Sally Katzen gives students a Washington insider's view of how regulations are made
Students taking a course called “How Washington Really Works” might expect to become even more jaded about D.C. politics than they had been before. But what Visiting Professor Sally Katzen teaches tends to have the opposite effect.
“I think there’s a little bit more cynicism than is warranted,” said Katzen. “And I think there’s less appreciation for the complexity of the issues that you deal with in policy.”
Katzen, currently a senior adviser at the Podesta Group, spent eight years in the Clinton administration, including five as the administrator of the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). She also served as deputy director for management at OMB, deputy assistant to the president for economic policy, and deputy director of the National Economic Council.
As head of OIRA, Katzen employed analytical tools such as cost-benefit analysis in her deliberations, overseeing the review of a staggering array of executive branch agency regulations. It isn’t always easy to convince constituents of the legitimacy of a regulation.
“There’s a strong libertarian bent to the American people,” said Katzen. “They don’t want a national nanny. On the other hand, you’re on the motorcycle, you hit a tree, you’re not wearing a helmet, you’re in a coma, and the taxpayers are going to spend money keeping you alive on a tube for the next 40 years. I think some people have more of a knee-jerk reaction. I want to introduce them to the legitimacy of more complicated considerations, and real trade-offs that are at play.”
Katzen was the first female partner at Wilmer, Cutler & Pickering, where she practiced administrative and legislative law for more than 25 years. She subsequently taught at the law schools of Georgetown University, the University of Michigan, George Mason University, the University of Pennsylvania, and George Washington University, as well as at Smith College and Johns Hopkins University.
Katzen’s NYU Law course is the product of years of lessons learned in law, government, and teaching. “What I try to do in my course is to take administrative law, which can be a tad boring, and hopefully bring it to life by talking about what actually happens in the course of rulemaking,” said Katzen. “I focus on process.... The processes are easily transferrable from one agency to another, and if you understand the processes and the broader context, you will have a deeper appreciation of how to influence the outcome.”
In the class, Katzen covers the roles of all the major players in the administrative state, looking at the complex interplay of Congress, agencies, the president, the courts, various stakeholders, and special interests. “In the rulemaking process you’ve got several adversaries, but they’re not all in an adversarial posture,” she said. “Some of them are actually allies and colleagues. How do you assemble supporters? How do you think through inoculating yourself from political influences? It’s a merits-based process, but unlike in a court, there are very few boundaries and ex parte rules.”
Realizing that some aspects of rulemaking might seem mundane, Katzen sometimes uses role-playing to keep the class engaged. In a session about the strategies entailed in the publication of proposed new rules and regulations by agencies in the Federal Register to allow for public comment, Katzen appointed an unsuspecting student as the general counsel of an agency, and another as the secretary of health and human services. She then asked the newly minted decision makers about the best approach to the notice-and-comment process when the secretary wants a rule implemented immediately. How do you balance the expediency of claiming an exception to the notice-and-comment requirement against the possibility of a future challenge in the courts? What are the advantages and drawbacks of publishing a vague description of the rule as opposed to a highly specific one?
Such exercises prompt students to delve deeper. “I wrote comments when I was in my old job at the Environmental Defense Fund, but I wasn’t at a senior enough level to think about the more strategic advocacy tools beyond just writing the comment,” said Martha Roberts ’12. “The way that she presents it, there’s obviously so much more to the process than just the drafting and researching. You get a more complete picture of who affects the regulatory process and the ways you can influence it—through comments or meetings, through different jobs. She’s also really good at challenging assumptions that you have about how things should work. She makes people advocate a side of an issue that they might not normally advocate, and then presents surprising examples that upend your initial preconceptions.”
In a session on the role of Congress, Katzen divided the class into members of both major parties preparing for a hearing. Aaron Jacobs-Smith ’11 found the experience highly instructive.
“I didn’t really think through what it means when a Congressperson calls you in to testify before their committee,” he said. “What kind of burden that would create for the head of an agency, what kind of pressures can be exerted just through the threat of being called to testify. Or less obviously, if they send you a letter with a list of questions to answer—the burden that can be, and the way in which you can wield influence through tactical moves that I wasn’t really aware of.”
Students have a healthy appreciation for the real-world experience Katzen brings to the table in formulating such practical exercises—for example, having to make crucial decisions as head of OIRA during the infamous government shutdown of 1995.
“Sally Katzen is about as dynamic and energetic as they come,” said Margo Hoppin ’12. “Part of my reason for taking the class was actually just hearing her speak last year. I thought I’d simply enjoy sitting in a room listening to her. But also, she knows the relevant doctrine backwards and forwards in terms of what agencies are required to do when they pass a regulation, and what the judicial standard is for reviewing a regulation if someone challenges it. And she quite simply was there when many recent, very relevant things happened. She’ll give both anecdotes and opinions about them.”
More than anything else, Hoppin appreciates the example Katzen has set in her accomplished Washington career: “It’s really, really useful to get a non-cynical sense of real politics and real policymaking. It’s also comforting to meet a woman who speaks English who ran OIRA. I’m not particularly quantitative. I would love to do something in the regulatory world, but it wasn’t obvious to me that I didn’t need an advanced degree in statistics before being able to do that. She confirms that listening and being smart and being practical is enough to be useful in that context.”
Posted on April 1, 2011