Nudge on Trial
Cass Sunstein defends the White House against a Republican attack.
Cass Sunstein arrived early for his inquisition. Walking into the House Energy and Commerce Committee hearing room about 20 minutes before its members did, he doffed his coat, chatted with staff—who politely kept him away from the press—and sat at a table with only a few notes. This was his umpteenth appearance before a congressional committee, but his first since he took over the Office of Information and Regulatory Affairs and the GOP took over the House.
At 10 a.m., the members of the House Oversight and Investigations Subcommittee took their places. This was a bigger deal for them than it was for Sunstein. The Republican members were at war with the administration over EPA regulations, mining regulations, the moratorium on offshore oil drilling, and health care reform. Republicans plan to make 2011 all about regulation and how to roll it back. After winning the House and winning more seats in the Senate, they fretted openly about the end-runs the executive branch could do around them—the EPA using the Clean Air Act, say, as the basis of regulation that supersedes looser environmental laws in the states. And Sunstein's job is to review new rules developed by the executive branch.
Target duly painted, the GOP went to work. On Jan. 18, President Obama had issued an executive order commanding agencies to find the "best, most innovative, and least burdensome tools for achieving regulatory ends." It was unspecific, but it echoed something Republicans had once suggested for stripping back regulations that, in the parlance of the moment, Killed American Jobs.
"There has been an explosion of regulation and regulations issued in the first years of the Obama administration," said Rep. Joe Barton, R-Tex. "Quite frankly, I didn't see that your organization has done anything to slow this down. I don't see that you've done anything to do what the new executive order says."
"If I may discuss the idea of explosion," said Sunstein. "The number of regulations issued in the last two years is approximately the same as the number issued in the last two years of the Bush administration."
This was a bit much for Barton. "Just the regulations issued under the new health care law are in the thousands!" he said.
"The number that have been issued in the last months are not in the thousands," said Sunstein. "In terms of finalized economically significant rules, I don't think the data supports the claim—"
"Well, what's the answer to the question?" snapped Barton. "Is this new executive order going to require a determination by your group, your agency, of the net job gain or loss of past, current, and new regulations?"
"We will be focusing very much on job loss as a result of regulation."
"So the answer is yes?"
"Well, there are some technical reasons. It's complicated."
"So the answer is no?"
"Well, I'm afraid that the answer to this one, uniquely thus far, is neither yes nor no."
"Well," said an exasperated Barton, who had warned the room that he was late for a radio interview, "that's a very evasive answer. The president is going to give you an A-plus for evading a straight yes-or-no question."
Under Republican presidents, OIRA was a place where regulations went to die. Between 2,000 and 3,000 regulations were reviewed annually under Ronald Reagan. That was cut to around 500 annual reviews under Bill Clinton, and OIRA has not been quite so muscular since then.
But there was no better way for Republicans to start a conversation about this than by grilling Sunstein. His nomination was floated two years ago, in the weeks before Obama was sworn in. It was controversial only to liberals, who worried that the president was grooming a friend (both taught law at the University of Chicago) for the Supreme Court. Unacceptable: Sunstein was an iconoclast who believed in "libertarian paternalism," and in cost-benefit analyses that could, theoretically, scuttle regulation.
In the march to confirmation, opposition switched to the other side. It was conservatives who were reading Sunstein's many books—he published two between being nominated and being confirmed—and identified a "regulatory czar" who had to be stopped. A typical headline from this period was "Obama Regulation Czar Advocated Removing People's Organs Without Explicit Consent." Glenn Beck has, to date, mentioned Sunstein on 99 episodes of his show. The last instance was on Monday, when he credited the OIRA head with "165 new FDA regulations" and cried that the author of Nudge had "called his regulatory czar job his dream job!"
David Weigel is a Slate political reporter. You can reach him at firstname.lastname@example.org, or tweet at him @daveweigel.
Photograph of Cass Sunstein by Matthew W. Hutchins, Harvard Law Record.