Obama pick comes under scrutiny


Harvard Law School professor Cass R. Sunstein, a widely admired intellectual and friend of President Obama, has spent years delving into the obscure issues of regulatory law and behavioral economics.

Though he is generally described as left of center, Sunstein’s academic interests in regulation have led him to raise questions about the constitutionality of liberal favorites such as workplace safety laws and the Clean Air Act. He has embraced a controversial “senior death discount” that calculates the lives of younger people as having a greater value than those of the elderly.

Until recently such debates have taken place largely in the world of legal scholarship. But now that Obama has named Sunstein to serve as his regulatory czar, environmentalists and labor activists are digging into his voluminous body of work -- and wondering what policies might emanate from a man so dedicated to calculating the dollar value of every regulation.


Sunstein, who is married to another Obama friend, Samantha Power, reiterated recently his belief in “defending a strong regulatory state.” Much of his academic and popular work is devoted to understanding human behavior and determining what will motivate people, corporations and nations to do the right thing.

But environmental activists say his published views on cost-benefit analysis are more aligned with what they would expect from a George W. Bush or Ronald Reagan appointee. The more a regulation stood to cost industry, the less likely those administrations were to impose it.

“If a Republican nominee had these views, the environmental community would be screaming for his scalp,” said Frank O’Donnell, president of Clean Air Watch, a Washington-based advocacy group.

Instead, the response has been muted, as environmental and labor groups question the wisdom of criticizing the nominee of a popular president who has promised to support their agenda.

The Office of Information and Regulatory Affairs might sound like a remote bureaucratic outpost, but since the Reagan presidency it has influenced federal efforts to protect the public from unsafe food, dangerous chemicals, polluted air, climate change and workplace hazards.

That’s because the office reviews any major regulatory idea that comes from an executive branch agency. Business lobbyists already are applauding Sunstein’s nomination, hoping he might slow the march back to aggressive regulation under the new Democratic administration.


Labor and environmental advocates, on the other hand, want Democratic senators to question Sunstein closely at his confirmation hearing. Leading their concerns are his legal theories and their potential to hamper tough regulation.

At the AFL-CIO, political director Bill Samuel called Sunstein “a respected scholar and a strong believer in government regulation” but added: “We have concerns about some of his academic writings regarding his approach to regulatory policy and regulatory review. We want to hear more from him about how he intends to approach regulatory policy.”

Sunstein declined through an assistant to comment for this article, saying he wouldn’t speak publicly about his nomination before confirmation.

But in an e-mail to Obama advisors this month, Sunstein said he had devoted much of his career to supporting strong regulation and figuring out how to make it better.

“I do talk a lot about cost-benefit analysis,” he wrote, “and that gets me in trouble in some quarters.”

He described his first book, “After the Rights Revolution,” published in 1990, as a “sustained defense of the regulatory state, above all in the environmental area.” The book lists as its first goal to “defend government regulation against influential attacks.”


His 1997 book, “Free Markets and Social Justice,” explains that regulation is needed “because free markets fail.”

“I also believe that significant steps should be taken to control the problem of global warming,” he said in the e-mail, excerpts of which were provided to The Times and the Chicago Tribune by a person close to Obama’s transition team who asked not to be identified.

The leader of the transition, John Podesta, called Sunstein brilliant. Sunstein’s academic prowess would enrich debate in a White House where Obama is the acknowledged leader and decision maker, he said in an interview.

Sunstein notably parted ways with liberals on the question of regulation in 2001, when a group of 37 Democrats opposed President Bush’s nomination of John Graham to the same post.

Sunstein backed Graham, according to a news account at the time, saying he was one of the “most promising public servants in the nation” on regulations.

Few labor and environmental groups offered to comment on Sunstein’s nomination. But one organization of liberal lawyers will publicly cast a stone at Sunstein today: The Center for Progressive Reform plans to release an 18-page review of Sunstein’s work by member scholars expressing concern.


“Professor Sunstein’s long track record on regulatory issues is decidedly conservative. As longtime colleagues of Professor Sunstein who have debated him numerous times in a variety of settings, we write this paper to explain those concerns,” the report says.

An advance copy of the report, signed by eight scholars from various universities, lists what they see as problematic positions taken by Sunstein, including his support for a controversial statistical approach that agencies include a “life expectancy” calculation when considering the cost of proposed regulations.

The inclusion of that factor means that improving the environment of younger people, with more years ahead of them, would be assigned a higher value than improving the environment for those over 70.

In 2003, that approach was used in considering regulations by the Environmental Protection Agency, igniting a controversy between senior citizen and environmental groups and the White House.

Graham said the approach was appropriate and could lead to stronger health and safety rules. But environmentalists accused the Bush administration of using vulnerable senior citizens to weaken proposed environmental regulations. If the so-called senior death discount was applied, the relative value of proposed clean air regulation was diminished in government evaluations, they said.

The 2003 controversy grew to the point that Sen. Richard J. Durbin (D-Ill.) proposed outlawing the approach.


“The EPA should be creating regulations to protect everybody,” Durbin said then. “However, now we are in the cost-benefit era. . . . The EPA is discounting the lives of senior citizens. Their lives are as important to them and to our nation as anyone else’s life.”

Then-EPA Administrator Christie Todd Whitman announced that the agency would no longer use the calculation.

Left-leaning lawyers are also critical of Sunstein for an academic paper he wrote titled, “Is OSHA Unconstitutional?”

He concluded that the Occupational Safety and Health Administration probably was constitutional but that its approach to regulation needed to be modified to consider cost-benefit analysis.

The report on Sunstein’s work by the Center for Progressive Reform described the state of federal regulation as “badly broken” after years of neglect and undermining, particularly by GOP appointees.

“Professor Sunstein would seem to represent more of the same,” the report said.