CASS SUNSTEIN

• Contributing editor to The New Republic and The American Prospect
• Played an active role in opposing the impeachment of President Bill Clinton in 1998
• Served as an advisor for Barack Obama’s presidential campaign in 2008
• Was appointed (by Barack Obama) to head the White House Office of Information and Regulatory Affairs in 2009

Born in September 1954, Cass Sunstein earned a BA degree from Harvard College in 1975. Three years later, he received a J.D. from Harvard Law School, where he had served as executive editor of the Harvard Civil Rights-Civil Liberties Law Review.

After graduating from law school, Sunstein clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court (1978-1979), and then for U.S. Supreme Court Justice Thurgood Marshall (1979-1980).

From 1980-81, Sunstein worked as an attorney-advisor in the Justice Department’s Office of Legal Counsel, and then took a job as an assistant professor at the University of Chicago Law School in 1981. Two years later he also became an assistant professor in the Department of Political Science. In 1985 he was made a full professor of both law and political science. He would continue to teach full time at the University of Chicago Law School until 2008, at which time his status changed to that of Visiting Professor. Today he also holds the title of Felix Frankfurter Professor of Law at Harvard Law School.

In 1992 Sunstein expressed his view that the office of the U.S. presidency should be elevated to a position higher than that of the president's administration generally, and that the Constitution should be viewed as a "living," evolving document:

"Now, it is alarming to people who want to believe in the unitary executive, like me, that the 19th-century writers thought this was self-evident. [The unitary executive theory holds that a powerful president controls the entire executive branch.] That's the policy recommendation and the conclusion that the Constitution is largely, not entirely, but largely irrelevant. Now, I say what I've said about the Constitutional matter with considerable regret. I wish it weren't so. The executive department's vision of the Constitution, with the president on top and the administration below, has elegance and simplicity and tremendous appeal. It would make much more sense, I submit, given our current situation, to have a Constitution in which the president is on top of administration is below. But that was not the founder's original conception. The Constitution does not speak in those terms…. Because the conclusion that I've reached seems to me so unfortunate, I'm trying hard to figure out what can be done about it…. One thing that perhaps can be done about it is to say, well, we shouldn't really be originalists about the meaning of the Constitution. Maybe Judge Bork had wrong. Maybe we should think that the Constitution has a high degree of flexibility. Maybe it's a changing and living document. Now, under that conception of Constitutional interpretation, maybe we can have the ingredients of a new unitary executive idea."

In 1993 Sunstein published the book The Partial Constitution, which contains a chapter titled "It's the government's Money," wherein Sunstein writes that “the Constitution ... forbids government from refusing to pay the expenses of abortion in cases of rape or incest, at least if government pays for childbirth in such cases.” By Sunstein’s reckoning, a system whereby the government funds childbirth but not abortion "has the precise consequence of turning women into involuntary incubators" and "breeders" whose bodies are sacrificed "in the service of third parties" (i.e., fetuses).

With regard to citizens who object to having their tax dollars finance abortions, Sunstein writes:

"There would be no tension with the establishment clause if people with religious or other objections were forced to pay for that procedure (abortion). Indeed, taxpayers are often forced to pay for things – national defense, welfare, certain forms of art, and others – to which they have powerful moral and even religious objections."

Also in The Partial Constitution, Sunstein promotes the notion of a "First Amendment New Deal" in the form of a new "Fairness Doctrine" that would authorize a panel of "nonpartisan experts" to ensure that a "diversity of view[s]" is presented on the airwaves.

According to Sunstein, private broadcasting companies do a disservice to the American public by airing programs only if their ratings are high enough, or airing commercials only if advertisers can afford to pay the cost of a 30- to 60-second spot:

"In a market system, this goal [of airing diverse views] may be compromised. It is hardly clear that 'the freedom of speech' is promoted by a regime in which people are permitted to speak only if other people are willing to pay enough to allow them to be heard."

"If it were necessary to bring about diversity and attention to public matters," Sunstein writes, "a private right of access to the media might even be constitutionally compelled. The notion that access [to the airwaves] will be a product of the marketplace might well be constitutionally troublesome." Government, he says, has a moral obligation to force broadcast media companies to air commercials that represent a "diversity" of views:

"The idea that government should be neutral among all forms of speech seems right in the abstract, but as frequently applied it is no more plausible than the idea that it should be neutral between the associational interests of blacks and those of whites under conditions of segregation."

According to Sunstein, the judicial system should issue rulings to make it clear that private media companies do not have the final say in rejecting "diversity" commercials.

Asserting that government regulation of the broadcasting industry is consistent with the spirit of the Constitution, Sunstein writes: "It seems quite possible that a law that contained regulatory remedies would promote rather than undermine the 'freedom of speech.'" Sunstein proposes "compulsory public-affairs programming [and] content review by nonpartisan experts or guidelines to encourage attention to public issues and diversity of view."

Reasoning from the premise that public television stations provide benefits to society that profit-driven private enterprises do not, Sunstein calls for a government mandate that "purely commercial [television] stations provide financial subsidies to public television or to commercial stations that agree to provide less-profitable but high-quality programming."

In 1998 Sunstein said that "a progressive consumption tax would be a really good thing" that "hardly anyone would be hurt by."

Also in 1998, Sunstein said the following about socialism:

"I dont have anything good to say about socialism in the abstract. If what's understood by socialism is efforts to insure that people don't live under desperate conditions, well, you know, Roosevelt and Madison and Jeferson were all socialists. I think that … these abstractions often can just create holy wars where people might really be able to be in agreement....

"If what socialism means is public ownership of the means of production, I think that is a recipe for economic disaster and democratic failure of the worst kind. The socialist ideal, which [dates] back to Aristotle, of human flourishing, is, that's great. That's Roosevelt's ideal. And Johnson's too, and Dewey's....

"Economic equality is a dangerous ideal and something that people should be frightened of, and not happy about. But …. if what you mean by economic equality is floors for everybody and ceilings for everybody, well, floors, absolutely. Ceilings? Probably. A consumption tax. Certainly a consumption ceiling. Great."

Sunstein played a particularly active role in opposing the impeachment of President Bill Clinton in 1998.

On April 14, 1999, Sunstein published an opinion piece in The Chicago Tribune titled “Why We Should Celebrate Paying Taxes.” He wrote:

“In what sense is the money in our pockets and bank accounts fully ‘ours’? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live?… Without taxes there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and exercise their rights without placing any burden whatsoever on the public fisc. … There is no liberty without dependency. That is why we should celebrate tax day …”

In his 2001 book, Republic.com, Sunstein argued that the Internet posed a threat to democracy because it promoted cyberbalkanization, a phenomenon whereby people isolate themselves ideologically within groups that share their own political perspectives, while turning a blind eye to any views or facts that might challenge their beliefs. To counter this tendency, he called for government-imposed diversity on websites promoting a particular political perspective. Specifically, he suggested that all partisan websites should feature “electronic sidewalks” providing links to resources that offer opposing views. In a 2001 interview, he elaborated:

"Sites of one point of view [would] agree to provide links to other sites, so that if you're reading a conservative magazine, they would provide a link to a liberal site and vice versa, just to make it easy for people to get access to competing views. Or maybe a pop-up on your screen that would show an advertisement or maybe even a quick argument for a competing view. [break] The best would be for this to be done voluntarily, but the word 'voluntary' is a little complicated, and sometimes people don't do what's best for our society unless Congress holds hearings or unless the public demands it. And the idea would be to have a legal mandate as the last resort, and to make sure it's as neutral as possible if we have to get there, but to have that as, you know, an ultimate weapon designed to encourage people to do better."

Several years later, Sunstein retracted this suggestion as a "bad idea."

Sunstein's views about human cloning have been the subject of some controversy. By his reckoning, cloning should pose no moral dilemma because human embryos are "only a handful of cells."

In a 2002 paper (titled "Is There a Constitutional Right to Clone?") for the Harvard Law Review, Sunstein wrote:

"Moral repugnance might well be a response to vaguely remembered science fiction stories or horror movies, or to perceptions based on ignorance and confusion (as in the idea that a clone is a complete 'copy' of the original, or a 'copy' that is going to be evil)."

Added Sunstein:

"For some people, cloning might be the only feasible way to produce a biological offspring. It would certainly not be ludicrous to say that as a matter of constitutional law, the state has to produce a strong justification for intruding on that choice in cases in which it is the only realistic option."

In 2003 Sunstein wrote:

"It is silly to think that 'potential' is enough for moral concern [about cloning]. Sperm cells have 'potential' and (not to put too fine a point on it) most people are not especially solicitous about them.”

Sunstein is an animal-rights activist who once said, in a speech at Harvard University: “We ought to ban hunting, if there isn’t a purpose other than sport and fun. That should be against the law. It’s time now.” He also has stated that livestock and wild animals should have legal “rights” and should be empowered to file lawsuits; that the human consumption of meat is a practice that should be ended permanently; and that the use of animals for work, entertainment, science, and food is akin to “human slavery.” "[T]here should be extensive regulation of the use of animals in entertainment, scientific experiments, and agriculture," Sunstein wrote in a 2002 working paper while at the University of Chicago Law school. He expanded on these ideas in his 2004 book Animal Rights: Current Debates and New Directions.

Also in 2004, Sunstein published The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever. Arguing that citizens’ rights exist only to the extent that they are granted by the government, the book drew its inspiration from President Franklin Roosevelt's 1944 proposal of a new Bill of Rights. WorldNetDaily reports that among the mandates laid out in the book are the following:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation;
• The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
• The right of every family to a decent home;
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
• The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
• The right to a good education.

In The Second Bill of Rights, Sunstein states that "if the nation becomes committed to certain rights [such as the foregoing], they may migrate into the Constitution itself." He adds that "at a minimum, the second bill should be seen as part and parcel of America's constitutive commitments." Another notable quote from the book is the following:

“Much of the time, the United States seems to have embraced a confused and pernicious form of individualism. This approach endorses rights of private property and freedom of contract, and respects political liberty, but claims to distrust ‘government intervention’ and insists that people must fend for themselves. This form of so-called individualism is incoherent, a tangle of confusions.” (p. 3)

As noted earlier, Sunstein agrees with Supreme Court Justice Stephen Breyer’s assertion that the Constitution is a “living” document whose meanings and mandates change with the passage of time. According to The Weekly Standard:

“Sunstein would give up on the idea that law is supposed to be an apolitical discipline in which practitioners put aside their political beliefs. The judiciary Sunstein contemplates would have Democratic and Republican caucuses.”

Contending that “the judiciary is already politicized," Sunstein says the notion that "judges are not policymakers" is a "myth." Judges’ “political commitments,” he states, “very much influence their votes." He contends that "judges are subject to conformity pressures, and like-minded judges go to extremes, in the sense that ideological predispositions are heightened when judges are sitting with others who were appointed by presidents of the same political party."

In 2005 the American Constitution Society (ACS) sponsored a conference at Yale Law School titled "The Constitution in 2020," whose purpose was to give liberal/left lawyers and judges a forum wherein they could trade ideas on what they would like the U.S. Constitution to look like 15 years down the road, and how they could influence it toward that end. Sunstein participated in this forum, where he put forth his ideas about a "Second Bill of Rights.” The Weekly Standard offered this assessment of the goals of the ACS forum:

“The essence of the progressive constitutional project is to recognize ‘positive’ rights, not just ‘negative’ rights, so that citizens are not only guaranteed freedom from specified forms of government interference, but also are guaranteed the receipt of specified economic benefits. The bottom line is that Congress would no longer have the discretion to decline to enact liberal policies. The triumph of the left would be constitutionally mandated.”

Sunstein has argued in favor of expanding wefare benefits and redistributing wealth in the United States, but contends that the country's "white majority" opposes such a development because of deep-seated racism:

"The absence of a European-style social welfare state is certainly connected with the widespread perception among the white majority that the relevant programs would disproportionately benefit African Americans (and more recently Hispanics)."

Sunstein depicts socialist nations as being more committed than their capitalist counterparts to the welfare of their own citizens:

"During the Cold War, the debate about [social welfare] guarantees took the form of pervasive disagreement between the United States and its communist adversaries. Americans emphasized the importance of civil and political liberties, above all free speech and freedom of religion, while communist nations stressed the right to a job, health care, and a social minimum."

In 2007 Sunstein co-authored (with fellow attorney Eric A. Posner) a 39-page University of Chicago Law School paper titled "Climate Change Justice," which held that it was "desirable" for America to pay "justice" to poorer nations by entering into a compensation agreement that would result in a financial loss for the United States. The paper refers several times to "distributive justice."

Sunstein and Posner further speculate about the possibility of achieving this redistribution by means other than direct payments:

• "It is even possible that desirable redistribution is more likely to occur through climate change policy than otherwise, or to be accomplished more effectively through climate policy than through direct foreign aid."
• "We agree that if the United States does spend a great deal on emissions reductions as part of an international agreement, and if the agreement does give particular help to disadvantaged people, considerations of distributive justice support its action, even if better redistributive mechanisms are imaginable."
• "If the United States agrees to participate in a climate change agreement on terms that are not in the nation's interest, but that help the world as a whole, there would be no reason for complaint, certainly if such participation is more helpful to poor nations than conventional foreign-aid alternatives."
• "If we care about social welfare, we should approve of a situation in which a wealthy nation is willing to engage in a degree of self-sacrifice when the world benefits more than that nation loses."

In their 2008 book Nudge: Improving Decisions About Health, Wealth, and Happiness, Sunstein and co-author Richard Thaler brainstorm about ways to increase the number of organ donations that Americans make each year. They theorize that the main reason why more people do not arrange to donate their organs posthumously is because in order to do so, they are required to actively give “explicit consent” for such procedures, which few people ever take the time to do. To remedy this, Sunstein and Thaler advocate a policy of “presumed consent” -- the opposite of explicit consent -- whereby the the government would “presume” that someone has consented to having his or her organs removed for transplantation unless that person has explicitly indicated his or her wish to prevent such an action.

Sunstein and Thaler realize, however, that such a proposal “is a hard sell politically” because “[m]ore than a few people object to the idea of ‘presuming’ anything when it comes to such a sensitive matter.” Thus the authors propose an alternate solution -- “mandated choice” -- where the government forces all people to make a decision on the matter:

“With mandated choice, renewal of your driver’s license would be accompanied by a requirement that you check a box stating your organ donation preferences. Your application would not be accepted unless you had checked one of the boxes.”

Under such a system, government “incentives and nudges” would replace “requirements and bans.”

In 2008, Sunstein said the following about why he favored the establishment of a government that could "nudge" people's behavior in certain desired directions:

• "The nanny state ... in a way is underrated, so long as there aren't mandates."
• "We [Sunstein and Thaler] think that there's a little Homer Simpson in all of us; that sometimes we have self-control problems; sometimes we're impulsive; and that in these circumstances, both private and public institutions, without coercing, can make our lives a lot better."
• "Once we know that people are human and there's some Homer Simpson in them, then there's a lot that can be done to manipulate them."

On July 4, 2008, Sunstein married his second wife, Harvard professor Samantha Power, whom he had met when they both worked as advisors to the presidential campaign of Sunstein's longtime friend and former University of Chicago Law School colleague, Barack Obama.

Also in 2008, Sunstein authored a paper proposing that the government use a variety of methods to limit or eliminate conspiracy theories critical of the U.S. government. These methods suggested that the government could:

• ban conspiracy theories outright
• impose a tax on those who advance conspiracy theories
• engage in counter-speech to "discredit conspiracy theories and theorists"
• hire private parties to engage in counter-speech
• engage in informal communication with such private parties, encouraging them to help

Added Sunstein: "Our main policy claim here is the government should engage in cognitive infiltration of the groups that produce conspiracy theories."

In 2008 Sunstein served as an advisor for Barack Obama’s presidential campaign. After Obama’s 2009 inauguration, Sunstein was appointed to head the White House Office of Information and Regulatory Affairs.

Sunstein is a contributing editor to The New Republic and The American Prospect and has frequently testified before congressional committees.