Simpler: The Future of (Functional) Government

Cass R. Sunstein delivers keynote address at BU Law's Political Dysfunction conference

Cass Sunstein, Robert Walmsley University Professor and Felix Frankfurter Professor of Law at Harvard Law School, delivered the keynote address at BU Law’s Symposium on America’s Political Dysfunction: Constitutional Connections, Causes, and Cures. Sunstein was the administrator of the White House Office of Information and Regulatory Affairs (OIRA) from 2009-2012. He used his time at OIRA to offer what he termed “nonpartisan reforms” to the political dysfunction assumed and discussed by the symposium.

Sunstein, introduced by Prof. James Fleming as a “veritable one-man think tank,” with a “staggering and inspiring range of ideas,” explained that although his ideas are generally focused on actual, pragmatic, and possible changes, they had some foundations in academia. First, he summarized a line from Justice Felix Frankfurter: that the history of Anglo-American freedom was a history of procedural safeguards. “That line,” Sunstein said, “seemed absolutely dismal to me as a law student.” Now, however, he sees “truth and wisdom in that,” and believes that OIRA’s job is to follow a clear, fair rule-making process.

Second, Sunstein pointed to a John Stuart Mill essay on Jeremy Bentham. Mill’s essay argued that Betham’s way of looking at the world—basically a cost-benefit analysis—did not effectively account for all of the costs and benefits that could not be quantified. The ideas of this very academic essay, Sunstein said, could be seen in President Obama’s Executive Order No. 13563, “a mini-constitution for a the regulatory state.” Exec. Order No. 13563 created “an unprecedented commitment to cost-benefit analysis,” Sunstein said, “but also emphasized the legitimacy of considering qualitative factors.” Thus, though the rule-making process was still a cost-benefit analysis, rule-making agencies were also to consider, for example, “human dignity.”

Third, Sunstein used Friedrich Hayek’s argument that governments need a “mechanism for aggregating knowledge dispersed in society.” When a government agency is writing regulations, Sunstein explained, the public or other government agencies inevitably have information that the rule-making agency does not have but needs. Sunstein said that the rulemaking process, which has includes taking comments from the public, is designed to elicit that information.

In fact, Sunstein said the biggest surprise of his time in government was how seriously comments were taken. Before being in government, he thought that, “the sophisticated view is that when a rule goes out for public comment, it’s already baked.” In other words, though the government offers the rule out to the public on regulations.gov for the public’s comment, the agency does not really take the comments seriously. Quite the contrary, though, Sustein said: “Frequently, the government comes out with a rule thinking it is perfectly sound; comments will reveal otherwise; and the rule will either be abandoned or otherwise changed.” Those comments, Sunstein said, are vital to this process.

Turning these lofty academic ideals into policy is a bit complicated. Essentially, though, Sunstein called for more “evidence-based policymaking.” Evoking a comparison to the book and movie Moneyball, where statistics came to baseball, Sunstein envisions a world where evidence cools the intuitive and partisan fighting he saw.

In this evidence-based world, Sunstein offered five “nonpartisan concepts:” simpler, nudge, choice architecture, human errors, and scientific integrity. First, he wants to make everything—forms, choices, processes, everything—simpler. Complexity creates ambiguity that then creates conflict, Sunstein argued. Additionally, Sunstein argued that simplifying forms is something everyone can agree on, and it can create significant benefits. For example, Sunstein said that an agency rulemaking analysis revealed that simplifying the application for federal student aid would have the same net effect as increasing students’ loans by several thousand dollars each. Though policymakers cannot agree on increasing loans, everyone aggress making a form simpler is a good idea.

Sunstein next argued that nudges and choice architecture are a way to leave the final choice to the individual, but to present the choice in circumstances that make it most likely an individual’s choice will be a cost-saving one. For an example, Sunstin pointed to Senator Tom Cobun’s discussion of automatic enrolling Americans in health care plans during the Affordable Care Act debates. Though economic theory suggests that automatic enrollment should not be any more effective in getting people to enroll than enforcing a penalty if they do not enroll, the differences are huge. Sunstein pointed to study after study demonstrating that the default rules matter. After the lecture, a questioner asked whether this was really just paternalism. Sunstein, however, replied that the government “would create a default anyhow.” In other words, the government would either create a default of enrolled or a default of unenrolled. “There’s going to be a default, so the question is, what’s the right default?” Sunstein said.

Simplification, nudges, choice architecture, and scientific integrity (as required by Exec. Order 13563) are all there to try to ameliorate the effects of human errors, which are of course inevitable. By more broadly implementing these regulatory, procedural reforms, Sunstein argued, we would have a more effective government that created more benefits to its citizens.

The ideas Sunstein presented in this keynote addressed are also discussed in his recently published book, Simpler: The Future of Government.

Reported by Elizabeth McIntyre ('14)
January 10, 2014

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