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Replacing Cass Sunstein

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Cass Sunstein recently announced his departure from the White House Office of Information and Regulatory Affairs (OIRA), and an acting director will occupy the post most likely until after Election Day. Whether President Obama gets another bite at the apple or Governor Romney gets a shot at the next appointment, there are certain tenets that should be adhered to when looking for a new OIRA director.

The most important concern is independent-mindedness. Since Congress created office in 1980, the 11 heads of OIRA have been candidates without ties to specific industry sectors, ideological camps, or other interest groups. This tradition of independence, developed over three decades, keeps the office somewhat insulated from excessive special interest influence.

Overwhelmingly, OIRA heads come from academia or nonprofit think-tanks, and, notably, go back to these endeavors after their terms end. That contrasts starkly to the revolving door between government and the private sector sometimes found at agencies. Administrators who may have worked in the private sector have done so with a focus on administrative law and regulation generally, not on a particular issue area or industry. Former OIRA administrators have gone on to become federal judges, law professors, and public policy school deans, and typically do not spend significant time in the private sector after leaving.

As an example, when he came to OIRA, Cass Sunstein was a highly respected academic with no preexisting connection to regulated industry or any particular interest group. During his Senate confirmation process, his writings were criticized from both ends of the political spectrum. But his knowledge of the administrative and regulatory system clearly came from scholarship, not from any significant direct, first-hand experience with agency rulemaking. And in essence, his views were very general, mostly the broad structure of the administrative system, rather than specific policy positions on contested issues. He will return to Harvard Law School to his academic position there.

Of course, at the end of the day, OIRA administrators are political appointees, not technocrats. They are not completely free of political views or policy preferences. But their role is to please no individual interest group, and it can only be filled well by someone with no ties or strong sympathies to any issue or organization.

Because of that role, it is common for nearly everyone to find fault with what the OIRA administrator says and does. Because their job is to strike a balance among competing interests, no one walks away entirely pleased. When considering Cass Sunstein's legacy, which some are already doing, this fact of life should be kept firmly in mind.

Now that this consistent pattern of independence has been instituted, departing from it should be politically costly. The position is subject to Senate confirmation, and any move to depart from the tradition of independence at OIRA should be met with stiff resistance.

Whoever wins in November should stick to the tradition of appointing OIRA heads without clear connections to the regulated parties or other interest groups. Unless there is a 180-degree break with the past, odds are good it'll be an academic with a generalist background. At the end of the day, unless the partisan make-up of the Senate changes enough to give one party an overwhelming majority, the next President won't have much of a choice.

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