Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - September 09, 2009)

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Ms. COLLINS. Mr. President, I rise to discuss the nomination of Professor Cass Sunstein to be Administrator of the Office of Information and Regulatory Affairs, OIRA.

Professor Sunstein's nomination has been endorsed by a number of groups, including the Farm Bureau, the Chamber of Commerce, and the National Association of Manufacturers.

I will ask consent to have letters of support from these organizations printed in the Record following my remarks.

While many people outside of Washington have never heard of this office, it can have an enormous influence on our everyday lives. Through the process of regulatory review, OIRA--as it is known in Washington--plays an integral role in the rulemaking process. The office advises agencies as rules are developed and then reviews the methodologies used to develop and justify these rules.

Professor Sunstein has extensively studied government regulation and the various methods that can be used to evaluate regulatory effectiveness. During his confirmation hearings, I noted several core principles that seem to underpin Professor Sunstein's work.

He advocates greater transparency in the regulatory process. One of his recommendations is that agencies be required to better justify decisions to regulate, particularly when the costs of regulations appear to exceed the benefits. That makes sense to me.

Professor Sunstein strongly supports the use of cost-benefit analysis as a tool for evaluating regulation. At the same time, he recognizes that such analysis has limitations when it comes to considering intangible costs and benefits.

Recently, Professor Sunstein has proposed an alternative to more draconian ``command-and-control'' regulation. In his book ``Nudge,'' he makes a compelling case for regulation that does not dictate actions but instead encourages certain behavior without limiting personal freedoms. This ``nudging'' can promote societal goals without depriving individuals or organizations of other choices.

As with many nominees who make the transition from academia to government service, Professor Sunstein will find that as he steps from the world of theory into the realm of practice, not every idea discussed in the classroom can be easily converted into government policy--nor should it be. During his confirmation hearing, Professor Sunstein and I discussed several provocative statements he has made in the course of his career, statements that are troubling on their face.

I was deeply concerned, for example, by his past comment that hunting should be banned. When I questioned Professor Sunstein on this statement, he responded as follows:

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.

In a July 14, 2009, letter to Senator Chambliss, Professor Sunstein promised to respect second amendment rights if confirmed as OIRA Administrator. Professor Sunstein explained:

I strongly believe that the Second Amendment creates an individual right to possess and use guns for purposes of both hunting and self-defense. I agree with the Supreme Court's decision in the Heller case, clearly recognizing the individual right to have guns for hunting and self-defense. If confirmed, I would respect the Second Amendment and the individual right that it recognizes.

I was also concerned by several law review articles in which Professor Sunstein made the bizarre statement that animals be given standing to sue in court--allowing ``representatives'' to sue on an animal's behalf. In response to questions on this subject during his confirmation hearing, Professor Sunstein clarified that he was suggesting this as a means by which existing animal cruelty laws could be enforced by civil suits. In a letter to me on this issue, Professor Sunstein further stated:

I have no personal plans to regulate farm animal husbandry in any way. If confirmed, and if the Department of Agriculture were to propose any regulations in that domain, I would work with the Department to ensure that any proposed regulations follow the law and fit with the priorities of the President--and that they take full account of the pressing needs of America's farmers and ranchers and the countless consumers who benefit, every day, from their remarkable efforts.

I will consent to have Professor Sunstein's letter printed in the Record following my remarks.

I know that a number of my colleagues have shared these concerns or raised other concerns based on Professor Sunstein's extensive bibliography. I understand that Professor Sunstein has made himself available to meet with Senators to discuss those concerns and has in some cases provided written clarifications of his positions. I expect that when confirmed as OIRA Administrator, he will continue to be as accessible and responsive to this Congress.

On balance, I support Professor Cass Sunstein as Administrator of the Office of Information and Regulatory Affairs.

Mr. President, I ask unanimous consent to have letters of support and Professor Sunstein's letter, to which I referred, printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

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