So Sunstein's record looked like a target-rich environment. Republicans struggled to hit the targets. They had a few problems, the chief one being the unflappability of the witness. His dodges were purely logical—if he couldn't promise something, he wouldn't. And a related problem was that the questioners were not always sure what Sunstein controlled.
"When the Department of Interior came out with the moratorium on drilling," asked Rep. Steve Scalise, R-La., "did you review that?"
"No," said Sunstein. "That wasn't a regulatory action within the meaning of Order 12866," the executive order that allows Sunstein's office to review draft regulations.
Scalise tried again. "At least it wasn't your feeling that it wasn't?"
"No," said Sunstein. "It doesn't fit within the definition of a significant regulatory action."
On talk radio, it's assumed that Sunstein's writings on free speech and conspiracy theories have revealed his plans to silence critics. But no one successfully needled Sunstein over the claims and arguments he'd made in his academic work. "My academic writing isn't relevant to my job," he said, after Rep. Phil Gingrey, R-Ga., attempted to nail him down on whether he'd regulate the Internet—a major cause of talk radio and Glenn Beckian panic. "I'm on the record opposing the fairness doctrine."
Freshman Rep. Cory Gardner, R-Colo., tried to broaden the inquiry. "What am I supposed to tell my constituents," he asked, "when they come to me and say 'These regulations are costing me jobs?'"
"There are two sets of concerns," said Sunstein. "One is about fear of what's coming. One is trouble caused by what's there."
"So they're just fearful?"
"No, that's not all," said Sunstein. "I'm just using your words. There is a legitimate fear that regulation can be harmful."
Gardner prodded Sunstein to commit, "in this time of economic crisis," not to defend any regulation that cost any job. He demanded a yes-or-no answer.
"A yes answer would be preposterous," said Sunstein. "If there's a regulation that's saving 10,000 lives and costing one job, it's worth it."
This back-and-forth lasted for four hours. There was no question that Sunstein couldn't answer with a koan or an assurance that he was on the same page as his questioner. Subcommittee Chairman Cliff Stearns, R-Fla., attempted to nail Sunstein by asking how many regulations would eventually be created by the health care bill. Sunstein passed. "One doesn't want to guess about the fact of a matter," he said, "if the fact is easy to find."
It didn't sound as if Sunstein had slipped up, but that was one of the pieces of the hearing Stearns would blast out to reporters hours later. He had found, he argued, that "rules issued by independent agencies, such as the FCC, CFTC, CPSC, FERC, FTC, SEC, FDIC, the Federal Reserve, the NRC, among others, have apparently been placed beyond the purview of the president's review."
But that was the mop-up. In the room, with Sunstein having done no obvious harm to his mission, Stearns wrapped up the four hours and walked down to the witness stand. Sunstein would come back in three months for another Q and A.
"Thanks for coming," he said to Sunstein. "We've got to get your boss in here."