mr. Sunstein. I do. An open door may be, to some extent, an
open virtual door, but also an open real door on the part of
OIRA and its Administrator makes a great deal of sense for your
reason and the Chairman's that often affected stakeholders know
things that the agency and OIRA do not.
So participation as a foundation of rulemaking, as a way of
ensuring transparency, that would be first. Second, no secret
or backroom participation, open in public in the sense that if
OIRA is meeting with people, then people get to know about
that; that would be the starting point.
Senator Collins. Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins. Do you have
any further questions?
Senator Collins. I do not.
Chairman Lieberman. Neither do I, so Mr. Sunstein, thanks
very much for your testimony today. Thanks for your willingness
to come into Federal public service. We congratulate you and
your wife for the birth of the baby and thank her for her
service as well.
I cannot end without noting the presence of your friend and
mine, Leon Wieseltier, long-term literary editor of The New
Republic. Seeing him out there, and I apologize for even
entering this in the record, reminded me of the scene from
``The Godfather'' movie where the witness is about to spill the
beans on the organized crime family and they bring his brother
from Italy who he has not seen in a long time, and he clams up.
In this case, he is here looking directly over your
shoulder just to make sure that I do the right thing. I
certainly do intend to support your nomination.
We are going to keep the record open until 12 noon tomorrow
for the submission of any written questions or statements. I
hope to be able to move your nomination as quickly as we can
from the Committee out to the Senate floor for consideration.
Obviously that depends on the inclinations of the other Members
of the Committee.
But again, it has been a very substantive and interesting
morning, and I thank you for your willingness to serve. The
hearing is adjourned.
[Whereupon, at 11:10 a.m., the Committee was adjourned.]
A P P E N D I X
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