The Regulatory Review features the remarks of Cass R. Sunstein, keynote speaker at the Penn Program on Regulation’s annual regulation dinner at Penn Law.
Many Americans have never heard of the Office of Information and Regulatory Affairs (OIRA), located within the White House. Yet OIRA is deeply involved in making federal regulations and has long been criticized by scholars, attorneys, and activists for overly politicizing rulemaking, allowing special interests to influence public policy, and impeding desirable governmental action.
Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School, responded to these criticisms of OIRA as the honored speaker at the Penn Program on Regulation’s annual regulation lecture held earlier this year at the University of Pennsylvania Law School.
“No other legal academic of our time has played a more influential role in regulatory policy – as both a scholar and public servant – than has Cass Sunstein,” explained Cary Coglianese, the Director of the Penn Program on Regulation. Professor Sunstein, one of the nation’s most prolific scholars in a variety of areas of law, recently served in the federal government as the first OIRA Administrator under President Obama.
At his lecture at Penn Law, Sunstein argued that OIRA is frequently misunderstood by its critics. The office conducts a review process that places primacy on developing sound public policy, not on playing politics. OIRA, he said, serves an important role in aggregating information and helping foster more effective and carefully considered regulatory decisions.
According to Sunstein, OIRA’s primary role is that of an information aggregator. Its review of proposed regulations facilitates a conversation between the rulemaking agency, other interested agencies, and interested members of the public that will be affected by the potential rule. OIRA incorporates those voices and views into the rulemaking process, serving within the executive branch as somewhat of a regulatory referee, he said.
Although OIRA’s role in applying cost-benefit analysis to proposed regulations has garnered much criticism, Professor Sunstein observed that most rules do not reach the threshold where they are subject to cost-benefit analysis. Even in those cases where cost-benefit analysis does take place, the numbers are not always determinative. Sunstein gave examples of rules justified in terms of values such as human dignity that could not be neatly incorporated into cost-benefit analysis.
Professor Sunstein also maintained that the vast majority of rulemaking delays associated with OIRA reviews result not from politics, but from disagreements between expert agencies. Resolving technical and legal disputes is one of OIRA principal functions, he argued, and in fulfilling this function OIRA plays a key role in making good regulatory policy decisions.
“I’m going to tell you a bit about the real world of the Office of Information and Regulatory Affairs (OIRA). And I’m just going to tell you facts…”
“My three quasi-ideas—drawn from Felix Frankfurter, John Stuart Mill, and Friedrich Hayek—are a framework for my reflection on the myths and realities of OIRA…”
“While my first three observations about how OIRA works shed light on what OIRA does, the fourth and last point sheds light on the nature of the work.”
“So far we have covered the internal process of OIRA. There’s also OIRA’s external meetings, something that’s gotten a lot of attention in academic circles…”
“I want to conclude my discussion of the myths and realities of OIRA by saying something about costs and benefits—and about politics…”
Click here for the combined text of all five parts of this series, White House Review of Regulation: Myths and Realities, based on the 2013 Regulation Lecture at the University of Pennsylvania Law School delivered by Cass R. Sunstein.