Sunstein Confirmed as Obama's Regulatory Chief

On Sept. 10, the Senate confirmed Cass Sunstein as the administrator of the White House Office of Information and Regulatory Affairs (OIRA). Sunstein's nomination had been stalled by several senators who were concerned about the nominee's views on such issues as animal rights and citizens' right to bear arms. The Senate confirmed Sunstein by a 57-40 vote.

Sunstein is a distinguished academic and author who served on the University of Chicago Law School faculty with President Barack Obama, where they became friends. Sunstein subsequently moved to Harvard Law School. He worked briefly in the Department of Justice's Office of Legal Counsel before embarking on an academic career. He served as a special adviser to Peter Orszag, director of the White House Office of Management and Budget (OMB), while awaiting confirmation.

Obama nominated Sunstein April 20 to lead OIRA, the small office within OMB that reviews proposed and final regulations and paperwork requirements. The office also has responsibilities over federal statistics, dissemination of information, and general information resources management.

Sunstein's nomination was controversial. Obama's choice to lead this powerful but little-known office drew criticism [1] from the left because of Sunstein's ardent support of the use of cost-benefit analysis, an economic tool that has been used to weaken the stringency of federal regulations since the Reagan era. He has also argued for greater control by OIRA over aspects of the regulatory process at the expense of agency authority.

In his May 12 confirmation hearing [2] before the Senate Homeland Security and Governmental Affairs Committee, Sunstein portrayed himself as a pragmatist, one who would not use economic analysis as a straitjacket for regulations. In pledging to look to the law first for regulatory guidance, Sunstein tried to distance himself from past regulatory czars who strongly supported economic analysis to judge the adequacy of health, safety, and environmental rules. The committee approved Sunstein's nomination on May 20 with only one dissenting vote.

His confirmation by the full Senate, however, was stalled by a series of objections from conservatives to his views on animal rights and the Second Amendment. Sens. Saxby Chambliss (R-GA) and John Cornyn (R-TX) placed holds in sequential order to delay action on the nomination because of Sunstein’s controversial views that animals should enjoy meaningful legal rights, including the right to sue. Although Sunstein worked to assuage the concerns of those who raised objections to his views, these and subsequent holds kept the Senate from debating the nomination before the chamber's August recess.

Facing what looked like a series of rotating holds by Republican senators, Senate Majority Leader Harry Reid (D-NV) scheduled a cloture vote – a Senate procedural motion to end the delaying tactics – upon the Senate's return in September. On Sept. 9, senators invoked cloture in a 63-35 vote, formally ending debate on the nomination. They voted to confirm Sunstein as administrator the following day.

The agenda for the new OIRA administrator is daunting. Obama pledged during the presidential campaign to address both financial and social regulatory issues and to overhaul the way government regulates these sectors. OMB Watch and many others have argued for years that the current regulatory process is badly broken. It is characterized by political interference, substantial delay, biased procedures, too little agency discretion, science superseded by politics, and far too few resources for agencies to meet their legal mandates. (Summaries of OMB Watch's recommendations for reforming the regulatory process are on our website [3].)

The administration has already begun to address some problems. OIRA conducted a process by which agencies and the public (for the first time) could submit comments about how to reform the executive order that defines much of the current process by which regulations are developed and reviewed. (Read the comments submitted here [4].)

It has also encouraged the public to participate in improving regulatory decision making by publicly vetting changes to the government's e-rulemaking platform, Regulations.gov [5].

In addition to regulatory reform, the administration has pledged to make science a centerpiece of its decision making, to make the administration more transparent than any other, and to change the government's approach to preempting state regulatory authority.

In OMB Watch's statement [6] on Sunstein's confirmation, Executive Director Gary D. Bass said, "We expect Cass Sunstein to oversee a regulatory system that puts the public first by allowing federal agencies to write and enforce the regulations that protect us in our everyday lives," and that OMB Watch looks forward to working with the staff at OIRA "to promote a regulatory agenda that actively works to protect the public."