Cass Sunstein's 'Yes, We Can'

We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” 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 Administration’s 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 “free” market, should not mean that regulation-killing is the only thing in the job description.   What if “regulatory czar” was the person ultimately responsible for making sure the Executive Branch produces good and needed regulations, cracking the whip to make sure we had rules to make sure kids don’t 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 don’t have any more “Code Red” smog days? What if the job wasn’t 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 don’t 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 president’s principles to heart behave? Where would such a person start?  

The first place is money, of the “pay-a-penny-save-millions” variety. Let’s 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 world’s 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 children’s 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 “year of the recall” 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 “date rape drug,” when wet. Toddlers who gummed and swallowed the beads had seizures and went into comas. Some 4.2 million packages of “Aqua Dots” were recalled.

“If I went down the shelves of Wal-Mart and tested everything, I’m going to find serious problems,” Seth McGowan, a toy industry investment expert, told the New York Times. “The idea that Mattel—with its high standards—has a bigger problem than everyone else is laughable. If we don’t see an increase of recalls in this industry, then it’s a case of denial.”  

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 15—yes, 15—inspectors to ensure that poisoned toys stay out of this country.  Congress was due to give the agency a $30 million—that’s with an “m,” not a “b”—boost 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, but–with its current resources—hopelessly 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 OSHA’s 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 Administration’s 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 Administration’s 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 Bush’s 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 EPA’s own blue-ribbon, outside science advisory panel had unanimously endorsed the rule reversed by czar Dudley, providing one more example of the Republican “war on science” 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 czar’s kingdom?