[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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        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

                                 ------                                
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

                              ----------                              


                         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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Sunstein appears in the Appendix 
on page 19.
---------------------------------------------------------------------------
    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.]



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