From today’s Washington Post, “Lautenberg bill seeks to overhaul U.S. chemical laws“:

After a year of working with environmental groups, government regulators and the chemical industry, a leading advocate for chemical regulation has devised a plan to remake the nation’s chemical laws — a 34-year-old set of regulations that all players agree is outmoded and ineffective.

The plan, contained in legislation that Sen. Frank Lautenberg (D-N.J.) is set to file Thursday, would require manufacturers to prove the safety of chemicals before they enter the marketplace. That would be a significant departure from current laws, which allow chemicals to be used unless the federal government can prove they cause harm to health or the environment.

Sounds like the full-blown introduction of the regulatory philosophy embodied in the precautionary principle, i.e., the requirement that you prove a negative — no harm — before any new product can enter the market.

It’s a philosophy that leads to a stagnant marketplace, unnecessary costs, and more litigation. If the principle takes hold in regulation, the dynamic United States will become even more like Europe. As a wise man has written:

Over the coming decades, the increasingly popular “precautionary principle” is likely to have a significant impact on policies all over the world. Applying this principle could lead to dramatic changes in decision making. Possible applications include climate change, genetically modified food, nuclear power, homeland security, new drug therapies, and even war.

We argue that the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all. In contrast, balancing costs against benefits can offer the foundation of a principled approach for making difficult decisions.

That’s Cass Sunstein, the abstract to his book, “The Precautionary Principle as a Basis for Decision Making.” Sunstein now holds the top regulatory review post in the Obama Administration, administrator of the Office of Information and Regulatory Affairs.

Sunstein has written the single best newspaper column explaining why the precautionary principle is a bad idea. “Throwing precaution to the wind” appeared in the July 13, 2008, Boston Globe.

CNSNews.com, April 8, “Sebelius: FDA Will Require Health Labels on Front of Food Packages“:

(CNSNews.com) — Secretary of Health and Human Services (HHS) Kathleen Sebelius said today that the Food and Drug Administration (FDA) is developing a new regulation  that would require food manufacturers to display nutritional information on the front of packages.
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This would mean that the front of a Wheaties box, for example, would display not only the smiling face of a famous athlete but also declare how many calories from fat are in each serving.
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“Busy shoppers will be able to go into grocery stores and have some easy to understand information on the front of packages giving them quick data on what is a healthier choice,” said Sebelius at the U.S. Capitol

Busy shoppers are so busy, they cannot be expected to turn the box around and look on the backside!

In a fortuitous coincidence, The Weekly Standard’s cover story this week is “Nudge Nudge, Wink Wink,” with a secondary headline, “Behavioral economics—the governing theory of Obama’s nanny state.” The article explores the Obama Administration’s desire to move away from cost-benefit analysis in regulation, an approach advocated in Cass Sunstein and Richard’s Thaler’s “Nudge.” In the magazine, Andrew Ferguson writes: 

Just as Obama is a liberal Democrat who, his admirers insist, isn’t really a liberal Democrat, behavioral economics proposes government regulation that, behavioral economists insist, isn’t really regulation. Under the influence of libertarian paternalism, regulators abandon their old roles as mini-commissars and become “choice architects,” arranging the everyday choices that members of the public face in such a way that they’ll naturally do the right thing—eat well, conserve energy, save more, drive safely, floss. In the literature the unavoidable example of this involves cafeteria food. Customers in line are more likely to choose food displayed at eye level; this concept, called “salience,” comes to us from behavioral science lab work. A wised-up cafeteria operator who wants his customers to eat healthier foods—at a high school, for example—will give prominent place to fresh fruits in the dessert line and push the Boston Cream Pie to the back. The kids won’t be forced to choose the fruit; the pie will still be there, if their pudgy little arms can reach it. 

Sunstein is now the head of President Obama’s Office of Information and Regulatory Affairs, the top regulatory review job in the Administration. Kathleen Sebelius, she’s head of the Department of Health and Human Services and its new Office of Salience Coordination.

More from CNSNews.com, and thanks to them for covering these issues, “Sebelius Says President Obama Has Instructed All Cabinet-Level Departments to Promote Public Health.”

By a vote of 57-40, the Senate has voted to confirm Cass Sunstein as administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget.

Congratulations.

We’ll post the roll call when it becomes available.

UPDATE: Here’s the roll call vote.

UPDATE (5:50 p.m.): Ah, now that he’s confirmed, the irrepressible Frank O’Donnell of Clean Air Watch can re-emerge to criticize him: “We hope that he won’t be an impediment, based on his past emphasis on cost-benefit analysis to the exclusion of other values. We hope he will look at other values, such as protecting the environment.”

Early on it was the left-leaning “consumer activist” and environmental groups who criticized Sunstein because he has written favorably on cost-benefit analysis. But they had been largely quiet since Glenn Beck took up his television cudgel against Sunstein based — loosely based — on his writings on animal rights and the Second Amendment.

As you can read in Senator Lieberman’s floor statement yesterday, the NAM, U.s. Chamber of Commerce and American Farm Bureau all thought Sunstein was a good nominee based on his views on regulation and acumen.

UPDATE (6 p.m.): Ah, more warm greetings from the left now that Sunstein’s been confirmed, this from an early and harsh critic, Rena I. Steinzor, a Maryland law professor and president of the Center for Progressive Reform. She writes at The Pump Handle blog, attacking the OIRA in a post:

We look forward to working with Cass Sunstein. And we also promise to stay in his face, making sure he remembers that his biggest challenge is to revive strong government protection of environmental quality, food, drug, and worker safety, and the control of climate change, not working to appease industry. We wish him luck and success.

Prior to the 63-35 cloture vote on the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs, the leaders of the Senate committee who held his confirmation hearing spoke in praise of the nominee. We’ve uploaded the relevant section of The Congressional Record here.

Senator Joe Lieberman (I-CT), chairman of the Senate Homeland Security and Government Affairs Committee, said:

Because Professor Sunstein is brilliant, creative, and prolific, he has written some things that are unconventional and, for some, controversial. I believe when asked about each of those matters he answered sincerely and fully and reassuringly.

For example, hunters were concerned about Professor Sunstein’s views on gun rights. He made very clear he believes the second amendment creates an individual right to possess guns for hunting and self-defense. To farmers and others concerned with his previous writings and comments on cruelty to animals, Professor Sunstein has said he would take no steps to promote litigation on behalf of animals, which some concluded was his position based on a provocative article he wrote, and that he has no plans, certainly, to regulate animal husbandry.

So this is a bright, thoughtful, creative man who, as a professor, has written some provocative, unconventional ideas. I suppose if one wanted to take advantage of them for one’s own purposes, to politicize, in some sense, or ideologize, in some sense, this nomination, one might seize on those. But at bottom, this is a person extraordinarily well qualified for this position.

Senator Susan Collins (R-ME), the ranking member, also found Sunstein well-qualified, and his former law student, Senator Amy Klobuchar (D-MN) spoke strongly in his favor.

Groups cited in his support were the U.S. Chamber of Commerce, American Farm Bureau and National Association of Manufacturers. Included in the record was the letter from the NAM’s Vice President for Infrastructure, Legal & Regulatory Policy, Rosario Palmieri:

DEAR CHAIRMAN LIEBERMAN AND RANKING MEMBER COLLINS: On behalf of the National Association of Manufacturers (NAM) and the millions of Americans our members employ, I am writing to offer our support for the confirmation of Cass Sunstein to be Administrator of the Office of Information & Regulatory Affairs (OIRA) in the Office of Management & Budget. Thank you for the swift work of your Committee to report Professor Sunstein favorably to the full Senate.

The NAM has supported nominees to OIRA under both Republican and Democratic presidents. The office plays a crucial role in agency prioritization, paperwork reduction, and regulatory review. President Obama said that the office offers a “dispassionate and analytical `second opinion’ on agency actions.” We believe that function is especially crucial during the economic crisis we face and to preserve high wage jobs from being lost due to unnecessary or thoughtless government action.

Cass Sunstein, in particular, is deserving of confirmation because of his keen intellect, expertise in the fields of administrative and environmental law, and his commitment to fair and reasoned deliberation of issues that will come before him. Under an Administrator Sunstein, all sides will be given a fair hearing and a real opportunity to impact the final analysis of an issue.

We stand ready to assist in ensuring confirmation by the full Senate of Cass Sunstein.

By a vote of 63-35 the Senate voted to invoke cloture on the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs. Here’s the roll call vote. Six Republicans voted aye: Bennett, Collins, Gregg, Lugar, Hatch, Snowe. Three Democrats voted nay: Lincoln and Pryor of Arkansas and Webb of Virginia.

The reliable Jake Tapper of ABC News writes that the Senate vote on Cass Sunstein to head the Office of Information and Regulatory Affairs could occur as soon as today (at least cloture, we think), and reports on the criticism and defenses in, “The Sunstein Also Rises.”

He notes that it was liberal groups like the Center for Progressive Reform and Clean Air Watch who initially attacked Sunstein after his nomination. Tapper also reports that Sunstein has responded to criticisms for his writings on animal rights and the Second Amendment.

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.”

Good report.

AFTERTHOUGHT: Although Tapper’s wrong to refer to Glenn Reynolds as a conservative. He’s a libertarian, mostly.

The Wall Street Journal, a consistently sharp critic of the Obama Administration, had this to say about Cass Sunstein, President Obama’s nominee to be head of the Office of Information and Regulatory Affairs in the OMB.

We still don’t know much about how Barack Obama plans to overhaul our financial regulatory system, but his reported appointment of Cass Sunstein to an important post is a promising sign.

Mr. Sunstein, a professor at Harvard Law School, is no conservative — far from it. But his writings on regulation and the herd mentality deserve a voice in the incoming Administration. From his new post as Administrator of the Office of Information and Regulatory Affairs inside the White House, he would have an opportunity to put into practice some of the ideas he has written about as an academic.

That was from a Jan. 10 editorial, “A Regulator With Promise — Really.” We were reminded of the editorial by a good piece today in the online Washington Independent by Dave Weigel, “Attacks on Sunstein Frustrate Conservative Fans.” Weigel reports:

Ilya Somin, a libertarian law professor at George Mason University, has written at the popular Volokh Conspiracy lawblog that “the czar system does circumvent the regular appointment and confirmation process.” Like Morrissey and Reynolds, he was critical of Beck and other Sunstein critics.

“Sunstein has nothing to do with the ‘czars’ or the problems with the ‘czars,’” said Somin. “The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in ‘Nudge.’ But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs].”

Senate Majority Leader Reid submitted a cloture motion before the Senate adjourned in August, and the Senate could vote on cloture today after the tourism bill debate. We posted on Sunstein’s many merits yesterday, arguing that the attacks against him are indiscriminate and off-base.

More from Glenn Reynolds, as well as Dave Kopel at the Volokh Conspiracy, who writes on Sunstein and the Seconde Amendment and comments, “I echo Ilya’s point ….that Sunstein has a much more pro-liberty perspective than anyone else that Obama might nominate to run the Office of Information and Regulatory Policy.”

The resignation of the White House’s green jobs adviser, Van Jones, for his radicalism and outrageous statements has been accompanied by a serious outbreak of anti-czardom, i.e., criticism of the Obama Administration for creating “czars” with great authority but no accountability. The fervor is most fearsome among the blogospheric right, and Glenn Beck on Fox has been impassioned on the topic.

It’s a good, legitimate issue, but too much of the criticism about czars has been indiscriminate and wrong. As Jonah Goldberg writes at National Review Online’s The Corner:

Politico has a report up that conservatives, flush with victory over Van Jones, are going to go after other czars. One problem, the three people it lists as next on the conservative list aren’t actually czars.

Cass Sunstein, President Obama’s nominee to head the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, is a prime example of this misrepresentation.  Nominee. He was nominated. He has to be confirmed by the U.S. Senate.

People who protest czars say the White House creates these ad hoc positions to evade the confirmation process. (Van Jones, for example.) But that doesn’t apply in the case of Sunstein, who underwent a confirmation hearing before the Senate Homeland Security and Government Affairs Committee on May 12 and was reported out on May 20. (Committee news release.) Cloture has been filed and we can expect a Senate floor vote this week.

And the head of OIRA is anything but an ad hoc position. The office is a statutory one within the Office of Management and Budget, created by Congress in the 1980 Paperwork Reduction Act to bring additional accountability to the writing of Executive Branch regulations. Here’s the language — it’s Chapter 35, paragraph 3503. OIRA serves important oversight and coordination duties as Congress specified in law.

So, the czarist critique of Sunstein is just wrong. One can certainly oppose his confirmation on the merits, but the efforts to paint him as a far-out animal rights, anti-gun or organ-harvesting extremist are only tangentially related to reality.  Sunstein’s prepared statement and testimony at his confirmation hearing addressed the first two issues persuasively, and this post today by Glenn Reynolds points out how Sunstein’s positions have been misrepresented on organ donation.

Sunstein was a respected law professor at the University of Chicago for many years before going to Harvard. (White House bio.) In his numerous books and writings, he has written some provocative things, but nothing beyond the pale (or remotely as offensive as Jones’ statements). There should be room for thinkers in government.

On the matter of regulation, he’s top-notch. In his book, “Laws of Fear: Beyond the Precautionary Principle,” Sunstein against against the incoherence of the precautionary principle, which holds that products or practices must be proved safe before they can be allowed into the marketplace. This Boston Globe column by Sunstein, “Throwing precaution to the wind,” summarizes his arguments well. Note:

The simplest problem with the precautionary principle is that regulation might well deprive society of significant benefits, and even produce a large number of deaths that would otherwise not occur. In some cases, government regulation eliminates the “opportunity benefits” of a process or activity, and thus threatens to cause preventable deaths.

Indeed, Sunstein’s appreciation for cost-benefit analysis has brought him of criticism from “consumer activists” who would love to overregulate economic activity into paralysis. The trial-lawyer backed groups are suspicious of him on the issue of federal preemption. Those are signs of his merit in our book.

So Cass Sunstein will not be a White House czar, he’s gone through a thorough confirmation hearing and approval by the Senate Homeland Security and Government Affairs Committee, and his writings show him to be a supporter of regulatory reason and the benefits of the free market.

Those attributes make him a poor target for the political attacks du jour. But they would make him a good head of the Office of Information and Regulatory Affairs.

UPDATE (7:38 p.m.): Welcome Instapundit readers, and thanks, Glenn. (And don’t miss his earlier post on the Sunstein nomination.)

A couple of posts about regulation over at Point of Law:

One comments on Sen. Chambliss’ hold on Cass Sunstein to head the Office of Information and Regulatory Affairs at the White House, which is not a good idea. The folks at OMB Watch seem to agree (and how often does that happen)?

The other notes an aggressive will to power by at least one new appointee at the Federal Trade Commission. Yes, the guy used to sue for Public Citizen is now running the FTC’s Bureau of Consumer Protection. Oh boy.

The Senate Committee on Homeland Security and Government Affairs held a relatively short (less than one-hour) confirmation hearing yesterday on the nomination of Harvard law professor — and friend of President Obama — Cass Sunstein to head the Office of Regulatory and Information Affairs. Some good discussion of regulatory policy, a few assurances about the Second Amendment and hunting (Sunstein supports them), and affirmations of the value of transparency.

Sen. Joe Lieberman of Connecticut, who chairs the committee, said he would vote for Sunstein’s nomination.

Prepared statements:

• Sunstein
• Lieberman
• Collins

 News and other things:

More…

• Wall Street Journal, “Businesses Encouraged by Regulatory Nominee“
• Statement by OMB Watch,  advocates for the REGULATORY STATE.
• Forbes op-ed, “Cass Sunstein For Regulation Czar,” by Richard L. Revesz, dean of New York University School of Law, and Michael A. Livermore, executive director of the Institute for Policy Integrity at New York University School of Law. Excerpt:

Sunstein’s remarks made clear that for him, cost-benefit analysis is not an intellectual exercise but a means to deliver greater benefits for the American public at lower costs. It should not be used as a hammer to beat back regulation, nor should it be discarded in favor of omnipotent federal agencies. Instead it should be employed judiciously to select regulatory approaches that achieve maximum net benefits for society.

This new approach to regulation could not come at a better time. The recent fiscal meltdown clarified the degree of our interconnectedness–a loose screw on Wall Street can send homes in Arizona to the foreclosure auction blocks; a blind eye in Washington can result in a tsunami of wet coal sludge in Tennessee. We can no longer afford to pay the social cost of letting corporations “self-regulate,” nor can we afford to place unnecessary burdens on already struggling businesses.