1. OIRA is not interesting.
If you’re reading this, congratulations on being among the few Americans who care about the Office of Information and Regulatory Affairs. Even most of the members of the Senate Committee on Homeland Security and Government Affairs demonstrated their lack of interest by failing to attend the hearing. OIRA is the Major League Soccer of federal agencies, generally ignored in favor of its louder, bigger cousins. See if you can name the person nominated to head it.
The answer: Howard Shelanski. Sound familiar? Unfortunately, not to most Americans. The current director of the FTC’s Bureau of Economics and professor at Georgetown Law Center, Shelanski received far less press upon his nomination than B. Todd Jones did as Obama’s nominee to head the Bureau of Alcohol, Tobacco and Firearms. And yet, if confirmed, Mr. Shelanski would have a much larger influence on the overall shape of the federal government.
OIRA does not directly interact with the public, but rather with other federal agencies. Its jurisdiction is the very technical area of regulatory review – not the type of thing that easily makes for a gripping headline. Nevertheless, it is often in these tedious details about process that policy is actually determined. The emphasis on politically charged stories over substantively important ones cheapens the national debate and diverts public attention toward spectacle and away from the fundamental operations of government.
2. Everyone agrees about regulation.
“Regulation is required to protect public health and safety, but it also should not impose unnecessary burdens on the private sector.” A variation of this quote could come from almost any politician in Washington, including the Senators present for the hearing. It is nice to find an issue upon which there appears to be broad bipartisan consensus. But of course, that appearance only exists when speaking in the most basic terms. Debate over the specifics contains plenty of room for partisan division. Each side of the aisle would like to strike a very different balance between “public health and safety” and “burdens on the private sector.” In fact, regulation is an issue that speaks directly to the liberal-conservative split over the proper size and role of government in the economy.
This reality makes it all the more incredible that Mr. Shelanski claimed to share the viewpoints of almost every Senator present. While Mr. Shelanski’s vanilla comments were politically savvy in avoiding ruffled feathers, they undermined the true value of the hearing. When no questions dig deep into technical policy issues or force the nominee to clarify vague responses, then the entire practice becomes a recital of prearranged statements and carefully crafted positions. Shelanski repeatedly claimed to be unable to make a strong statement about issues because he was not yet in the agency, and thus did not have a complete understanding of the situation. It is true that serving as OIRA Administrator will undoubtedly improve Mr. Shelanski’s comprehension of what is occurring in the office. But of course, if every nominee had to wait to be confirmed before properly answering the Senators’ questions, then holding hearings in advance would be pointless. Nominees should be compelled to explain their plans in order to provide a better sense of what their course of action will be, even if they later revise it light of new knowledge, in order to provide a better basis upon which their nomination can be assessed.
3. Senator Tom Carper loves family.
Senator Tom Carper (D-DE), Chairman of the Senate Committee on Homeland Security and Government Affairs, opened the hearing by recognizing the other Shelanskis in attendance and thanking the nominee’s family for coming. A polite and kind gesture to start out the hearing. But Senator Carper returned to this theme throughout the proceedings, later congratulating Mr. Shelanski’s parents on their 50 years of marriage, referring to lessons he learned from his own father, and even concluding by asking Mr. Shelanski about his son. Such comments would have seemed very out of place in some of the higher profile hearings taking place around the Hill. No one was concerned about Lois Lerner’s family situation when she was asked to testify. But they set the general tone for this confirmation hearing – respectful, considerate, and somewhat superficial.
Sure, some Republican members pushed for specific commitments from the nominee on areas of regulatory policy, but they refrained from criticizing Mr. Shelanski directly or attempting to make the session truly difficult for him. Meanwhile, Democratic members lobbed soft ball questions about basic regulatory concepts. The committee did not appear to be overly concerned with investigating the nominee.
Now, perhaps this was because Mr. Shelanski had been cooperative leading up to the hearing; he mentioned at one point the previous meetings he had held with several members of the committee. Perhaps it is because he is a qualified and scandal-free nominee, lacking any inflammatory characteristic to spark partisan controversy. All of which leads me to ask why we have confirmation hearings if the majority of them are uninformative cakewalks or mere formalities, even during divided government. It is likely that the procedure of Senate confirmation exercises prior restraint by forcing the administration to weed out “unconfirmable” candidates – but that does not excuse the Senators for failing to adequately screen the nominees that are put forward. It is important to have oversight of all appointees, even those to obscure (but important) positions like OIRA Administrator. I walked away from this hearing without a much better conception of what type of OIRA Administrator Mr. Shelanski will be, because of his evasive responses and the passiveness of the Senators. But for what’s it worth, I do know that his son fences.