The Senate is likely to vote in December on the nomination of Susan Dudley to be the new regulatory czar, according to Sen. Susan Collins (R-ME). Despite widespread criticism from the public interest community on the nomination, a confirmation hearing in which Dudley evaded disclosing much about her views, and new concerns about a perception of a conflict regarding her husband serving as head of an office that writes environmental regulations, it appears that Collins's committee will move forward with the nomination.

Collins, the current chair of the Committee on Homeland Security and Government Affairs, was the only Republican member of the committee to attend the November 13 hearing on Dudley's confirmation to administer the Office of Information and Regulatory Affairs (OIRA) at OMB. OIRA is the office that makes final decisions about which federal agencies' regulations are approved, as well as what information is collected by federal agencies.

The incoming chair, Sen. Joseph Lieberman (ID-CT), did not attend but submitted an extensive list of questions to Dudley prior to the hearing. The Democrats on the committee asked Dudley probing questions concerning her views on regulation of arsenic, ozone, the Toxics Release Inventory, and her writings on the economic benefits of regulations generally, as well as her ideas about managing OIRA if confirmed. Dudley has written extensively on the benefits of using market forces to regulate public interest protections rather than having governments issue protective standards. Dudley was most recently on the staff of George Mason University's Mercatus Center, where she was the director of regulatory studies.

The Dudley hearing was another example of how such nominating hearings have become exercises in obfuscation, with the nominee revealing little and vowing openness once confirmed. Generally, Dudley evaded answering specific questions while promising to use OIRA only as the implementing mechanism for agency regulations. Time and again she acknowledged that cost-benefit analysis was but one tool in determining the reasonableness of proposed regulations. Her writings, however, have strongly urged the use of free market solutions to health and safety issues.

Even when pushed on issues by Sens. Carl Levin (D-MI), Mark Pryor (D-AR), and Tom Carper (D-DE), Dudley evaded the questions with answers suggesting that the Senators were reading her writings too broadly or saying she would be willing to talk about these issues once confirmed. For example, Pryor seemed especially vexed by Dudley's position on the "senior death discount." On October 31, 2001, in public comments to the Environmental Protection Agency, Dudley criticized the EPA's stricter standards on arsenic in drinking water, arguing that "EPA's value [per statistical life] likely overstates the benefits of the rule. . . . This can be addressed with sensitivity that estimates benefits based on a value per life-year saved, or an age-adjusted value per life." [Emphasis added.] That is, assigning a monetary value to the life of someone affected by the standard would mean discounting the value of someone with an average of 10 years to live compared with the value assigned to someone with 70 years of life left. In her answers to Pryor, Dudley was deceptive in refusing to acknowledge that calculating how many years was an age-based criterion.

Dudley retreated from only one position. When Collins asked if Dudley really believed that states such as Maine, which are downwind of Midwestern power plant pollution, should be in the position of compensating polluters, Dudley admitted that she "was wrong" and suggested those words were an example of someone engaged in scholarly writings instead of a practical regulatory role.

Collins may have been impressed with this moment of candor as she told the press after the hearing that she was leaning toward supporting the nominee and expected to bring the nomination to a committee vote during the December lame duck session. No other members on the committee have taken positions. However, given the probing questions by the Democrats and evasive responses from Dudley, it would appear that the concern over her nomination will not likely dissipate. Now that the record is closed, one would expect Lieberman to take position on the nominee once his office has reviewed her record.

A recent BNA article emphasized a potential conflict of interest for Dudley. Her husband is an EPA official responsible for regulatory analysis and policy development. The BNA article cites several ethics analysts who question the appearance of conflict and propose ways in which potential conflicts on EPA's regulatory issues might be avoided. No committee members asked Dudley directly about conflicts, but Collins opened the hearing saying that the committee needed to resolve whether there was anything regarding a conflict of interest that would prevent Dudley from doing the job. The Office of Government Ethics has provided a letter to the committee saying it believes Dudley complies with all rules governing conflicts of interest.

OMB Watch has joined with Public Citizen, the United Auto Workers, Natural Resources Defense Council, and the American Federation of State, County and Municipal Employees in sending a letter to Collins and Lieberman opposing Dudley and calling for the committee to reject the nomination. This letter follows on the heels of a letter signed by more than 100 organizations that indicated opposition to the Dudley confirmation.

The fact that Dudley is outside the mainstream in her views on regulatory matters and dodged the tough questions during her confirmation hearing has added to speculation that the Senate Democratic leadership may oppose bringing her confirmation to the Senate floor. There is uncertainty how long the lame duck Congress will stay in session, but increasingly it seems the Dudley nomination will take considerable floor time if the Democratic leadership opposes her nomination.

A few weeks ago, we requested that you to take action against this nomination. Now that it is clear that Collins wants to send her nomination to the floor, we ask you again to contact your Senators, while they are examining Dudley's record, and urge them to oppose her nomination. Her refusal to honestly answer questions about her beliefs and plans as OIRA director prevents Senators from exercising their constitutional responsibility of advice and consent. If left with only her writings to gauge her beliefs, then the Senate should reject this nominee.