The Sunstein Also Rises

The Senate may vote as soon as today on the nomination of noted and oft-cited law professor Cass Sunstein to head the White House Office of Information and Regulatory Affairs, an appointment that began with the opposition of liberal academics and the support of conservative intellectuals that in recent weeks has met with the opposition of Republican lawmakers and conservative media.

"Cass Sunstein is one of the most prolific and important legal scholars of our times," said Kenneth Baer, a spokesman for the White House Office of Management and Budget, "and that is why he enjoys support from across the political spectrum. We're confident that he'll be confirmed."

As with others from the world of academia who have spent decades pondering provocative questions and then attempt to enter the world of politics (an issue we've raised before with Zeke Emanuel, among others), Sunstein now finds political opponents from the right and left exploring and mining his past papers and speeches for evidence he's with the other side.

"I don’t believe he should be appointed to anything," Rep. Dan Boren, D-Okla., said yesterday, according to the Tulsa World, referring to Sunstein's advocacy for animal rights. Boren's position is not shared by the American Farm Bureau Federation, which recently advocated for Sunstein's confirmation to the position, which is responsible for managing the federal regulatory process.

When Sunstein was first nominated, it was the Left that looked like it would give him the most trouble.

Liberal academics with the Center for Progressive Reform issued a white paper asserting that "Sunstein’s long track record on regulatory issues is decidedly conservative." They took issue with Sunstein's faith in "cost-benefit analysis" which in their view "relies on overstated cost estimates (often from industry sources), and drastically understated estimates of regulatory benefits. Indeed, some benefits defy monetization altogether and are simply dropped from the equation, yielding results that are incomplete and distorted."

Frank O’Donnell, president of Clean Air Watch, wrote a blog for the liberal website ThinkProgress asked "How would progressives respond if President Bush nominated as 'regulatory czar'" someone who called for "changing the Clean Air Act to require a balancing of costs and benefits in setting national clean air standards – a fundamental weakening long sought by big polluters" and "Urged the federal government to devalue senior citizens in calculating the benefits of federal regulations because 'A program that saves young people produces more welfare than one that saves old people.'"

O'Donnell wrote that "it’s actually Sunstein who has articulated the views noted above regarding clean air and the other issues involving costs, benefits and risk….He shouldn’t get a pass just because he was nominated by Obama."

CPR also warned that "Sunstein has long advocated for greater centralization of regulatory authority within the Executive Branch, particularly within OIRA." CPR expressed grave concerns about OIRA expanding, which would allow "a small group of economists in OIRA to displace the expertise of agency personnel on a wide variety of complex regulatory issues, ranging from air pollution to workplace safety."

Conversely, Sunstein's nomination has been backed by pro-business groups like the US. Chamber of Commerce, the National Association of Manufacturers, and conservatives such as Ambassador C. Boyden Gray and Eugene Scalia.

Instapundit's conservative blogger and University of Tennessee law professor Glenn Reynolds praised Sunstein's most recent book, "Nudge: Improving Decisions About Health, Wealth, and Happiness, which, Reynolds wrote, "explored ways in which regulation could be made less heavyhanded, encouraging people to behave in particular ways while allowing them to pursue a different path if they so chose. Sunstein characterizes this approach as 'libertarian paternalism'–a term that raised some hackles among libertarians–but it's clearly a departure from the dirigiste approaches of the past. This is not your father's regulatory state."

Conservative blogger Eugene Volokh wrote "Sunstein is brilliant, thoughtful, and ideologically probably as good as 'libertarianish/conservativish' people like me can hope for from the new administration." and the Wall Street Journal's conservative editorial board called the appointment "a promising sign."

The Journal heralded an op-ed Sunstein wrote for the paper in which he wrote: "Credit regulation raises immense challenges, and there is a serious danger that, in light of the current crisis, government regulators will overreact. The fundamental line of defense should be improving market competition, not eliminating it. And to improve competition, transparency is the place to start."

Wrote the Journal: "Odds are that you've never heard of the Office of Information and Regulatory Affairs, but it plays a central role within the executive branch in vetting regulatory proposals. Mr. Sunstein brings important qualifications to that role, and Mr. Obama has made a savvy choice in putting him there."

Sunstein and the White House lobbied liberal and progressive groups. Then, over the Summer, Sunstein's nomination was held up by two Senate Republicans — Saxby Chambliss, R-Georgia, and John Cornyn, R-Texas — concerned about his position on hunting, given his past academic work on the rights of animals.

Sunstein last year in a paper for the Harvard Law Review wrote that the Second Amendment has "a unique status in contemporary American culture; it has been recognized as a right, and with great intensity, by citizens and politicians of both parties. An interpretation of the Founding document that denied the right would likely create forms of public outrage, political polarization, and social disruption that have not been seen in many decades. Out of respect for the intensely felt convictions of millions of Americans, and with concern for the risks of potential disruption, perhaps the Court should hesitate before denying the right."

So the issue was not one of Sunstein's position on guns as much as it was his position on animals.

In 2007, Sunstein participated at the Annual Harvard Review of Philosophy Lecture on animals in ethics and the law in which he discussed the incongruence between public opinion on cruelty to animals and what is permissible by law. Sunstein said, "the striking phenomenon is that our practices violate our own moral commitments" and said that "two-thirds of Americans recently agreed with the following statement: 'An animal's right to live free of suffering should be just as important as a person's right to live free of suffering.' It may be that that doesn't full capture people's reflective judgments, but 91% of Americans recently urged that the Department of Agriculture should be empowered" to alleviate the suffering of animals.

Sunstein said that animal rights activists could push changes in current animal anti-cruelty laws "to give affected persons, interested persons, those who have some sort of connection to the animals a right to sue either for damages or for injunction." He also discussed filling certain gaps, saying, "we ought to ban hunting, I suggest, if there isn't a purpose other than sport and fun. That should be against the law, it's time now."

These were thoughts he'd written about in "The Rights of Animals: A Very Short Primer," in which he said the "law should impose further regulation on hunting, scientific experiments, entertainment, and (above all) farming to ensure against unnecessary animal suffering."

"If we focus on suffering, as I believe that we should, it is not necessarily impermissible to kill animals and use them for food; but it is entirely impermissible to be indifferent to their interests while they are alive," Sunstein wrote. "So too for other animals in farms, even or perhaps especially if they are being used for the benefit of human beings. If sheep are going to be used to create clothing, their conditions must be conducive to their welfare. We might ban hunting altogether, at least if its sole purpose is human recreation. (Should animals be hunted and killed simply because people enjoy hunting and killing them? The issue might be different if hunting and killing could be justified as having important functions, such as control of populations or protection of human beings against animal violence.)"

But Cornyn and Chambliss ultimately relented. Sunstein wrote to Cornyn that "the Second Amendment creates an individual right to bear arms for purposes of self-defense and hunting," and to Chambliss that "If confirmed, I certainly would not use my position at OIRA to promote animal standing in civil litigation, such standing would indeed be an intolerable burden on farmers, ranchers and hunters."

Wrote the American Farm Bureau Federation in a September 1 statement:  "Like others in the agricultural community, we were concerned about reports related to Mr. Sunstein’s views on animal rights and the impact that could occur should such views be reflected in federal regulations. We have, however, had the opportunity to discuss this subject in person with Mr. Sunstein. He has been candid, forthright and very open about how he views his role in OIRA. He has shared his perspective on the issues in question and stressed that he would not use his position to undermine federal law or further policies inconsistent with congressional directives."

A spokesman for the Office of Management and Budget said that "Cass has been very clear in his writing as well as in his testimony to the Senate Governmental Affairs Committee that he is a strong believer in the 2nd Amendment."

Sunstein has been defended on one charge — the false one that Sunstein advocated taking people's organs without their consent — by Ed Morrissey at the conservative website HotAir, who put Sunstein's recommendation in the context of the organ donation debate and concluded "Sunstein was not offering a radical notion, but one firmly in the mainstream of organ-donation reform."

Sunstein in his book "Nudge" discussed the debate over how to provide more organs for the population at large, noting the proposal that the system should be changed from the government presuming a denial of organ donation permission to a presumption of consent unless otherwise indicated. One study from 2003 indicated that 42 percent of the population actively seek to be organ donors, while under the "presumed consent" system only 18 percent opt out.

Sunstein and his co-author, Richard Thaler, noted that "presumed consent" is "a hard sell politically. More than a few people object to the idea of ‘presuming’ anything when it comes to such a sensitive matter." Thus the authors suggest that drivers be forced to make a choice. "With mandated choice, renewal of your driver’s license would be accompanied by a requirement that you check a box stating your organ donation preferences. Your application would not be accepted unless you had checked one of the boxes.”

This would be accompanied by a public education campaign as the state of Illinois has done, explaining the problem and trying to make organ donation more popular.

In her review of “Nudge," the New Yorker's Elizabeth Kolbert stated that Sunstein and Thaler seem to hold "the belief that, faced with certain options, people will consistently make the wrong choice. Therefore, they argue, people should be offered options that work with, rather than against, their unreasoning tendencies. These foolish-proof choices they label 'nudges.'"

Examples: "To discourage credit-card debt, for instance, Thaler and Sunstein recommend that cardholders receive annual statements detailing how much they have already squandered in late fees and interest. To encourage energy conservation, they propose that new cars come with stickers showing how many dollars’ worth of gasoline they are likely to burn through in five years of driving."

The White House is convinced that Sunstein will be confirmed, so it may be that some nudges might be coming your way soon.

- jpt