July 17, 2013
In 1981, Cass R. Sunstein—now a University Professor at Harvard Law School—was a young lawyer with the Department of Justice. He helped advise on the executive order on cost-benefit analysis for the White House Office of Information and Regulatory Affairs, then barely a year old—“a little office with a big impact,” Sunstein later called it. It was still finding its way as a filtering mechanism for federal regulations.
By that time, Sunstein had already graduated from both Harvard College (1975) and Harvard Law School (1978). He had clerked for Supreme Court Justice Thurgood Marshall, and he was to go on to teach law at the University of Chicago before joining the HLS faculty. Along the way, Sunstein wrote dozens of books and hundreds of academic publications, along with countless newspaper and magazine articles. But all the while, he hewed to that moment—more than three decades ago now—when he glimpsed the early workings of OIRA. For years he dreamed of returning there, to what he called “the cockpit of the regulatory state.”
Dreams do come true. In the fall of 2009, Sunstein left Harvard to serve for three years as the administrator at the helm of OIRA. Appointed by President Barack Obama ’91 and confirmed by the Senate, he joined a humming warren of executive branch experts in trade, health, economics, science and other specialties. “The sheer diversity and range were inspiring and illuminating to me,” he said. Sunstein returned to Harvard in August 2012, eager to bridge the traditional divide between the academy’s world of ideas and the government’s realm of practicality.
During his White House service, Sunstein wrote only in his official capacity. But in March, when he met with a reporter at HLS, it was clear that he had lost no time in discharging several years’ worth of pent-up academic energy. In his office in Areeda, atop his commodious hardwood desk, books and journals sprawled—all of them open, underlined and dog-eared, the grist of his 12-hour days. He had three books underway, class notes to prepare, papers to deliver and two conferences to organize in the coming months. All of his projects are influenced by his White House experience, which reinforced his belief in the importance of federal regulations that are transparent, well-written, and evidence-based, and have the potential to save lives—all without excessive cost or red tape. “The president instructed me to keep the numbers and cost of rules down, and we did that,” said Sunstein. The Obama administration, he added, issued fewer rules in its first four years than any other recent administration over the same period.
Sunstein points to rules to ensure food safety, highway safety and cleaner air that were finalized during his tenure and will result in “thousands of lives saved and accidents or illnesses prevented.” He points to official estimates that a 2009 salmonella-related rule from the Food and Drug Administration, for example, will prevent dozens of deaths a year, along with up to 79,000 illnesses.
He mentions other rules vetted under his direction that will have multiple beneficial effects, such as the one increasing the fuel economy of the U.S. automotive fleet to more than 50 miles per gallon by 2025. “It’s going to save lives because of reduced air pollution. It’s going to save money because people will pay less at the pump. And it’s going to increase our energy security,” he said.
OIRA has always been charged with balancing a new rule’s costs and benefits. But during Sunstein’s tenure, President Obama called for federal regulations to account for hard-to-measure impacts on fairness, equity and human dignity—factors that in “Simpler: The Future of Government,” Sunstein’s most recent book, are called “nonquantifiable.” In his HLS office, Sunstein named a favorite example of a rule influenced by impacts that are hard to measure in numbers. In 2009, the Centers for Disease Control and Prevention broke a longtime ban and allowed HIV-positive people entry into the United States. The agency noted that humanitarian, distributional and international benefits are hard to express in monetary terms. “There are rules not just involving safety and health, but civil rights,” he said. “That’s an example.”
Under Sunstein’s direction, OIRA worked with agencies to ensure that rules were written clearly. OIRA also had to work with many other officials to ensure that each rule was informed by a workable consensus on the relevant issues. That consensus came first from within a constellation of federal agencies that might have expertise on a proposed rule, with Sunstein’s agency acting as a convener and an “information aggregator.” Professor Daniel Meltzer ’75, who was principal deputy counsel in the Office of White House Counsel during some of the time his HLS colleague served in the Obama administration, praised Sunstein’s ability to quickly master the details of one complex regulatory program after another. “And in an environment where there are always political forces circling,” Meltzer added, “Cass had a sharp focus on trying to get things right on the merits.”
At OIRA, part of getting things right, the final tempering of a rule, came from shaping it on the anvil of public comment. In the academic world, public comments are seen as being “like Kabuki theater,” Sunstein said—a form of ritual drama. But when it comes to actual practice within the Obama administration, public input is taken very seriously.
He points to Jan. 18, 2011, as “a crucial day,” when President Obama signed an executive order calling for cost-benefit analysis, flexible approaches, scientific integrity, and a “lookback” at regulation on the books, and strengthened public participation in finalizing regulations. “It brought rulemaking into the electronic age,” said Sunstein, providing a way to check proposed rules against the wisdom of the crowd. Through improved federal websites, comments can be transmitted electronically and commentators can be in dialogue with one another.
The best public comments, whether transmitted online or on paper, are those that are not just opinions or intuitions, said Sunstein. Instead, they contain facts and evidence, and are constructed around an argument. He calls facts and human consequences (measured with the help of cost-benefit analysis) his “lodestar” in the regulatory realm.
In “Simpler,” he describes his attempts to bring decisions about regulation out of the realm of intuition and anecdote and into the realm of data and statistical analysis based on the way people actually behave.
“We know people are prone, in some cases, to excessive optimism—that they can be impulsive, they can be impatient, they can be reckless. The human animal sometimes behaves in surprising ways. So if we’re thinking about policy, we ought to have a realistic rather than a fanciful conception of what people are like,” he said.
Impulse-driven behavior can lead to costly social consequences, including obesity, low savings rates or wasted energy. Sunstein hopes that the government of the future, as imagined in “Simpler,” can use the empiricism of behavioral economics to nudge Americans into better choices—an approach he calls “choice architecture.” In the federal regulatory realm, he offers the 2011 example of the Department of Agriculture’s switching from the traditional food pyramid (an image with little clarity) to the food plate (which offers direct guidance).
Sunstein has now started a new interdisciplinary research program at Harvard to study the role behavioral economics could play in shaping regulations. The university has all the experts needed, he said, from economists and psychologists to lawyers and brain scientists.
Sunstein’s public service also informs his writing projects. Several publications, he said, “are directly based on what I learned.” The book, “Simpler,” which appeared from Simon & Schuster in April, reimagines government as user-friendly as an iPad, with rules based on empirical evidence, and with built-in “nudges” that maintain personal freedom but encourage good choices. And an article, “The Office of Information and Regulatory Affairs: Myths and Realities,” published in the May Harvard Law Review, is intended “to capture accurately what the process is like,” he said. “It says what I wish I had known before I started.”
Sunstein’s real-world lessons from D.C. have made their way into courses he has offered since his return, including a regulation policy seminar, an administrative law course, and a joint law and economics seminar called Selected Problems in Regulatory Policy, co-taught with Nancy-Ann DeParle ’83, another very recent White House staff veteran, who was central to the implementation of the Affordable Care Act. To students, he hopes to bring “a real sense of where the open questions are,” including how to improve cost-benefit analysis, how to put a value on public health, and how to rethink the relationship between the executive branch and the judiciary.
Sunstein also returned from Washington with a new appreciation for the traditional divide between academic and government work. “I think that’s very healthy, and here’s why: People in government are involved in today, tomorrow, next week, and maybe next month, and sometimes the future,” he said. “People in academic life are often thinking of things that are more long-term. In academic life, you don’t think, Is this feasible? You think, Is this right?” Sunstein sees great value in a lot of scholarship that “doesn’t have an obvious or immediate consequence for what government should do,” he said—perhaps because it’s just floating an idea. As the former regulatory czar (a title he called “a wild overstatement” in “Simpler”), he knows very well how floated ideas can sometimes sink in the world of Capitol Hill, hitting their authors in the head. In advance of his September 2009 confirmation hearings, Sunstein was lambasted by some in the press for ideas that he had put forward—the notion, for instance, that abused animals might deserve representation in court. One critic even called him “the most dangerous man in America.”
So now, almost a year after his government service, Sunstein has added another book to his list of post-Washington projects. “Conspiracy Theories and Other Dangerous Ideas” (projected for publication by Simon & Schuster within a year) “consists of some of the most controversial essays I did before I went into government,” he said, “some of which, let’s say, were not helpful for my confirmation by the United States Senate.”
Sunstein has now returned to being an actor in the realm of big ideas. The one he is the most excited about is also the most speculative (and the subject of a Harvard conference this fall): Can emerging science on the workings of the brain someday inform regulatory policy? “This is a very early area of research, but I am keenly interested in it,” said Sunstein, who is prepared to be the most dangerous man in America again.
This article was originally published in the Summer 2013 issue of the Harvard Law Bulletin.