Will Obama's Guys Feed or Fight Regulatory Beast?

The Obama administration is close to getting two key officials on board who will have a big say in how businesses are affected by new regulations.

Last Thursday, the Senate finally confirmed Harvard law professor Cass Sunstein to be administrator of the Office of Information and Regulatory Affairs. Sunstein’s job will be to review regulations before they are issued and lead the administration’s regulatory reform effort.

This Wednesday, the Senate is expected to confirm venture capitalist Winslow Sargeant to be chief counsel of the Small Business Administration’s Office of Advocacy. One of Sargeant’s main jobs will be to ensure that federal agencies consider the impact their regulations have on small businesses.

Little controversy is expected over Sargeant’s confirmation—the only serious question that came up in his hearing was the fact that he— unlike every other chief counsel in the office’s history—isn’t an attorney. That’s an issue because the office frequently files legal briefs on behalf of small businesses in regulatory disputes.

To get around the “not a lawyer” criticism, Sargeant assured senators that he’ll build a topnotch legal team. He also said his experience as a small business owner—he was a cofounder of a computer chip company in Allentown, Pennsylvania—gives him insights on regulations that no mere attorney could ever have.

Sunstein, on the other hand, proved to be a controversial choice. He was opposed by Republicans but not because he’s a heavy-handed regulator— in fact, he believes in weighing the costs, as well as the benefits, of regulation. Sunstein also is an advocate of “libertarian paternalism”— an approach that favors incentives over mandates to achieve desired goals

Business should love this guy, and in fact the U.S. Chamber of Commerce endorsed Sunstein’s nomination, citing his “pragmatic approach to regulation.”

It’s liberals who should be nervous of Sunstein, especially since they think OIRA has blocked agencies from adopting strong regulations in the past.

Most of the attacks on Sunstein, however, came from the right, not from the left. That’s because this renowned constitutional scholar really, really likes animals. He thinks hunting is cruel, and he suggested in his books Animal Rights: Current Debates and New Directions that animals be given legal standing to file civil lawsuits (with humans as their representatives, of course).

“According to Mr. Sunstein’s logic, your dog could sue you for putting its collar on a little too tight,” said Senator Jim Bunning, a Kentucky Republican.

More seriously, Bunning’s GOP colleague from Arizona, Senator Jon Kyl, said giving animals legal standing “could open the door to a flood of ridiculous lawsuits.”

“Imagine what could happen if a group wanted to represent lab rats or farm chickens in a class-action lawsuit,” Kyl said. “Even if claims were found baseless in courts, someone—farms, laboratories, business owners—would still bear the costs of litigation.”

Sunstein tried to address these concerns by explaining that he only meant to suggest that giving animals legal standing could provide a means of using civil lawsuits to enforce animal cruelty laws. He’s not going to push for that change.

In the end, Sunstein was confirmed by a 57-40 vote. Six Republicans broke ranks and voted for him: Robert Bennett of Utah, Susan Collins of Maine, Orrin Hatch of Utah, Richard Lugar of Indiana, Olympia Snowe of Maine and George Voinovich of Ohio. Meanwhile, five Democrats voted no: Mark Begich of Alaska, Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Jim Webb of Virginia. Independent Bernie Sanders of Vermont also voted against him.

Sunstein said he won’t try to ban hunting, and he assured farm groups that he doesn’t have any plans to impose new regulations on how they treat their animals.

They hope he’s not full of bull.