Hopes and fears for Senate confirmation hearings

Over the next week, two Senate committees will hold confirmation hearings on senior Administration officials who could play key roles in worker health and safety policy.  First, the Senate HELP Committee will meet tomorrow (May 7) to consider the nomination of M. Patricia Smith for Solicitor of Labor.  I wrote previously about Ms. Smith's efforts as NY Commissioner of Labor to address the needs of vulnerable workers, including her creative and aggressive approaches to ensure that workers are paid their legally earned wages.  I hope to hear Ms. Smith discuss how she will direct attorneys in SOL to use the Department's full statutory and administrative authority to protect workers from employers who violate H&S, wage, whistleblower and other labor laws.  Perhaps the new SOL will consider revising the performance measures of Regional SOLs to recognize the value of a trial (and potential positive precedent rulings on H&S) instead of the current emphasis on settlements, settlements, giveaways, settlements.

At this same Senate HELP Committee hearing, the Senators will consider the nomination of Seth Harris to serve as Deputy Secretary of Labor.  Mr. Harris has the potential to do great things at DOL for workers and their families, relying on his past experience at DOL as a senior advisor to Labor Secretary Herman.  I expect him to jump start his new term with lessons learned from his previous DOL experience.

The second confirmation hearing of particular interest to public health and worker health and safety involves President Obama's choice to head OMB's Office of Information and Regulatory Affairs:  Cass Sunstein.  His confirmation hearing is scheduled for May 12 before the Senate Committee on Homeland Security & Governmental Affairs, chaired by Senator Joseph Lieberman (I-CT).  When the President announced his intention to nominate Professor Sunstein for the "regulatory czar" post, I expressed my concern about him based on my reading (though limited) of his writing.  One of his articles, which appeared in the Cato Instituteâs Regulation magazine, brought back bad memories of the Reagan-era OMB and calls for ârisk-riskâ analysis.  Specifically, the theory goes that an OSHA regulation to protect workers from hazard X, could be so costly that an employer would shutter his factory, forcing workers out of their jobs, which would be more harmful than the original hazard.  

I noted then that these types of economic musing may be interesting for high-brow academic dialogues, but whatâs their value to actual decision-making on public health protections?   Thereâs ZERO evidence that the cost of any workplace safety or health regulation caused even a blip on our nationâs economic screen, let alone led to job loss and poverty.  Moreover, I believe that the true cost of failing to protect workers from toxic materials CAUSES under-employment AND povertyâ-and these costs are never measured in economic impact analyses.

Similiar concerns about Professor Sunstein have been raised by others, including the Center for Progressive Reform's Rena Steinzor, who recently wrote:

"...our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administrationâs regulatory czars, John Graham, and his protégé, Susan Dudley."

Professor Steinzor's post today at the CPR Blog is "What I Will be Listening for at the Cass Sunstein Confirmation Hearing"

The Institute for Policy Integrity, on the other hand,  endorses Professor Sunstein to head OIRA, arguing that cost-benefit analysis, if done in an unbiased way, could be used to support progressive environmental and public safety regulations.  They note:

"...cost-benefit analysis, as practiced over the past thirty years, has several flaws that bias it against regulation.  When cost-benefit analysis and regulatory review are biased, socially-beneficial regulation is discredited and undervalued, leading to less protection of the environment, public health, and safety.  ...We advocate for a version of cost-benefit analysis that is not biased against regulation. We see cost-benefit analysis as a technique to separate the wheat from the chaff â to identify which regulation most effectively promote social well-being and generate the highest economic returns."

As I wrote in my January post "Worrisome pick for Obama's regulatory czar," Iâm not prepared to tangle intellectually with a  magna cum laude graduate of Harvard Law School, who was a law clerk to Supreme Court Justice Thurgood Marshall and a law professor for 27 years.  I sincerely hope, however, that Senators on the Committee will press him to explain his regulatory philosophy in terms of current public health and environmental issues pending at agencies.  Please, members of the Senate committee, no rubber stamp of this critical nomination.

Celeste Monforton, MPH, DrPH is an assistant research professor at the George Washington University School of Public Health, and chair of the OHS Section of the American Public Health Association.  She plans to watch the webcast of both confirmation hearings.