Sunstein Watch: Randall Lutter on Loan, Says OMB -- Yet WashPost Reports He's Actively Involved

by Rena Steinzor

December 03, 2009

As reporters dug deeper on our post yesterday about the return of Randy Lutter, chief economist at the Food and Drug Administration (FDA) under the George W. Bush Administration, to “regulatory czar” Cass Sunstein’s office, OMB spokesman Tom Gavin worked to downplay the significance of Lutter’s reappearance. Gavin confirmed that Lutter was in fact ensconced in OIRA, as reported by Inside EPA this morning, but said he was merely “on detail” from the FDA as a career civil servant who would report up the chain of command to Sunstein. The implication, of course, is that Lutter would have little influence on policy.

How heartwarming that argument must have been for civil servants at OIRA and elsewhere. As my colleague Sid Shapiro and I argue in a forthcoming book (The People's Agents and the Battle to Protect the American Public, arriving in spring), civil servants are the backbone and future hope of good government. Precisely because they play such an important role, their policy positions from past lives deserve scrutiny. And Randy Lutter is not a typical civil servant. Rather, he rose through the ranks both at OIRA and within FDA, while advancing the most rigid iterations of cost-benefit analysis. In fact, he is so widely known that word of his return to OIRA was spread to outside advocates like me by agitated civil servants, who see his return as further evidence that that OIRA is going to continue business as usual from Bush II.

In addition to downgrading the value of a lead-poisoned child’s IQ point to $1,500 because we should not transfer “wealth” from parents to children by asking parents to pay for their poisoned kids’ medical treatment, Randy Lutter has argued, in a seminal paper written for the American Enterprise Institute with his right-wing colleagues Kip Viscusi and Robert Hahn, that stringent health and safety regulations make people worse off because they make electricity, health care, and other life essentials more expensive. Lost from these elaborate calculations is any recognition that when people get sick from pollution, their care and their diminished quality of life are worth a lot of money, not to mention the important consideration that such protections are required by statutes passed by Congress and are not up for the reconsideration Lutter and his colleagues strongly urge.

OIRA is a tiny office, with somewhere between 30 to 40 professional staff. Its professional economists wield potentially huge influence over important regulatory decisions.

Proof of Lutter's active participation in important policy debates was provided by a Washington Post story up today reporting that Lutter "is now probing whether a rule to cut sulfur dioxide emissions would cost coal-fired utilities too much."

To be sure, the final buck on how OIRA behaves stops with Cass Sunstein. Holding Mr. Sunstein and his two deputies, Michael Fitzpatrick (a political appointee) and Kevin Neyland (a career employee) responsible for these outcomes assumes that the public is even able to discover what happened at the staff level. At the moment, OIRA’s communications with other federal agencies over regulatory policy are shrouded in secrecy. Posting these documents on the Internet and running a more transparent process is the only way to lend legitimacy to the notion that senior staff like Randy Lutter returned to OIRA to support a protective policy agenda rather than to sabotage it.

Tagged as: Randall Lutter
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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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