Cass Sunstein wrote a piece for Bloomberg, published today, arguing that second-term presidential scandals are 'almost inevitable,' just based on the 'arithmetic' involved. There's no actual arithmetic in the piece, but some of the arguments make some sense. By his (or her) second term, a President will have made a lot of calls, and some of them will undoubtedly have been wrong for whatever reason. Major events may or may not suck up the coverage of other matters, as for example wars under Bush the Elder and Bush the Younger. The afterglow of a new presidency will eventually subside, and journalists will begin to look more closely at the administration (I might add that journalists might even begin to recognize certain patterns). The probity of an administration, or the lack of it, will also come into play, he admits. He repeats the claim that the scope of the Executive Branch is so great, nobody can possibly keep an eye on all of it. The party out of power will become increasingly frustrated and inclined to attack.
As I say, there's some truth to much of that, but recall that Sunstein was appointed to the Office of Information and Regulatory Affairs, authorized under the 1980 Paperwork Reduction Act, and lodged in the OMB.
The Office of Information and Regulatory Affairs (OIRA // oh-eye-rə) is an office of the United States Government that Congress established in the 1980 Paperwork Reduction Act. OIRA is located within the Office of Management and Budget, which is an agency within the Executive Office of the President. It is staffed by both political appointees and career civil servants, who have been carrying out the same kinds of economic analysis and related analyses for the past 20 years. In addition to reviewing draft regulations under Executive Order 12866, OIRA reviews collections of information under the Paperwork Reduction Act, and also develops and oversees the implementation of government-wide policies in the areas of information technology, information policy, privacy, and statistical policy.
Executive Order 12866 describes OIRA's role in the rulemaking process. In it, the President directs agencies, to the extent permitted by law, to follow certain principles in rulemaking, such as consideration of alternatives and analysis of impacts, both benefits and costs. As the Executive Order directs, OIRA reviews agency draft regulations before publication to ensure agency compliance with this Executive Order.
The OIRA Administrator from September 2009 to August 21, 2012 was Cass Sunstein, who was succeeded by Acting Director Boris Bershteyn (on Thursday, April 25, 2013, U.S. President Barack Obama nominated Howard A. Shelanski of Pennsylvania to the U.S. Senate for confirmation as the next permanent Director). From 2001 to March 2006, OIRA was headed by John D. Graham, who departed to accept the deanship of the Pardee RAND Graduate School.
Sunstein's background includes stints as a prominent law prof at the University of Chicago during Obama's adjunct tenure. Other gigs:
Sunstein was the Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986 and a visiting professor at Harvard Law School in the spring 1987, winter 2005, and spring 2007 terms. He teaches courses inconstitutional law, administrative law, and environmental law, as well as the required first-year course "Elements of the Law", which is an introduction to legal reasoning, legal theory, and the interdisciplinary study of law, including law and economics. In the fall of 2008 he joined the faculty of Harvard Law School and began serving as the director of its Program on Risk Regulation:
The Program on Risk Regulation will focus on how law and policy deal with the central hazards of the 21st century. Anticipated areas of study include terrorism, climate change, occupational safety, infectious diseases, natural disasters, and other low-probability, high-consequence events. Sunstein plans to rely on significant student involvement in the work of this new program.
He was co-author with Adrian Vermeule of a "Conspiracy Theories" paper, in which he proposed, among other things, the possibility of the federal government's creating a corps of undercover internet operatives to express concern with and contradict what the government considers mis- or disinformation perpetuated online, in order to stop " availability cascades, wherein popular discussion of an idea is self-feeding and causes individuals to overweight its importance." If I recall correctly, Sunstein and Vermeule argued both sides of the issue, stating that the risk of blowback should such an agent be discovered possibly overrode the possible dampening benefits of such agents' operations. But as I've argued before, the problem with any such agency would be that government itself would be in the position of deciding what did and did not constitute a conspiracy theory, and sometimes they happen to be true. Certainly, there are a lot of kooks on the internet, but on the whole it seems to me that citizens are more likely to fall for government created disinformation narratives than those spontaneously emerging from the fever swamps, as with (remember) the Maine, Gulf of Tonkin, and Benghazi.
There's a lot more that I disagree with Sunstein on, including his emphasis on 'rights' that generally involve the erosion of 'liberties' and his general invocation of not just big, but enormous government 'paternalism,' which actually takes the form of maternalism. I have received abuse in the past for saying that I nevertheless like him, because I think that he is much more honest on the whole about his political philosopy than most of his fellow travelers, but from my own point of view he presents a very naively elevated view of Homo bureaucratus and a correlatively low view of the People, who need all kinds of intrusive shepherding from Very Smart Elites to do what is best for them. I don't have any idea what Sunstein's actual thoughts regarding the Jason Richwine dust-up may be over immigrant IQs, but I find it hypocritical that many of those who have screamed most loudly that Richwine's dissertation amounts to a form of racist infantilization of Latino would-be immigrants nevertheless believe there is an overwhelming gap between their elite understanding of what is best for people and those people's understanding of what is best for them, situated and motivated to assess it as they are. Sunstein believes, in short, that the marketplace of ideas ought not to be such a free market as more or less prevails, but rather one that is shaped and manipulated by self-selected knowers, and there's no cascade effect associated with such elitism. Sunstein's published thoughts regarding the First Amendment are very much in line with this elitist point of view, despite the gestures that he makes in the direction of populism on that score.
Yesterday, Michelle Malkin pointed out the cozy relation that Judy Faulkner, owner of Epic Systems, has with the administration, and how that public-private partnership will control the medical records of half of American citizens, despite the manifest problems with the platform in sharing information among interested agencies. Jim Geraghty has pointed out that all of the Obama scandals at root arise from attempts to control information, whether the administration is attempting to cover up why Benghazi or Fast and Furious happened, or regarding the AP and Rosen, or in the case of the IRS, which seems systematically to have attempted to suppress political speech deemed obnoxious to the agenda of the administration. Senator Patrick Leahy appeared before Issa's committee to grandstand over the Citizens United decision, and to argue that the Supreme Court had unleashed the wrong sort of political speech, by which Leahy means political speech that he finds unwelcome. Given Sunstein's deep concern, amounting almost to obsession, one might say, with the control of officially sanctioned information and suppression of unofficial, unsanctioned information, or misinformation, or disinformation in either case, one can see why the administration found him congenial.
Sunstein is a legal scholar, as I've mentioned, but even though in this latest piece for Bloomberg he does raise the issue of an administration's propriety and uprightness, he never does allude to the law. Last week, when Republicans in the house were opposing funding for some of the wonk-and-lobbyist created provisions of the Affordable Health Care Act, a White House Twitter account tweeted out: "It's. The. Law." So it is, but on the other hand, what have we seen from this White House? The Constitution says that the President shall submit a budget annually, and he does not. He tries to make 'recess appointments' when Congress is not in recess. His campaign shuts down back-end verification for political donations through a website, despite the legal requirements. Janet Napolitano tells Congress that the adminstration has the right to choose which laws it wishes to enforce and which not. The ATF and related agencies, working with the DoJ, decided to suppress laws regarding gun sales in order to walk guns into the hands of Mexican narcoterrorists, with no attempt at interdiction. When the AG stonewalls Congress in its attempts to get information regarding who did what in that affair, he is finally held in contempt, only to turn around and express his contempt for those in Congress who found him in contempt, after the President invokes executive privilege quite ridiculously in order to protect him. Thwarted in his Congressional adherents' attempts to pass a poorly written gun law, Obama says that he will try to end-run Congress to get what he wants. The recent scandals are all of a piece with the administration's general contempt for the rule of law as it applies to them and to their allies.
Yesterday's testimony's real bombshell was that the IRS had completed an internal investigation in May of 2012, long before the IG's report was filed, but that nobody had bothered to let the Oversight Committee know about it. At the same time, the findings, which anticipated in important respects those of the IG, were apparently distributed to high-ranking Democrats in other committees, months before the last general election. The internal investigation that reached many of the same conclusions regarding targeting as the IG's investigation was conducted by a manager in the agency’s Exempt Organizations Guidance office, Ms. Holly Paz, who received a promotion just a week ago, also sat in on the great majority of interviews conducted by staff of the IG, Mr. Russell George, who found some witnesses unforthcoming. Mr. George knew and was friendly with Mrs. Obama when she was a law student at Harvard. In retrospect, Mr. George believes that it might have been better to conduct an IG investigation, rather than audit, and put interviewees under oath, and that maybe it might have been a better idea to have omitted Ms. Paz's participation in those interviews. Documents asking for inappropriate information about donors, associates and participants in the targeted groups have been destroyed, he has been assured, but there's no way to say whether the information might have been copied or aggregated in the form of enemies lists or otherwise and passed on to partisan political operatives.
My question for Mr. Sunstein is simply this: what was so arithmetically inevitable about this, just this one, particular scandal? Judicial minimalism, Professor Sunstein.
UPDATEx2: See Dan Foster's excellent piece on how difficult it might be to fire Lois Lerner. No wonder the IRS finds criticizing big government so hostile. Seems IRS employees' administrative rights are more important than average citizens' Constitutional ones.