right. The bass is in your court, but you don't have to dribble it. The court has made its decision. Labeling is not to be reviewed through the Paperwork Reduction Act as a paperwork clearance activity.

Senator BINGAMAN. Thank you, Mr. Chairman.

Chairman GLENN. Thank you.

You have referred to expertise at OMB. Is lack of expertise a major problem? Is the problem also small staff and a lot of regulations coming in? Mr. Bass?

Dr. BASS. Absolutely. Rougly three dozen individuals are mandated with overseeing all Government regulations, all information activities. And on top of it now we have the information resources management of the Government. We are talking about enormous tasks. These are individuals that are largely young, bright folks who have come out of college, that have been thrust into this very important task, and unfortunately many of the tasks involve having scientific understanding, such as this risk assessment issue, or for that matter, scientific understanding of research design, which most don't have. So, clearly, this is a core problem.

But it is one of many problems. For example, what I don't want you to interpret my response to be is why don't we just add another 100 people to OIRA and beef up their skill level and we'll be in great shape. That isn't the answer. The answer is to delegate the responsibility to the agency where the expertise exists.

Chairman GLENN. Well, basically that is what the bill does; instead of making everything at OMB, it would disseminate some of it downhill, but still give OMB the right to come in on issues where it feels there is something wrong going on.

Dr. BASS. Absolutely.

Chairman GLENN. Now, do you agree with that? I don't know whether Ms. Ettleson would or not. She was very critical of OMB. Would you agree with the bill's provision for OMB to come in and pick up things it thinks are wrong, rather than having to pass on everything?

Ms. ETTLESON. Well, they should be offering more of a coordinating function rather than entering into the process in a substantive way and offering-they don't need to be offering-expertise in an area of scientific nature.

Chairman GLENN. Let me ask this: If the bill passed, do you think OMB should still have the power to go into a regulatory agency and say, "No, we disagree with this one. We're going to take that out"?

Mr. VLADECK. Senator Glenn, we disagree with that concept. We don't think that, when Congress has delegated decision-making authority to the Secretary of Labor, that Office of Management and Budget ought to be able to look over his shoulder or her shoulder and say, "No, we disagree with that decision."

Chairman GLENN. You would prefer to have OMB completely out of the loop?

Mr. VLADECK. Right. But we recognize that that is not likely to happen.

Chairman GLENN. I think you're correct. [Laughter.]

Mr. VLADECK. Right. And so as our fallback what we would urge

gress and the public can have some window into what OMB is doing. But we think that most of our concerns would be addressed. Chairman GLENN. Let me ask something then. Let's assume for a minute that we cut OMB clear out of the loop. Who would regulate the regulators? That was the purpose of the PRA to begin with; years ago you had regulators running wild. The PRA was a way to sort of rein them in a little bit, within reason.

Somebody has to give a second opinion to places where people might otherwise just go regulatory-crazy. How do we do that? OMB would not do it and things would all be put back to the agencies? Mr. VLADECK. I think in order to answer your question we have to clearly divide OMB's paperwork review function, which we do not oppose and which we would simply like to see strengthened and allocated in a way that is more responsive to the real paperwork burdens, on one side of the ledger, and OMB's authority under the Executive Orders, power Congress has never conferred and in fact Congress every time it has considered has expressly denied to OMB, to review substance of regulations.

On that side of the ledger, Senator Glenn, we would submit that the President appoints the head of the EPA, the head of OSHA, the head of the Department of Labor. It's hard for me to imagine that Jim Watt or Rita Lavelle or Elizabeth Dole was a wild-eyed regulator who was sort of going to allow regulations to leave their department that posed needless burdens on industry.

We pick-the President picks-his or her Cabinet officers on the basis of a shared sense of political ideology which ultimately is reflected in the rulemaking process. Congress remains available to do oversight; the courts remain available to overturn agency actions that are imprudent.

One of the great myths of OMB's ability in the regulatory field is, I think, shown by the degree to which OMB-rewritten rules get overruled in the courts. If you cast as one indicia of the reasonableness of a rule the ability of the rules to survive judicial review, OMB gets an F-minus.

In virtually all of the health and safety rules that OMB has directed OSHA to change in some way, the courts, including courts staffed by judges appointed by President Reagan, have rejected OMB's rewritten rule. They did it in ethylene oxide, they did it in formaldehyde, they did it in the hazard communication, they have done it in Tampon labeling. I could spend a long time boring you with these illustrations, but there is no evidence at all to suggest that OMB has improved the quality of decision-making in regard to the regulations.

Chairman GLENN. We are going to have to move along here, but did you have a comment?

Dr. Bass. I just wanted to make a point on your question. The question is a very difficult one to answer because a number of scholars have tried to answer precisely what you are asking, which is: How should the regulatory process change in Government?

And I think Professor Sunstein, as he says in his testimony, it's that the administrative part of Government has grown enormously and Congress has not responded to that. And I think that that is a very appropriate role for Senator Bingaman's subcommittee to

what the proper role is for agencies, for OMB, for the public, for Congress, and so on.

Chairman GLENN. Okay. Thank you all very, very much. Very good. We may have additional questions for you. We appreciate your being here this morning.

Our next and final witness is Professor Cass Sunstein, University of Chicago Law School.

Professor Sunstein, welcome. We look forward to your testimony. Your entire statement will be included in the record if you have a summarized version that you are going to give.

TESTIMONY OF CASS R. SUNSTEIN, PROFESSOR, UNIVERSITY OF CHICAGO LAW SCHOOL1

Dr. SUNSTEIN. Thank you very much, Mr. Chairman. In that case I will be brief, especially since it is after noon.

I am delighted to be here in particular because probably the most important development in the entire regulatory process in the last decade-and the last decade has seen a lot of important developments-has been the rise of OMB supervision of regulation. It sounds less dramatic than substantive amendments to the Clean Air Act or changes in OSHA, but it is probably a whole lot more important than those. And this bill, if enacted, would be the first response by Congress in the entire decade to this new development. And I think something like this, it's about time. We have had a lot of experience with the OMB process.

Now, I am delighted to be here not merely because of the importance of the OMB review process but also because the bill is basically a very solid one which would move the regulatory process in precisely the right directions.

I am going to be speaking about issues of constitutional law primarily and, to some degree, of legal policy. I will say relatively little about issues of public policy, and I won't talk very much at all about those parts of the bill that relate exclusively to the Paperwork Reduction Act. In other words, my focus will be on OMB and the regulatory process, the environment, et cetera.

Now, the general conclusion, as I said, is that this is a sound bill and that the objections of the Department of Justice and of the Office of Management and Budget should be taken with many grains of salt, especially insofar as those objections go to the fundamentals of the bill.

The Department of Justice has made a lot of separation of powers arguments in the last decade, and the Department of Justice has lost in the Supreme Court quite frequently. So one wants to be very cautious with an argument by the Department of Justice that an effort by Congress to regulate the Executive Branch violates the principle of separation of powers.

More particularly, let me outline some details about this bill which seem to me to be not terribly controversial and ought to be endorsed by just about everyone.

Insofar as the bill reflects a statutory rather than administrative resolution of this issue, we all ought to be for it. The administra

tive agreement is a step in the right direction, but it is unlikely to bring about sufficient compliance; it is not permanent; it does much less than a statute would.

So, for reasons suggested by Senator Bingaman and others, this is preferable to what is going on on the House side.

Contrary to what was said on the previous panel, it is quite sensible for Congress to endorse, as this bill does, OIRA's power over the administrative process. One wants to divorce, I think, particular abuses of the Reagan Administration and, perhaps I don't know of the Bush Administration from the question whether this institution is a good idea. And it's very hard to imagine why any President or any person thinking about American Government would be against the idea that there should be an entity in American Government entrusted with coordinating regulation and ensuring that regulation complies basically with what the President wants, subject to Congress' power to make law.

So, insofar as this bill endorses OIRA's basic role, I think we all ought to be for it.

Insofar as the bill responds to the problem of delay, it does something very important that can be accomplished only by statute. The deadlines are really a very, very good idea.

Insofar as the bill is an effort to restrict and require disclosure of communications between OIRA and private persons, there is no objection to it. There is only enthusiasm for it. And I think in the end the Department of Justice would agree with that position, at least as a matter of law.

There is no legal obstacle to an effort by Congress to say that when the Executive Branch is making a rule and communicating with people outside Government, that communication is something the public has the right to know about. So we want to distinguish here between communications between OIRA and outside parties, members of the chemical Manufacturers Association or, for that matter, members of Public Citizen, distinguish between that on the one hand and internal deliberations between White House staff, say, and the EPA.

Insofar as we are talking about communications with people outside the Government, make it public, that's just great.

Insofar as we are attempting to disclose to the public facts introduced by OIRA into the rulemaking proceeding, publicity with respect to facts introduced by OIRA is perfectly lawful. No problem there. There is a kind of cryptic statement in the Justice Department's memorandum on this issue which acknowledges precisely this point. If OIRA is introducing new facts into the process, there is no legal problem with a congressional requirement of disclosure. So, too, if OIRA is meeting with people and having lots of meetings or a few meetings and Congress wants to supply lists to the public of numbers of meetings and times and dates of meetings, that is fine. That doesn't interfere with the deliberative process.

Now, what I have said so far suggests that most of this bill raises no serious legal issue. The Constitution isn't implicated with respect to the vast majority of it. And as a matter of legal policy, there is a whole lot to be said for it.

There is one problem with the bill, and that is the requirement

the form of communications between, say, EPA and OIRA be disclosed to the public. Now, what I am thinking about here is, suppose there is an EPA rule that is a draft and then OIRA has comments on it saying it's bad policy, and then EPA comes back saying, no, it's good policy, and gives some reasons why. Then there is a debate and discussion.

Now, when we are talking about that sort of internal deliberative process, it has some of the same characteristics as communications between a judge and his or her law clerks, between staffs of the Senate, between law clerks with each other and so forth.

The case of United States v. Nixon recognizes Executive privilege, which suggests there is a constitutional right on the part of the President to keep secret communications between the President and his high-level advisors.

Now, I am disappointed by the Justice Department's analysis of this issue because the issue is complicated, not simple. But at least there is a plausible argument that the requirement of disclosure of internal deliberations on matter of policy would violate Article 2 of the Constitution, as understood in United States against Nixon.

Now, the case isn't so simple. It's complicated because we are not talking about the President himself and it may be that Executive privilege doesn't apply to people who aren't the President and because it may be that just like in the Nixon case the allegations of abuses, about which we have heard a lot this morning, that the allegations of abuses provide a significant public interest to require disclosure just like in the Nixon case itself, where Executive privilege even with the President was overcome because of the interests in a fair criminal trial. So the case is a complex one, but at least there is a serious constitutional issue.

Counting votes is always hazardous. [Laughter.]

But I would guess this part of the bill, the requirement of policymaking deliberations being disclosed to the public, I would guess that this part of the bill would be invalidated by the District of Columbia circuit and upheld by the Supreme Court in a hotly contested and closely divided vote.

Notwithstanding those predictions, I think probably the thing to do here is to change the bill as far as it requires disclosure of internal deliberative processes; and here is why:

This requirement is unusual and unprecedented. FOIA doesn't require it. This requirement raises a serious public policy issue insofar as it would interfere with the unimpeded give-and-take that any branch of Government needs. OIRA already is willing to agree that it would disclose this. And finally there is a possibility that the Supreme Court would strike this one down.

Now, that leaves, as I said, to a pretty simple solution. The simple solution is that section 112 of this bill is sound except in this particular, and this particular is something that could be solved through an administrative agreement requiring disclosure. That is to say, some partial deletions from this bill of disclosure of internal deliberations would save a big headache and a difficult constitutional case, ensure constitutional validity, and at the same time an administrative agreement would be able to bring about dis