I respectfully urge you to disclose as much information as you can about these policy advisors and “czars.”  Specifically, I ask that you identify these individuals’ roles and responsibilities, and provide the judgment(s) of your legal advisors as to whether and how these positions are consistent with the Appointments Clause.

Politico’s take here is — shockingly! — a bit misleading and over-wrought. In addition to Feingold’s letter, there’s Sen. Byron Dorgan (D-N.D.) saying that “you need to have confirmation” for powerful advisers. There’s Sen. Dianne Feinstein (D-Calif.), who wants more oversight but avers that the way “czars” are defined in the press is wildly misleading: “I don’t think it’s quite fair to call, for example, David Hayes at the Department of Interior a czar.” Somewhat surprisingly, conservative-leaning Sen. Ben Nelson (D-Neb.) dismisses the “czar” panic as “something that some talk show hosts have made a great deal out of.” And there’s an eight-month old letter about “czars” from Sen. Robert Byrd (D-W.Va.). Politico packages this as evidence of Democrats “joining the czar wars.”

It’s hard to overstate what a fantastic issue this is for Republicans if it’s covered hysterically. The 40 Republican members of the Senate have filibustered or put holds on many of the president’s nominees, including Dawn Johnsen for the Office of Legal Counsel and Tom Perez at the Civil Rights Division of the Justice Department. They subjected Cass Sunstein to an eight-month series of holds and filibusters which ended only last week — and they continue to include Sunstein in the roll calls of “unaccountable czars.”

Thanks to lazy and sensationalized journalism, Republicans are able to put the breaks on the president’s nominees while complaining, as Sen. Lamar Alexander (R-Tenn.) did yesterday, that President Obama’s appointees are “unaccountable to the American people through their elected representatives.” The fact that Republicans, instead of asking questions, are quietly placing “holds” on qualified nominees who have been submitted to the Senate, goes utterly unmentioned.

Feingold’s letter:

Dear Mr. President:

From the beginning of your administration, you have made an admirable commitment to transparency and open government.  You showed the strength of your commitment by sending a memorandum to the heads of executive departments and agencies within a week of your inauguration, stating: “My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.”

As you know, there has been much discussion about your decisions to create and assign apparently significant policy-making responsibilities to White House and other executive positions; many of the persons filling these positions have come to be referred to in the media and even within your administration as policy “czars.”  I heard firsthand about this issue on several occasions from my constituents in recent town hall meetings in Wisconsin.

The Constitution gives the Senate the duty to oversee the appointment of Executive officers through the Appointments Clause in Article II, section 2.  The Appointments Clause states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise proved for, and which shall be established by law.”  (Emphasis added.)   This clause is an important part of the constitutional scheme of separation of powers, empowering the Senate to weigh in on the appropriateness of significant appointments and assisting in its oversight of the Executive Branch.

As a member of the Senate with the duty to oversee executive appointments and as the Chairman of the Senate Constitution Subcommittee, I respectfully urge you to disclose as much information as you can about these policy advisors and “czars.”  Specifically, I ask that you identify these individuals’ roles and responsibilities, and provide the judgment(s) of your legal advisors as to whether and how these positions are consistent with the Appointments Clause.  I hope that this information will help address some of the concerns that have been raised about new positions in the White House and elsewhere in the Executive Branch, and will inform any hearing that the Subcommittee holds on this topic.

Thank you for considering my views on this important matter.  I very much appreciate your commitment to transparency and open government and look forward to your prompt response.

Sincerely,

Russell D. Feingold

United States Senator

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“I don’t think you know who these people are,” said Shadegg, ribbing the media for not holding them “accountable.”

But several of the people in Shadegg’s chart were actually confirmed by the Senate. So-called “Science Czar” John Holdren — second row, third from right — was confirmed unanimously as Director of the White House Office of Science and Technology Policy, way back in March. So-called “Regulatory Czar” Cass Sunstein–fourth row, second from the left — was confirmed as the next administrator of the White House Office of Information and Regulatory Affairs by a 57-40 vote, just last week. So-called “TARP Czar” Herb Allison and so-called “technology czar” Aneesh Chopra have been confirmed the Senate. Shadegg even lists Director of National Intelligence Dennis Blair, who was confirmed by the Senate a week after Inauguration Day, as the “Intelligence Czar.”

Minutes after Shadegg showed this chart, Rep. Marsha Blackburn (R-Tenn.) admitted that there were “10 czars who have been confirmed by the Senate.”

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The Republican with the most to lose from his “aye” vote? Sen. Robert Bennett (R-Utah), who is reeling from several primary challenges in his deep red state.

As was the case during yesterday’s cloture vote, Sens. Blanche Lincoln (D-Ark.) and James Webb (D-Va.) voted against Sunstein. Though he supported cloture for the Harvard law professor, Sen. Bernie Sanders (I-Vt.), who caucuses with the Democrats, also voted “no” on Sunstein’s confirmation. Sen. Al Franken (D-Minn.) presided over the vote.

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On his Fox News show, Glenn Beck occasionally cut to the Senate floor and warned his audience that it was “in danger” if Sunstein was confirmed.

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The only other senator using time to speak on Sunstein’s nomination was Sen. Amy Klobuchar (D-Minn.), who stuck to a character sketch of her old law school teacher, who looked like a “boy in man’s clothes” when she met him at the University of Chicago. OIRA, said Klobuchar, “is a very difficult agency, and no one is quite sure what it does.” Lieberman thanked her and continued to talk about Sunstein’s endorsements from the Chamber of Commerce and the National Association of Manufacturers.

At 4:45pm, the Senate will proceed to vote in relation to the following:

- Final passage of the Travel Promotion Act (S. 1023, as amended)

- The motion to invoke cloture on the nomination of Cass Sunstein to be Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget.

Boren joined others in criticizing the growing trend to name czars to lead efforts in specific areas. … He also singled out Cass Sunstein, who was picked by Obama to be the administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget.

Boren cited Sunstein’s reported views on animal rights, adding they are out of step with those of Oklahomans.

“I don’t believe he should be appointed to anything,’’ Boren said.

Myers does a quick fact-check: “With his nomination sent to the Senate in April, Sunstein does not appear to fall in the same category as a czar.” That’s right. A member of Congress was unaware that Administrator of the Office of Information and Regulatory Affairs is a Senate-confirmed position.

Cass Sunstein (Harvard Law Record)

On January 8, The Wall Street Journal broke the news that Harvard Law School Professor Cass Sunstein would be nominated to run the White House Office of Information and Regulatory Affairs. It was a surprising choice for a job, created in 1980, that monitors and manages the federal government’s regulatory apparatus. And it was welcomed as an olive branch from an incoming Democratic president to conservatives and libertarians.

“[Sunstein's] writings on regulation and the herd mentality deserve a voice in the incoming Administration,” the newspaper’s editorial board wrote, in one of vanishingly few positive assessments it has given Barack Obama’s White House. “Mr. Sunstein brings important qualifications to [the Office of Information and Regulatory Affairs], and Mr. Obama has made a savvy choice in putting him there.” The editorial’s headline emphasized just what a happy surprise the appointment had been: “A Regulator With Promise – Really.”

Image by: Matt Mahurin

Nine months later, Sunstein is still not working at the regulatory office. In May, he went through confirmation hearings before the Senate Committee on Homeland Security and Governmental Affairs. In June, Sen. Saxby Chambliss (R-Ga.) placed a hold on his nomination, citing concerns about Sunstein’s opposition to hunting. In July, Sen. John Cornyn (R-Texas) placed another hold on Sunstein, for the same reason. On August 7, before leaving for recess, Sen. Harry Reid (D-Nev.) filed for cloture on the nomination. But another senator, who has not made his or her name public, has placed a hold on Sunstein, making it unclear when the Senate might take up his nomination.

After the departure of Van Jones, the former White House special adviser for green jobs, enterprise and innovation, Washington has begun to take more seriously an argument made on July 30 by Rep. Eric Cantor (R-Va.) — that  Obama is attempting to expand the number of “czars” in order to sneak radicals into his administration. The president, wrote Cantor in The Washington Post, has appointed a “virtual army of ‘czars’ — each wholly unaccountable to Congress yet tasked with spearheading major policy efforts for the White House.” And Sunstein is often included in that list. According to Rep. Jack Kingston (R-Ga.), who has introduced legislation that would cancel the salaries of presidential appointees who haven’t been confirmed by the Senate, Sunstein is one of 34 such “czars.” Glenn Beck, the TV and radio host who has taken credit for the campaign that ousted Jones, has attacked the man he calls “Regulatory Czar Cass Sunstein” on no fewer than 12 episodes of his Fox News show.

The campaign against Sunstein has largely written itself. One of the most regularly cited legal scholars, the author, co-author, or editor of dozens of books — two of them published since he was nominated to run OIRA — Sunstein has left a trail of theoretical writings and speeches that have provided plenty of ammo for conservative opponents. StopSunstein.com, a Website launched in February by the American Conservative Union, is festooned with out-of-context quotes (”We ought to ban hunting”) and fake newspaper headlines written as if Sunstein’s opinions had become law — “Guns Banned!” and “FCC Pulls Plug on Limbaugh!” Much of the damaging material comes from “Nudge,” a thoughtful 2007 book Sunstein wrote with the University of Chicago’s Richard Thaler, which investigates the possibilities for “libertarian paternalism,” not government control, to encourage good behavior. This, for example, is where the conservative CNSNews.com drew its damaging allegation headlined “Obama Regulation Czar Advocated Removing People’s Organs Without Explicit Consent.”

All of this has proven confusing and frustrating to Sunstein’s conservative and libertarian admirers — some of whom were outspoken opponents of Jones, and opponents of the “czars” who, unlike Sunstein, do not need to be confirmed by the Senate.

In January, the libertarian blogger and law professor Glenn Reynolds wrote a hearty endorsement of Sunstein, telling readers that the nomination “shows that the Obama Administration is perhaps willing to look at new and less intrusive approaches to regulation.” Today, he sees the lengthy campaign against Sunstein as an unflattering example of “how the messed-up appointments process works.”

“I think he should be confirmed,” Reynolds told TWI. “Do I think Sunstein will push a hunting ban? No. Do I think he’s sympathetic to hunting, particularly? No. But what Obama appointee is likely to be? As the Van Jones affair indicates, there are a lot of people worthy of more concern than Sunstein. If I were advising Republicans, I’d tell them to focus their attentions elsewhere.”

That advice was echoed by Ed Morrissey, a conservative blogger at HotAir.com, which published dozens of posts about Jones until he finally withdrew. “I’d prefer to see someone more conservative or moderate in [Sunstein's] position,” said Morrissey, “if it should exist at all. I’m not going to endorse Sunstein, but don’t think that he presents a good target for Republicans to attack. I think that there is a big problem with lumping the ‘czars’ in with those like Sunstein who need Senate approval and have Congressional oversight.”

Ilya Somin, a libertarian law professor at George Mason University, has written at the popular Volokh Conspiracy lawblog that “the czar system does circumvent the regular appointment and confirmation process.” Like Morrissey and Reynolds, he was critical of Beck and other Sunstein critics.

“Sunstein has nothing to do with the ‘czars’ or the problems with the ‘czars,’” said Somin. “The ironic thing is that anybody else who might be appointed to this job would be less qualified, and more liberal. I disagree with what Sunstein writes in ‘Nudge.’ But what he advocates is not as bad as the views likely to be held by other people who could run [the Office of Information and Regulatory Affairs].”

Even if the “czar” issue fades, the attacks on Sunstein’s more controversial views may stick. By far the most damaging critique has been the one that prompted the senatorial holds: Sunstein’s view of animal rights, including the view that humans may sue on the behalf of animals. “If confirmed,” Sunstein told Cornyn in a July 31 letter that effectively ended the hold, “I certainly would not use my position at [the Office of Information and Regulatory Affairs] to promote animal standing in civil litigation.” But David Martosko, a spokesman for the conservative Center for Consumer Freedom, has hammered Sunstein for his views, and done so on two episodes of Beck’s show.

“You can say anything you want during a confirmation hearing,” Martosko told TWI. “Once you’re in place, administrator of [the Office of Information and Regulatory Affairs] is really an ideal job for an animal rights zealot to have. You could decide that the government was no longer able to buy eggs from hens that are kept in cages. All of a sudden, there’s a 90-day warning on the new policy against buying eggs from cooped-up hens.”

On TV and in his interview with TWI, Martosko said that Sunstein was a “disciple” of Peter Singer, the Princeton University ethicist who has taken controversial stands on, among other things, the morality of killing disabled infants “if that was in the best interests of the baby and of the family as a whole.” In an email to TWI, Singer said that he had only worked with Sunstein once, and that Martosko was wildly off base.

“Cass Sunstein has developed his own views on this issue,” said Singer. “You might as well say that Glenn Beck is a disciple of Lyndon LaRouche because they agree on opposing the public health care option.”

But Martosko argued that Singer’s influence on Sunstein was “obvious” from the nominee’s own writing, and from private conversations. “You can never elevate animals,” said Martosko. “All you can do is lower humans to the level of animals. If you’re intellectually honest — and Sunstein is a Harvard Law professor, so I’m sure he has thought through this — you can draw the conclusion from there to organ donation without consent, or to rationing of end-of-life care. There’s nothing special about you. You’re just another animal.”

In the face of that criticism, hardened by the “czars” controversy, Sunstein’s supporters remain frustrated by their lack of progress. Richard Epstein, a libertarian-leaning law professor at the University of Chicago who edited a book about the 2000 election with Sunstein, told TWI that he supported Sunstein’s nomination “notwithstanding the many substantive disagreements between us.”

“The Beck stuff,” said Epstein, “is well over the top.”

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