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.

From The White House:

President Obama Announces Another Key OMB Post

WASHINGTON – Today, President Barack Obama nominated Cass R. Sunstein to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget.

President Obama said, “As one of America’s leading constitutional scholars, Cass Sunstein has distinguished himself in a range of fields, including administrative law and policy, environmental law, and behavioral economics.  He is uniquely qualified to lead my Administration’s regulatory reform agenda at this crucial stage in our history. Cass is not only a valued advisor, he is a dear friend and I am proud to have him on my team.”

A very good appointment from the President. Sunstein is a keen thinker on many issues, obviously, but we especially appreciate his perspective on the precautionary principle. This Boston Globe column gives a good summary.

In other nomination news, the Washington Post’s Al Kamen notes that when Gov. Kathleen Sebelius takes over as Secretary of Health and Human Services, “there will finally be one confirmed Obama appointee at each agency.”

In that distinguished grouping we find Education Secretary Arne Duncan, Transportation Secretary Ray LaHood, Housing and Urban Development Secretary Shaun Donovan, Interior Secretary Ken Salazar, and Labor Secretary Hilda Solis. Energy Secretary Steven Chu and Treasury Secretary Timothy F. Geithner each have but one other confirmed nominee to talk to, according to data compiled by Clara Janis of New York University’s Wagner School of Public Service.

The White House has really stepped up the nominations this week, starting with this list.

UPDATE (3:40 p.m.): OMB Director Peter Orzag welcomes Sunstein to the shop, citing his influence on behavior economics:

Cass will be able to shape a regulatory structure that is rooted in commonsense to achieve the values and ends that the President and the American people seek. For years, Cass has been that rare specimen – an academic whose writing and thinking has had a real effect on policymakers. Indeed, Cass is the most cited law professor on any faculty in the United States. Now, Cass is entering the arena, and I am eager to work with him to implement the President’s regulatory reform agenda.

The Center for Progressive Reform — boy, that’s a scary-sounding group — has released a paper by law professors attacking Cass Sunstein, President Obama’s nominee to head the Office of Information and Regulatory Affairs. OIRA is the section of the Office of Management and Budget that provides White House review and coordination, theoretically, for executive branch agencies.

In the publication, “Reinvigorating Protection of Health, Safety, and the Environment: The Choices Facing Cass Sunstein,” the reforming progressive identify the following “concerns” about Sunstein, a professor of law at Harvard:

Sunstein is a stout supporter of cost-benefit analysis as a primary tool for assessing regulations, despite its imprecision and the ease with which it is manipulated to achieve preferred policy outcomes;

He supports such cost-benefit approaches as the widely condemned “senior discount” method for undervaluing the lives of seniors in cost-benefit analyses, an approach even the Bush Administration was forced to disown;

He rejects the “precautionary principle” as a basis for regulating, thus ensuring that dangerous pollutants and products will be given the “benefit of the doubt,” rather than well-grounded concerns about health and safety;

He supports the centralization of authority over regulatory decisions in the White House – OIRA in particular, even though Congress delegated the exercise of expert judgment to the regulatory agencies, not to OIRA’s staff economists in the White House; and

He has written that the Occupational Safety and Health Administration might be unconstitutional.

We admire his stoutness and marvel at the idea that someone’s belief in cost-benefit analysis should be controversial. And he rejects the precautionary principle? Good.

The progressivistic reformators were big supporters of the Consumer Product Safety Improvement Act. How’s that working out nowadays?

Addendum: Walter Olson points to a claim from the centgressives that warrants a dropped-jaw: “It is difficult to think of a single public health or environmental threat that with the benefit of additional research has not proven even more dangerous over time.”

Right. Here’s a headline from this week: “Panel Finds Vaccines With Mercury Didn’t Cause Autism”

Iain Murray of the free-market think tank, the Competitive Enterprise Institute, considers Cass Sunstein a good pick to head the Office of Information and Regulatory Affairs at OMB (see earlier post). That’s an encouraging endorsement to those in the business community worried by the possibility of agenda-driven regulatory overkill by an Obama Administration.

From The Corner, National Review Online:

A Good Pick [Iain Murray]

I was cheered this morning by the news that Cass Sunstein of the University of Chicago is to be the next head of OIRA, the Office of Information and Regulatory Affairs. While not someone a libertarian conservative would necessarily appoint, he is possibly the best choice possible that Obama could have made, and his friendship with the President-elect suggests he will have some power. In particular, Prof. Sunstein has been a very strong opponent of the Precautionary Principle, which is the rock upon which many environmental regulatory initiatives are built. He also called CEI’s litigation to draw attention to the fatal consequences of CAFE regulation “the principal case involving the issue of health-health tradeoffs.”

Todd Zywicki and Glenn Reynolds also applaud the appointment.

UPDATE (1:25 p.m.): A follow-up post by Murray reminds us that Sunstein is a prominent and effective critic of the “precautionary principle,” the demand that every product be proved safe before entering the market. The plaintiff’s bar and their allies among “consumer activists” promote the principle in order to burden the private sector with more costs and potential liability, but it poses an impossible standard to meet: Prove that your product is NOT dangerous.

Sunstein has written a book on the topic, “Laws of Fear: Beyond the Precautionary Principle.” For the short version, see his Boston Globe column last July, “Throwing precaution to the wind.”

From today’s Washington Post, “Obama to Name Lawyer Friend To Regulatory Affairs Position“:

President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation’s top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said.

Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation’s regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis.

In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The Office of Information and Regulatory Affairs can do good things in imposing discipline and regulatory restraint on the executive branch agencies, examining the costs and unintended consequences that result from excessive rulemaking. For that reason, the Bush OIRA has been the subject of intense, often personalized criticism from the activist crowd who never met a regulation it didn’t like. (See below.)

We don’t know enough about Sunstein (Harvard CV) to offer an informed opinion, although he’s certainly mentioned prominently enough in legal publications and the blogosphere. In any case, we promise not to engage in the kind of smearing that was practiced against Susan Dudley and her predecessors.

Earlier posts (2007)

• WSJ: The Value of Susan Dudley’s Appointment
• Congratulations, Susan Dudley
• Noli Illegitimi Carborundum, Susan
• Experienced? Dispassionate? Analytical? How Dare She!

P.S. Speaking of Susan Dudley, she came to the Bush Administration from the Mercatus Center at George Mason University, a free-market oriented think thank. Indeed, George Mason University is often seen as an outpost of University of Chicago economics in northern Virginia. So President-elect Obama gives his economic stimulus speech today at GMU. How interesting.

Among the bad precedents set in the just-passed H.R. 4040, the consumer product litigation and regulation bill, was the banning of six classes of phthalates (a plastic softener), and more specifically the “temporary” banning of the three forms of the chemical pending a safety review by regulators and the National Academy of Sciences. No matter that previous safety reviews by European and American scientific panels saw no reasonable danger of using phthalates in toys and nail polish.

So we now have the policymaking branch of government venturing even deeper into regulatory matters, for which it is ill-prepared; Congress responds politically, not scientifically.

Even worse, this preemptive prohibition represents an embrace of the “precautionary principle,” a regulatory standard that demands any substance be first proved safe before it can be used.

• Sen. Dianne Feinstein (D-CA) said, “I believe this legislation is important as the first national effort to begin to exercise a precautionary principle in the use of chemicals as additives to products that affect human health. It is my belief that chemical additives should not be placed in products that can impact health adversely until they are tested and found to be benign.”
• Also, the Pew Charitable Trusts’ Environmental Health campaign issued a release upon the CPSC bill’s inclusion of a phthalates ban: “That Congress responded to this health threat in lieu of Federal agencies is yet another illustration of the broken regulatory system. A better approach is to require chemical manufacturers to prove their products are safe before exposing consumers to them. The Kid-Safe Chemical Act, introduced in May by Senator Frank Lautenberg (D-N.J.) and Representatives Hilda Solis (D-Calif.) and Henry Waxman (D-Calif.) would do just that by overhauling how the EPA handles the 80,000+ chemicals in consumer products. Phthalates in toys are just the tip of the iceberg.” 

Just the tip of the iceberg, eh? So let’s “temporarily” ban those 80,000+ chemicals, just to be safe.

Cass R. Sunstein, a prominent Harvard Law Professor, examined the precautionary principle in a recent Boston Globe column, “Throwing precaution to the wind“:

The central idea is simple: Avoid steps that will create a risk of harm. Until safety is established, be cautious; do not require unambiguous evidence. The principle, in its many variations, has come to play a powerful role in public debate, the development of government policy, and even international law. It can be, and has been, applied to countless problems, including nuclear power, cellphones, pesticides, electromagnetic fields, and even human cloning.

Yet the precautionary principle, for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks – and hence the principle bans what it simultaneously requires.

Indeed. What replaces phthalates? A substance with its own, perhaps unforeseen risks? Or is there no replacement, meaning some products will no longer be available in a malleable form? “Oh, we used to have a vinyl product that would have been perfect for that use, really durable, but well, Congress banned it.”

And if you embrace the precautionary principle, then cost can never be considered. The result is the preclusion of any sort of cost-benefit analysis.

As Sunstein says, the precautionary appeal is deeply incoherent. It asks for proof of a negative, an impossible standard to meet but one that offers endless opportunity for grandstanding and political attacks.