THE REGULATORY CZAR: CASS SUNSTEIN

Decades ago in Portland, Oregon, I attended a conference at Lewis and Clark Law School about exotic animal trafficking.  It is problematic because it strips the originating ecology of that animal and inserts the animal in an alien place where it can become a pest, dangerous, or destroyed.  A man was speaking about the difficulty of writing effective laws and I have never forgotten his advice.  “People are too alert about laws, which must be voted on and reviewed by courts.  The smart thing to do is to concentrate on regulations.  They are not voted on, they are controlled by administrators, easily changed, and too complex for anyone to monitor thoroughly.  That is, it’s hard to pass a law forbidding the importation of tigers, but it’s easy to create a set of regulations so restrictive that no one will want to bother with it.” 

Thus, my eye was caught by an analysis of the seven books (and counting) of Cass Sunstein, dubbed the “Regulatory Czar” or more formally the head of the Office of Information and Regulatory Analysis (OIRA).  The piece is written by Joseph Postell, an assistant professor of political science at the U of Colorado on behalf of the Claremont Institute which announces itself “for the study of Statesmanship and Political Philosophy.”  In fact, it is conservative, right wing, and believes it is defending the original concepts in the US Constitution, particularly free trade.

Regulations, aside from the clever evasion of law, are increasingly problematic in two ways.  On the one hand no one wants to create the expensive machinery of inspectors and their oversight to ensure diligence and prevent corruption (which dependably never quite works in practice).  On the other hand, we have inadvertently developed a system of dueling regulations.  On the political left the regulations seek to create more fair and protective practices for more people (the greatest good for the greatest number) and on the right the regulations seek to protect trade advantages, the gradients that create profit in the name of “freedom” and hard work.

The interesting part of this argument from Mr. Postell is his suggestion of how political stances have developed.  He begins with “progressivism” which is my grandfather’s sort of Republican, that is, based on development usually supplied by engineering as the frontier was “developed” with dams, mines, universities, and transportation systems.  He was a white man, born and educated in Scotland, whose family immigrated to homestead in South Dakota and thought very little about displacing the indigenous people, who were already removed or there would have been no homesteads.  No one in his family smoked, drank, played cards, or slacked off.  They believed in family, Yankee ingenuity, cooperatives and Rodale.  Postell feels liberalism is a degenerate and redistributive version of this.

Postell feels that Sunstein is rejecting these classic values by citing deconstruction in a self-contradictory way.  Sunstein says “meaning is created rather than found” and “no text has meaning apart from the principles held by those who interpret it, and those principles cannot be found in the text itself.”  But he says, “This does not mean that all argument is manipulation or that good reasons cannot be offered on behalf of one view rather than another.”  I take Sunstein to be saying that it is necessary to step back far enough to examine one’s values, which Postell is reluctant to do.  He doesn’t want to admit that his basic values (profit and freedom) are in conflict with those of Sunstein (the greatest good for the greatest number). 

Postell’s idea of the goal of regulation by government is “to protect property rights and enforce contracts, . . . preserve markets and voluntary exchange of goods.”  He objects to the idea that government should “redistribute wealth from one person to another.”  That is, tax the rich to feed the poor, which he feels has become the practice of liberals who want health care and social security, etc.  He says “Sunstein has written that pragmatism is an approach to solving otherwise interminable questions about first things.”  Meaning values.  Instead of beginning with ontology (essential beginnings like the Constitution) Sunstein is going to teleology:  goals and results.  But he is not willing to use regulations in a repressive manner, and his desiderata are not the same as Postell’s.

The wonderful phrase “choice architecture” and less wonderful “libertarian paternalism” get thrown around, both of them coming out of consumer strategy.  The idea is to make it easy to choose what the regulator wants, often by NOT taking an action so that, for example, by default you accept a free trial but are billed for continuing service if you don’t cancel by the deadline.  Or by hiding consequences behind glowing versions of what you are getting.  (Gift VISA cards with many small fees for the user.)

An example belabored in this argument comes from the book called “Nudge.”  It has become obvious that people (many of them poor or kids) live on hamburgers and french fries at the expense of their health.  Bad health means higher social costs.  The right winger wants absolute freedom to keep on selling something so profitable as fast food.  The left winger works to get such food removed from schools or from food subsidies. The “Nudge” compromise is to require the restaurant to print the calorie counts of the foods on their menus.  Postell feels this is an imposition on the freedom of the food seller.  But he does not argue with health inspections to eliminate rats and roaches nor does he argue with TB screening for food handlers.  Would he argue with a requirement to serve only food produced in the United States?  Would anyone argue with the unenforceable requirement that all food handlers must wash their hands thoroughly before returning to work?

The strange part of all this is the passivity of so many citizens except when it comes to consumerism.  People (including kids and immigrants) often know amazing amounts of technical detail about what they buy, whether it’s drugs or washing machines, but know hardly anything at all about how a democracy operates.  Their passive choice IS “libertarian paternalism,” even if it means working in a bar sodden with lethal second-hand smoke.  Their passive choice is not voting, not attending meetings, not finding out the basic information they need for good health -- much less acting on it.  In fact, much of their consumer research is simply thrust upon them by advertising.  So why WOULD any intelligent, enterprising, progressive who only knows people like him or herself want to waste any effort on the lumpen masses?  Let them die.  If they don’t care, why should anyone else?  Now we're partly into religious values and partly facing the practical consequences of poor, desperate, suffering people -- which is social disorder and ultimately revolution. 

What are the differences among a nanny-state, a justified butt-kicking (forget nudging) government, or a fascist elite minority that makes sure all regulations cause the money to run into one corner of the table -- THEIR corner?   Can the difference be found sitting around a government conference table designing effective regulations while NGO’s huddle to push their own causes and across town the corporate lawyers meet to evade all restraints?  I’m skeptical.  Our ecology has changed.  Our value landscape is in turmoil.  Our laws and even our constitution are challenged.