POLITICS JANUARY 27, 2011
Cliff Stearns wanted answers. Just not, mind you, complicated answers. Stearns, the Florida Republican who now chairs the House energy and commerce oversight subcommittee, decided to hold a hearing Wednesday on Barack Obama’s promise to snip away outdated federal regulations. In theory, Stearns had the ideal witness: Cass Sunstein, the White House’s "regulatory czar," who, in his past life as a law professor (and frequent TNR contributor), seemed like he published a new book on subjects like cost-benefit analysis every few months. Surely this was the guy you wanted explaining Obama's plans to streamline government. Yet Stearns didn't seem terribly interested in Sunstein's nuanced views on the subject.
“To make this as productive as possible, when you're answering questions, if you could just answer yes or no,” Stearns began. He went on to question why Obama’s new approach to regulation would allow federal agencies to consider factors like “human dignity” and “fairness and distributive impacts” in crafting their rules. (As Eric Posner has suggested, this criteria may give the Obama administration some wiggle room, so that it can keep regulations with hard-to-quantify benefits for, say, human health or the environment.) Isn’t the latter, Stearns wondered, just a code word for income redistribution?
Sunstein looked all set to deliver a lecture on the topic: “That wasn’t our…”
“OK, OK, you’re saying no, OK,” Stearns interrupted. He moved on to another question. “But won’t these standards make it difficult to have any rational cost-benefit analysis?” It was a fair question—after all, this is part of what distinguishes Obama's approach to regulation from Reagan's—and plenty of onlookers would've loved to hear Sunstein's response.
“That would be a no…” Sunstein began.
“OK, OK,” Stearns cut him off again. The chairman then noted that, at this point in 2003, the Bush administration had rejected 19 regulations by federal agencies, while the Obama administration has rejected none. Sunstein tried to explain: “I’d say yes, I’m aware of that. But would you like an elaboration?” Stearns didn't “I think when the Democrats have a chance [to ask questions], then you can have an elaboration.” A clearly exasperated Sunstein could barely get a word in, and, at the end of the interrogation, his only quip was, “Thank you for enabling me to be brief.”
And so began the House Republicans’ war on federal regulations. If Obama thought his Wall Street Journal op-ed—the one where he promised to subject government to greater scrutiny and “remove outdated regulations that stifle job creation”—would garner any Republican love, he was wrong. On the energy and commerce subcommittee, at least, few of the GOP members were interested in understanding the finer points of the new review. Mostly, they just wanted to beat up on regulations they didn't like—never mind what the nerdy law professor sitting before them had to say about it.
When Joe Barton, a Texas Republican, got his chance to ask questions, Sunstein tried to explain that the Obama administration hasn’t issued that many more new regulations in its first two years than the previous Bush administration did in its last two. Barton mused that the new health care law must have created "thousands" of new regulations. When Sunstein tried to suggest that "I don't think the data supports that claim," Barton cut him off. Instead, he wanted to know if Sunstein agreed that the EPA’s “endangerment finding”—the one declaring that global warming poses a threat to human health and welfare—will cost millions of jobs and billions of dollars. Sunstein patiently explained that the endangerment finding isn’t, in itself, a regulation (it’s only a scientific determination), and that the EPA is trying to “minimize the burdens” of any carbon regulations they issue. Barton wasn't impressed.
Later on in the hearing, Sunstein actually did get a chance to delve into the details of Obama’s approach to regulation. Oklahoma Republican John Sullivan asked him to explain the whole bit about how agencies must consider equity and human dignity: “Say, for example, your cost-benefit tests impose $100 billion in costs to the economy but supposedly result in $1 trillion in human dignity. What does this mean?” Sunstein offered up, as an example, rules mandating wheelchair access, which may not always pass a strict economic cost-benefit test, but do have other virtues. Sullivan was unmoved: “I understand, but someone keeping their job is dignity, too.”
A similar exchange later on got to the core disagreement between the White House and the Republicans over regulations. Cory Gardner, a conservative freshman from Colorado, asked if, amid the current recession, Sunstein would oppose any regulations that hurt job growth. “A yes answer would be preposterous,” Sunstein replied. "If there's a regulation that's saving 10,000 lives and costing one job, it's worth it." That's not a pure hypothetical: There are plenty of new pollution rules coming down the pipe that, according to the EPA, would cost companies billions of dollars, but save the public even more money by reducing lung diseases and asthma attacks.
When Sunstein was first nominated to head up the Office of Information and Regulatory Affairs, a number of liberals fretted over the appointment. OIRA, after all, was the agency that, during the Reagan and Bush eras, chopped away at all sorts of regulations in the guise of "cost-benefit analysis." And Sunstein had long written in favor of this type of analysis, albeit a slightly more humane version. (Many liberals and environmentalists, by contrast, would prefer a "precautionary principle" approach to regulation—something Sunstein has explicitly argued against.) But it's clear that Sunstein is never going to find backers on the right (even if we exempt, say, the Glenn Beck followers who are convinced that Sunstein has plans to harvest our organs by force). At Wednesday's hearing, his similarities with, say, George W. Bush's first regulatory czar were of less interest than the fact that he's never run a business (as California Republican Brian Bilbray scornfully noted). On regulation, at least, Obama's going to have a hard time finding a middle ground that will mollify conservatives.
Bradford Plumer is an associate editor for The New Republic.