Cass Sunstein's "Yes, We Can"

Cross-posted from CPR Blog, by Rena Steinzor

Weâve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the âregulatory czarâ for the Obama Administration.   In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administrationâs regulatory czars, John Graham, and his protégé, Susan Dudley.

But, we got to thinking.  Just because the 30-year tradition of regulatory czars is to kill regulations, leaving people to fend for themselves in the âfreeâ market, should not mean that regulation-killing is the only thing in the job description.   What if âregulatory czarâ was the person ultimately responsible for making sure the Executive Branch produces good and needed regulations?

What if âregulatory czarâ was the person ultimately responsible for cracking the whip to make sure we had rules to make sure kids donât get salmonella-contaminated peanut butter at school, save workers from dying when trenches collapse or cranes fall over, make sure toys covered with Chinese-manufactured lead paint stay out of American toy stores, and clean up the air so we donât have any more âCode Redâ smog days? What if the job wasnât just about conveniencing industry, and was instead about protecting Americans from hazards?

President Obama promised us profound, transformative change in Washington, D.C.   As he said repeatedly on the campaign trail:

Now, understand, I don't believe that government can or should try to solve all our problems. But I do believe that government should do that which we cannot do for ourselves--protect us from harm; provide a decent education for all children--invest in new roads and new bridges, in new science and technology.

Listen, we donât need bigger government or smaller government. We need a better government.  We need smarter government. We need a more competent government. We need a government that reflects our values.

What would it take to get the regulators back on the beat, not just to prevent toxic mortgages but also to clean up toxic air? How would a regulatory czar who took the presidentâs principles to heart behave? Where would such a person start? 

The first place is money, of the âpay-a-penny-save-millionsâ variety. Letâs talk toys for a moment.   Eighty percent of the toys sold in the United States are manufactured abroad, the vast majority in China, where no one checks any factory for safety until after disaster has struck.  On August 14, 2007, Mattel, the worldâs largest toy company, announced that it was recalling some 426,000 die-cast toy cars that were coated with lead paint.   The Mattel recall followed a spate of smaller recalls in 2007, the majority of which involved lead paint found in products from baby bibs to childrenâs jewelry.  

Ingestion of lead at very low levels can trigger poisoning serious enough to cause neurological damage in a child. Investigative reporting by The New York Times discovered that in China, paint with high lead levels costs one-third as much as paint with low or no lead. China is the largest producer of lead in the world and has increased its mining and processing of the toxic metal by 50 percent since 2001.  

Lead was not the only problem that surfaced in 2007, subsequently dubbed the âyear of the recallâ by consumer groups. Australian doctors found out that small beads sold as part of arts and crafts sets for children, which were also manufactured in China, released gamma hydroxybutyric acid (GHB), a powerful substance commonly referred to as the âdate rape drug,â when wet.  Toddlers who gummed and swallowed the beads had seizures and went into comas. Some 4.2 million packages of âAqua Dotsâ were recalled.

âIf I went down the shelves of Wal-Mart and tested everything, Iâm going to find serious problems,â Seth McGowan, a toy industry investment expert, told the New York Times. âThe idea that Mattelâwith its high standardsâhas a bigger problem than everyone else is laughable. If we donât see an increase of recalls in this industry, then itâs a case of denial.â 

The agency responsible for solving all these problems is the Consumer Product Safety Commission, which has less than half the employees it had in 1981 and fields a grand total of 15âyes, 15âinspectors to ensure that poisoned toys stay out of this country.  Congress was due to give the agency a $30 millionâthatâs with an âm,â not a âbââboost this fall but decided we could not afford it because of the $850 billion bailout.

How about it, Professor Sunstein? Would you care to use your bully pulpit as regulatory czar to speak up for this poor little agency with the massive, crucially important, butâwith its current resourcesâhopelessly overwhelming job?  

The second step after money is to restore political will: persuading health, safety, and environmental agencies to believe in themselves and their missions again and ordering them to stop coddling the industries they are supposed to watch dog. Consider worker safety.   Workers die all the time when cranes collapse; when the equipment that falls down happens to be in the middle of Manhattan, it even makes national news.  But the Occupational Safety and Health Administration (OSHA) has sat on a rule to prevent such accidents since 2001, even though the rule achieved public sign-off from big construction companies.  The new rule is needed because OSHAâs standards for cranes were written in 1971.   As our colleagues at The Pump Handle have pointed out here, here, and here, it is impossible to think of any good reason to sit on these rules other than the Bush Administrationâs irrational hatred of regulation.  

Once again, we ask Professor Sunstein what he, as regulatory czar, would do to get this life-or-death rulemaking moving again?

Last but not least is the problem of atoning for past sins. Here, we need to focus on smog for a moment. In March 2008, the Bush Administrationâs second regulatory czar, Susan Dudley, smothered an EPA regulation to tighten controls on ozone, elevating the dispute directly to the President over the passionate, behind-the-scenes protests of Bushâs own EPA director, Stephen Johnson. The reversal was so sudden and so egregious that one EPA career lawyer worried that the agency would be held in contempt of court when a judge focused on the situation in a subsequent lawsuit. The EPAâs own blue-ribbon, outside science advisory panel had unanimously endorsed the rule reversed by czar Dudley, providing one more example of the Republican âwar on scienceâ that President Obama promised to stop in his State of the Union address.    

One last time, prospective czar Sunstein, how about taking the lead in reversing this travesty perpetrated by your predecessors, rather than putting the burden on the beleaguered EPA to refight this battle with your career staff? How great a signal would that send that a new day had dawned in the regulatory czarâs kingdom?

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Professor Sunstein woulld do well to heed this advice.

When he leaves the ivory tower it will be time to set aside his musings as an academic and open his eyes to the reality of a degraded environment and hazardous work places.

Professor Sunstein's success as a controversial but brilliant legal scholar is substantially unrelated to success as regulatory czar. The "Chicago School" law and economics principles that underlay the de-rugulatory and anti-regulatory mantras of the last 40 years --- culminated in the Wall Street implosion and an international economic meltdown of epic proportions. So too did the anti-regulatory bias result in needless deaths and injuries in the workplace and continued defiling of our environment. Professor Sunsteins scholarship has all too frequently failed to recognize that greed rather than advancing the public interest motivates the market.

Candidate Obama said we need "better government." Unless Professor Sunstein recognizes that "better government" requires strong effective enforcement of regulatory laws intended to protect the workplace from occupational hazards and citizens from environmental harms, he will fail miserably. The "change we need," as suggested above, is for the new "regulatory czar" to embrace science and enforce the law --- what a change that would be!

By Christy Callaghan (not verified) on 12 Feb 2009 #permalink