Desperately Smearing Susan
Liberal, pro-regulatory groups attack another Bush nominee.


Jonathan H. Adler

Despite Dudley’s substantial qualifications, including experience in several federal agencies, Public Citizen president Joan Claybrook called her “unfit” and labeled the nomination “another attack by the Bush administration on the government’s ability to hold industry accountable and keep Americans safe.” According to Claybrook, “public health and safety depend” upon the Senate’s rejection of Dudley’s nomination. OMB Watch’s Robert Shull labeled Dudley an “industry-backed extremist,” while Shull’s colleague Genevieve Smith alleged that Dudley’s record reveals “a hostility toward environmental, health, and safety regulations that is ideological and virtually total.” Clean Air Watch blogged that “putting Dudley in this job is like naming Mel Gibson as a special Mideast Peace Envoy.”

The false charges against Dudley began when word of her possible nomination was first leaked in the press. On July 6, the Center for American Progress’s blog, “Think Progress,” alleged that Dudley “opposed measures to curb global warming.” Yet the document cited by Think Progress was written by another Mercatus analyst, not Dudley. Nor had Dudley become the director of regulatory studies at the time it was written. Nonetheless, the charge was picked up and repeated by Media Transparency, Mother Jones, and throughout the blogosphere. Think Progress has yet to issue a correction.

Once Dudley was officially nominated, the false charges continued. Liberal blogger Joshua Micah Marshall accused Dudley of opposing fire-retardant kids’ pajamas. Yet the article Marshall cited says nothing of the kind. It cites federal regulations concerning children’s pajamas, along with federally mandated low-flow toilets, as examples of how federal regulations impose costs and limit choices for consumers from “the moment we wake up in the morning” until the time we go to bed. Dudley’s article argued for a more complete accounting of the “hidden tax” imposed by regulations, but not the repeal of any specific measure regarding children’s apparel or anything else. Like the earlier false charges, Marshall’s claim was uncritically repeated by others throughout the blogosphere, including the respected liberal economist J. Bradford DeLong.

Interestingly enough, the same groups leading the campaign against Dudley were equally hysterical in their attacks on the nomination of her predecessor John Graham, former director of the Harvard Center for Risk Analysis. When Bush nominated Graham to OIRA, OMB Watch criticized his “fierce, ideological opposition to new regulation” and alleged he had “demonstrated consistent hostility to protections for public health, safety and the environment over his career.” Public Citizen decried Graham’s alleged ties to industry and accused him of playing “a leading role opposing strong government safeguards” from his perch at Harvard. Public Citizen complained that the Center (like Mercatus) received corporate contributions. (Conveniently enough, Public Citizen does not release a breakdown of its own funding.)

Now these same groups claim Dudley would be much worse–“ten times worse,” according to OMB Watch. Public Citizen’s Laura MacCleery says replacing Graham with Dudley “is like trading in a scalpel for a sledge hammer.” Clean Air Watch’s Frank O’Donnell is even more hyperbolic, saying “Susan Dudley makes John Graham look like Ralph Nader.”

Contrary to the caricature that was painted prior to his confirmation, Graham was more of a benefit-maximizing technocrat than an anti-regulatory crusader. Graham blocked some proposed regulations and forced federal agencies to conduct more rigorous cost-benefit analyses of new rules. At the same time, he was the first OIRA director to issue “prompt letters,” calling for agencies to adopt new regulations that could be particularly cost-effective at reducing threats to public health. He greatly increased the transparency of OIRA review. Despite these actions, however, don’t expect to here Graham praised by any pro-regulatory group.

All indications suggest Dudley would hew closely to the course set by Graham and pursued by the administration to date. This is one reason the Washington Post labeled Dudley Graham’s “obvious successor.” Dudley worked at OIRA in the Reagan and first Bush administrations, as well as in several of the agencies whose regulatory activities OIRA helps oversee. Like Graham, Dudley advocates “increased attention to sound regulatory principles,” such as those embodied in the Reagan and Clinton executive orders on regulatory review. She has also praised Graham’s efforts, and written that the Bush administration “can boast several regulatory and deregulatory initiatives that benefited from careful analysis and consideration of tradeoffs.” No less important, the ability of Dudley — or any potential OIRA administrator–to alter regulatory policy is limited under federal law. The federal government’s top regulatory official is anything but an autocrat–let alone a “regulatory czarina.”

Dudley’s critics like to pretend that any criticism or skeptical analysis of environmental or safety regulations amount to an assault on public health. Nothing could be further for the truth. Some of Dudley’s critics focus on her critique of the Clinton administration’s proposal to lower permissible levels of arsenic in drinking water. But this is hardly evidence of anti-environmental zealotry (as I argued here). Indeed, even a cursory read of Dudley’s analysis reveals a careful and thoughtful analysis focused on maximizing the net benefits to public health. While some communities could benefit from a more stringent arsenic standard, Dudley observed, in other places uniform federal standards could actually harm public health by diverting resources from more pressing concerns.

As those of us who know her can attest, Dudley is a careful analyst and a committed conservationist. Where some environmentalists preach a green lifestyle, Dudley actually lives it — driving a hybrid vehicle before it was “in,” and working to conserve forty acres of her own land in northern Virginia through private conservation.

Given the hyperbole and outright falsehoods lodged against her, opposition to Dudley seems less motivated by her record and experience than by an antipathy for Bush-administration regulatory policies. Dudley’s credentials and experience, both in and out of the federal government, will make her an effective champion of the administration’s regulatory philosophy. In this regard, any thoughtful, analytically trained, and experienced regulatory official is a threat, because she would make the administration more effective. If activist groups object to Bush regulatory policies, they should oppose them on the merits, instead of smearing a principled and qualified nominee.

Contributing Editor Jonathan H. Adler is professor of law and co-director of the Center for Business Law and Regulation at Case Western Reserve University School of Law. He was a visiting senior scholar at the Mercatus Center and visiting associate professor at the George Mason University School of Law during the Fall 2005 semester.