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The last mischaracterization I would like to discuss relates to Dr. Graham's

[Page: S7919]  GPO's PDF

   The weight of scientific evidence to date suggests that use of a cellular phone while driving does create safety risks for the driver and his/her passengers as well as other road users. The magnitude of these risks is uncertain but appears to be relatively low in probability compared to other risks in daily life.

   Look at the stated objective of the cell phone study. The report states, ``The information in this report does not provide a definite resolution of the risk-benefit issue concerning use of cellular phones while driving. The objective of the report is to stimulate greater scientific and public policy discussion of this issue.'' Dr. Graham states up-front that the study is promoting further discussion and research on the issue of cell phone use. The report also does not completely rule out the need for regulation; it states that further study is necessary. The Executive Summary states:

   Cellular phone use while driving should be a concern of motorists and policymakers. We conclude that although there is evidence that using a cellular phone while driving poses risks to both the drivers and others, it may be premature to enact substantial restrictions at this time. Indecision about whether cellular phone use while driving should be regulated is reasonable due to the limited knowledge of the relative magnitude of risks and benefits. In light of this uncertainty, government and industry should endeavor to improve the database for the purpose of informing future decisions of motorists and policymakers. In the interim, industry and government should encourage, through vigorous public education programs, more selective and prudent use of cellular phones while driving in order to enhance transport safety.

   Here, as is in the other examples, Dr. Graham is recommending that all data be considered so we can make a smart, common sense decision on any proposed regulation. There is no doubt that as a college professor, Dr. Graham has made some provocative statements on different issues. And I don't agree with all of the statements or considerations he has made, but, I do believe, these statements are within the context of reasonable consideration of the risks and that he has made these statements to promote free thinking to generate thoughts and ideas so we can make the best decisions.

   Mr. President, I don't take any pleasure today in opposing some of my good friends and colleagues on a matter about which they appear to care so much. They have characterized the nomination of John Graham as a threat to our progress in protecting the environment, consumer safety and the safety of the workplace. If I believed that, I would vote ``no'' in an instant. But, contrary to what has been said by his opponents, I find John Graham to be a balanced and thoughtful person. So do other individuals in the regulatory field whom I respect. Dr. Graham has received letters of support from, among others, former EPA Administrator and now head of the Wilderness Society, William Reilly; five former OIRA Administrators from both Republican and Democratic Administrations; 95 academic colleagues; Harvey Fineberg, the Provost of Harvard College, numerous Harvard University professors, and Cass Sunstein, University of Chicago Law Professor. Professor Sunstein has written a particularly compelling letter of support which I would like to read.

   Dr. Graham has supported common sense, well-analyzed regulations because they use resources wisely against the greatest risks we face. That is the best way to assure public support for health and safety regulatory programs. I think Dr. Graham will serve the public well as Administrator of OIRA, and I look forward to working with him on these challenging issues.

   Mr. President, I ask unanimous consent to print in the RECORD the letter from Professor Sunstein.

   There being no objection, the letter was ordered to be printed in the RECORD, as follows:

.

   The University of Chicago,

   THE LAW SCHOOL,

   Chicago, IL, March 28, 2001.
Senator JOSEPH LIEBERMAN,
Senate Hart Office Building,
Washington, DC.

   DEAR SENATOR LIEBERMAN: I am writing to express the strongest possible support for John Graham's nomination to be head of the Office of Information and Regulatory Affairs. This is an exceptional appointment of a truly excellent and nonideological person.

   I've known John Graham for many years. He's a true believer in regulatory reform, not as an ideologue but as a charter member of the ``good government'' school. In many ways his views remind me of those of Supreme Court Justice, and Democrat, Stephen Breyer (in fact Breyer thanks John in his most recent book on regulation). Unlike some people, John is hardly opposed to government regulation as such. In a number of areas, he has urged much more government regulation. In the context of automobile safety, for example, John has been one of the major voices in favor of greater steps to protect drivers and passengers.

   A good way to understand what John is all about is to look at his superb and important book (coauthored with Jonathan Wiener), Risk vs. Risk (Harvard University Press). A glance at his introduction (see especially pp. 8-9) will suffice to show that John is anything but an ideologue. On the contrary, he is a firm believer in a governmental role. The point of this book is to explore how regulation of some risks can actually increase other risks--and to ensure that government is aware of this point when it is trying to protect people. For example, estrogen therapy during menopause can reduce some risks, but increase others at the same time. What John seeks to do is to ensure that regulation does not inadvertently create more problems than it solves. John's concern about the possible problems with CAFE standards for cars--standards that might well lead to smaller, and less safe, motor vehicles--should be understood in this light. Whenever government is regulating, it should be alert to the problem of unintended, and harmful, side effects. John has been a true pioneer in drawing attention to this problem.

   John has been criticized, in some quarters, for pointing out that we spend more money on some risks than on others, and for seeking better priority-setting. These criticisms are misplaced. One of the strongest points of the Clinton/Gore ``reinventing government'' initiative was to ensure better priority-setting, by focusing on results rather than red-tape. Like Justice Breyer, John has emphasized that we could save many more lives if we used our resources on big problems rather than little ones. This should not be a controversial position. And in emphasizing that environmental protection sometimes involves large expenditures for small gains, John is seeking to pave the way toward more sensible regulation, not to eliminate regulation altogether. In fact John is an advocate of environmental protection, not an opponent of it. When he criticizes some regulations, it is because they deliver too little and cost too much.

   John has also been criticized, in some quarters, for his enthusiasm for cost-benefit analysis. John certainly does like cost-benefit analysis, just like President Clinton, whose major Executive Order on regulation requires cost-benefit balancing. But John isn't dogmatic here. He simply sees cost-benefit analysis as a pragmatic tool, designed to ensure that the American public has some kind of account of the actual consequences of regulation. If an expensive regulation is going to cost jobs, people should know about that--even if the regulation turns out to be worthwhile. John uses cost-benefit analysis as a method to promote better priority-setting and more ``bang for the buck''--not as a way to stop regulation when it really will do significant good.

   I might add that I've worked with John in a number of settings, and I know that he is firmly committed to the law--and a person of high integrity. He understands that in many cases, the law forbids regulators from balancing costs against benefits, or from producing what he would see as a sensible system of priorities. As much as anyone I know, John would follow the law in such cases, not his own personal preferences.

   A few words on context: I teach at the University of Chicago, in many ways the home to free market economics, and I know some people who really are opposed to regulatory programs as such. As academics, these people are excellent, but I disagree with them strongly, and I believe that the nation would have real reason for concern if one of them was nominated to head OIRA. John Graham is a very different sort. He cannot be pigeonholed as ``conservative'' or ``liberal''; on regulatory issues, he's unpredictable in the best sense. I wouldn't be at all surprised if, in some settings, he turned out to be a vigorous voice for aggressive government regulation. In fact that's exactly what I would expect. When he questions regulation, it is because he thinks we can use our resources in better ways; and on this issue, he stands as one of the most important researchers, and most promising public servants, in the nation.

   From the standpoint of safety, health, and the environment, this is a terrific appointment, even an exciting one. I very much hope that he will be confirmed.

   Sincerely,
CASS R. SUNSTEIN.

   The PRESIDING OFFICER. The Senator from Tennessee.

[Page: S7920]  GPO's PDF

   Mr. THOMPSON. Mr. President, we have speakers in support. I see my friend from Connecticut. In the interest of balance, if the Senator desires time, I yield. Not my time, of course.

   The PRESIDING OFFICER. The Senator from Connecticut.

   Mr. LIEBERMAN. Mr. President, I thank my friend from Tennessee for his graciousness and fairness. I yield myself up to 15 minutes from the time I have under the prevailing order.

   Mr. President, the nomination of John Graham to administer the Office of Information and Regulatory Affairs, known as OIRA, is an important nomination, although the office is little known. I say that because the office, though little known, has a far reach throughout our Government. It particularly has a significant effect on a role of Government that is critically important and cherished by the public. That is the protective role. This responsibility, when applied to the environment or the health and safety of consumers and workers, is worth a vigorous defense. It is a role which the public wants and expects the Government to play. I fear it is a role from which the present administration seems to be pulling away. It is in that context I view this nomination.

   With that in mind, I have weighed Dr. Graham's nomination carefully. I have reviewed his history and his extensive record of advocacy and published materials. I listened carefully to his testimony before the Governmental Affairs Committee. I did so, inclined, as I usually am, to give the benefit of the doubt to the President's nominees. In this case, my doubts remained so persistent and the nominee's record on issues that are at the heart of the purpose of the office for which he has been nominated are so troubling that I remain unconvinced that he will be able to appropriately fulfill the responsibilities for which he has been nominated. I fear in fact, he might--not with bad intentions but with good intentions, his own--contribute to the weakening of Government's protective role in matters of the environment, health, and safety. That is why I have decided to oppose Dr. Graham's nomination.

   Let me speak first about the protective role of Government. Among the most essential duties that Government has is to shield our citizens from dangers from which they cannot protect themselves. We think of this most obviously in terms of our national security or of enforcement of the law at home against those who violate the law and commit crimes. But the protective function also includes protecting people from breathing polluted air, drinking toxic water, eating contaminated food, working under hazardous conditions, being exposed to unsafe consumer products, and falling prey to consumer fraud. That is not big government; that is responsible, protective government. It is one of the most broad and supportive roles that Government plays.

   OIRA, this office which Dr. Graham has been nominated to direct, is the gatekeeper, if you will, of Government's protective role. OIRA reviews major rules proposed by agencies and assesses information on risk, cost, benefits, and alternatives before the regulations can go forward. Then if the Administrator of OIRA finds an agency's proposed rule unacceptable, they return the rule to the agency for further consideration. That is considerable power.

   This nominee would continue the traditional role but charter a further, more ambitious role by declaring that he intends to involve himself more in the front end of the

   regulatory process, I assume. That is what he said before our committee. I assume by this he meant he will take part in setting priorities in working with agencies on regulations even before they have formalized and finalized their own ideas to protect the public.

   So his views on regulation are critically important, even more important because of this stated desire he has to be involved in the front end of the process. It also means he could call upon the agencies to conduct time-consuming and resource-intensive research and analysis before they actually start developing protections needed under our environmental statutes.

   Some others have referred to this as paralysis by analysis; in other words, paralyzing the intention, stifling the intention of various agencies of our Government to issue regulations which protect the environment, public health, safety, consumers, by demanding so much analysis that the regulations are ultimately delayed so long they are stifled.

   OIRA, looking back, was implicated during earlier administrations in some abuses that both compromised the protective role of Government and undermined OIRA's own credibility. There was a history of OIRA reviewing regulations in secret, without disclosure of meetings or context with interested parties. Rules to protect health, safety, and the environment would languish at OIRA, literally, for years. I am not making that up. Regulations would be stymied literally for years with no explanation. Then OIRA would return them to the agencies with many required changes, essentially overruling the expert judgment of the agencies, which not only compromised the health and safety of the public which was unprotected by those regulations for all that time but also frustrated the will of Congress which enacted the laws that were being implemented by those regulations.

   To be fair, of course, it is too soon to say whether similar problems will occur at OIRA during the Bush administration, and Dr. Graham himself expressed a desire to uphold the transparency of decisionmaking at OIRA. However, the potential for abuse remains. That is particularly so for delaying the process, with question after question, while the public remains unprotected.

   Let me turn directly to Dr. Graham's record. In the hearing on his nomination, Dr. Graham acknowledged, for instance, his opposition to the assumptions underlying our landmark environmental laws

   --that every American has a ``right'' to drink safe water and breathe clean air. Indeed, Dr. Graham has devoted a good part of his career to arguing that those laws mis-allocate society's resources, suggesting we should focus more on cost-benefit principles, which take into consideration, I think, one view of the bottom line, but may sacrifice peoples' right to a clean and healthy environment and a fuller understanding of the bottom-line costs involved when people are left unprotected. Dr. Graham has written generally, for example, that the private sector should not be required to spend as much money as it does on programs to control toxic pollution, that he believes, on average, are less cost-effective than medical or injury-prevention efforts, where presumably more money should be spent. But why force us to make such a choice when both are necessary for the public interest?

   Dr. Graham has said society's resources might be better spent on bicycle helmets or violence prevention programs than on reducing children's exposure to pesticide residues or on cutting back toxic pollution from oil refineries. This is the kind of result that his very theoretical and I would say, respectfully, impractical, cost-benefit analysis produces. Bicycle helmets save lives, and violence is bad for our society. But the problem is that Dr. Graham's provocative theorizing fails to answer the question of how to protect the health of, for instance, the family that lives next to the oil refinery or in the neighborhood. His rational priority setting may be so rational that it becomes, to those who don't make it past the cost-benefit analysis, cruel or inhumane, although I know that it is not his intention.

   Dr. Graham sought to allay concerns by explaining that his provocative views were asserted as a university professor, and that in administering OIRA he would enforce environmental and other laws as written. I appreciate his assurances. But for me, his long-standing opinions and advocacy that matters of economy and efficiency supersede the environmental and public health rights of the citizenry still leave me unsettled and make him an unlikely nominee to lead OIRA.

   Dr. Graham's writings and statements are controversial in their own right, but they are all the more so in light of the actions the Bush Administration has already taken with regard to protective regulations. It began with the so-called Card memo--written by the President's Chief of Staff, Andrew Card--which delayed a number of protective regulations issued by the Clinton administration. The Card memo was followed by a series of troubling

[Page: S7921]  GPO's PDF

   So his views are disconcerting. In the context of this administration and the direction in which it has gone, they are absolutely alarming.

   We have received statements from several respected organizations opposing this nomination. I do at this time want to read a partial list of those because they are impressive: the Wilderness Society, the League of Conservation Voters, the Sierra Club, the National Resources Defense Council, Public Citizen, National Environmental Trust, OMB Watch, AFL-CIO, American Federation of State, County and Municipal Employees, American Rivers, Center for Science and the Public Interest, Defenders of Wildlife, Earthjustice Legal Defense Fund, Friends of the Earth, Greenpeace, Mineral Policy Center, Physicians for Social Responsibility, Southern Utah Wilderness Alliance, the United Auto Workers, the United Food and Commercial Workers International Union, The United States Public Interest Research Group.

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