RTP's Fourth Branch Podcast

The collapse of FTX has intensified the debate about how cryptocurrencies should be regulated, including proposed federal legislation. With a string of cryptocurrency failures and tens of billions in losses for investors, increased regulation has become a hot topic. As Bloomberg summarized: “Crypto is squarely in the cross hairs of Washington” and “Oversight of digital assets is among the most pressing issues for US financial watchdogs.”Should cryptocurrency firms be regulated as banks? Should cryptocurrency assets be regulated as securities or as commodities? If so, who is the right regulator? Do we need new federal legislation? With enhanced financial and risk disclosures, should cryptocurrency firms only be subject to standard commercial law and, if they fail, normal bankruptcy proceedings? These issues will be addressed by this fourth in a continuing series of cryptocurrency webinars presented by the Federalist Society’s Financial Services and E-Commerce Practice Group.Featuring:The Honorable Cynthia Lummis, United States Senator, WyomingTodd H. Baker, Managing Principal, Broadmoor Consulting, LLCJerry Loeser, Of Counsel, Winston & Strawn LLP (Retired)Steve Lofchie, Partner, Financial Services, Fried FrankAlex J. Pollock, Senior Fellow, Mises InstituteModerator: J.C. Boggs, Partner, Government Advocacy and Public Policy, King & Spalding Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Although primarily an enforcement agency, the Federal Trade Commission (FTC) has issued a historic number of proposed rules over the past two years. From prohibiting non-compete provisions potentially impacting 30 million employment contracts or privacy and data security rules implicating personal information online, these proposed rules will affect most sectors of the U.S. economy. This panel of experts will explore how a federal agency undertakes the cost-benefit analysis for proposed rules, comparing independent agencies to those subject to OIRA review, and provide practical tips for lawyers and economists working on agency rulemaking comments.Featuring:Dr. Andrew Stivers, Associate Director, NERA Economic ConsultingPaul Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage FoundationJonathan Wolfson, Chief Legal Officer and Policy Director, Cicero InstitutePaul Metrey, Senior Vice President, Regulatory Affairs, National Automotive Dealers Association[Moderator] Svetlana Gans, Partner, Gibson, Dunn & Crutcher, LLPVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Energy consumers continue to see rising rates, but how do regulators decide the rate that consumers pay? In this episode, James Coleman and Mark Ellis explain the relationship between federal and state regulators and utility companies, the financing models behind regulated rates, and the incentives created by these models. What are the implications of state-regulated projects? How do utility companies respond, and what are the risks? What is the impact on consumers? In this episode, experts address these questions and more.Featuring:James W. Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of LawMark Ellis, Financial & Regulatory ConsultantVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 into law. This omnibus law is over 4,100 pages, and, like many omnibus bills, affects a broad range of issues.According to Dr. Joel M. Zinberg, physician and health care expert, one such issue is the practice of medicine, as a nineteen-line section relating to the authority of the Food & Drug Administration (FDA) may fundamentally change the future viability of off-label prescriptions. Dr. Zinberg joins us in this podcast to explain the Act’s provisions concerning the FDA, the possible implications on the practice of medicine, and possible solutions to the potential pitfalls posed by these new health care provisions.Featuring: Joel Zinberg, Senior Fellow, Competitive Enterprise InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Under the Biden Administration, Consumer Financial Protection Bureau Director Rohit Chopra has dramatically increased the substantive reach of the CFPB’s use of guidance documents and examination and supervision powers. This includes the articulation of a new standard of Unfair, Deceptive, or Abusive Acts or Practices (UDAAP) that includes allegedly discriminatory practices. It also has announced it intends to use “dormant” powers from Dodd-Frank that would allow it to conduct supervisory exams on nonbanks or any fintech it believes is risky. Many critics argue that many of these acts should be conducted through notice and comment rule-making processes and point to similar efforts during the Obama Administration when similar extensive use of guidance was treated as equivalent to a rulemaking for purposes of the Congressional Review Act. A major lawsuit has also challenged this assertion of authority by the CFPB. In this episode, experts discuss the specifics of the CFPB’s assertion of expansive authority in these areas, the use of supervision more generally in relation to rulemaking, and the lawsuit that has challenged these acts. Featuring: Brian Johnson, Managing Director, Banking Supervision and Regulation Group, Patomak Global Partners Bryan Schneider, Partner, Manatt, Phelps & Phillips, LLP [Moderator] Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Title VI and IX apply to all colleges and universities that accept federal funds, which, as a condition of accepting those funds, agree they will enforce all Federal Civil Rights laws. However, sometimes programs offered by such institutions seem to run afoul of Title VI and IX, and when that happens, a recourse is to file a complaint with the Office of Civil Rights. In this explainer podcast, Dr. Mark Perry, who has filed Title VI and IX complaints against hundreds of colleges and universities across the U.S., joins us to discuss that process. He brings his expertise to give a window into the procedural aspects of this system, what they are, why such complaints may be valuable, and the considerations a potential complainant might want to consider.For those who would like to learn more, independent of this podcast or RTP, Dr. Perry notes he can be reached at mark.perry@aei.org, or via direct message on Twitter at https://twitter.com/Mark_J_Perry.Featuring:Mark Perry, Professor of Economics, University of Michigan-Flint and Resident Scholar, American Enterprise InstituteVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

The EPA has rescinded The Safer Affordable Fuel Efficient Vehicles Rule Part One: One National Program rule. It has reinstated a waiver of Clean Air Act (CAA) preemption for California’s greenhouse gas standards and Zero Emission Vehicle sales mandate. These are some facets to California’s Advanced Clean Car Program. In Ohio v. EPA, now pending before the D.C. Circuit, various industry and state petitioners have challenged EPA’s reinstatement of the waiver as preempted by the CAA; and have argued that Congress has not implicitly authorized it either. Numerous amici have weighed in on this issue as well. The D.C. Circuit soon will hear oral argument in this case, which eventually might make it to the Supreme Court. Raised by some amici, one of the pertinent issues here is that the federal government is showing favoritism to California in contravention of the Constitution’s equal-sovereignty principle, which the Supreme Court has recognized in a long line of cases (most recently culminating in Shelby County v. Holder). This litigation update will feature a vital discussion from the eminent Jonathan Brightbill, who served as Acting Assistant Attorney General of the United States (leading the Justice Department’s Environment and Natural Resources Division, where he worked on the Trump Administration’s One National Standards Rule), and who currently is a partner at Winston & Strawn LLP; Robert Percival, the Robert F. Stanton Professor of Law and the Director of the Environmental Program at the University of Maryland School of Law; and Sohan Dasgupta, who served as the Deputy General Counsel of the U.S. Department of Homeland Security and who is a partner at Taft LLP. Featuring: Jonathan Brightbill, Partner, Winston & Strawn LLP Robert Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law [Moderator] Sohan Dasgupta, Partner, Taft Stettinius & Hollister LLP Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

On December 19, 2022, the Reagan-Udall Foundation for the Food and Drug Administration, an independent 501(c)(3) organization created by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety” released the second of two highly anticipated reports on its state of affairs. The first, released December 6, 2022, served as an operational evaluation of the FDA’s Human Foods program, which had struggled significantly during the course of the supply chain issues brought on during the COVID pandemic. The second December 19th, 2022 report covered “certain components of FDA’s Tobacco program,” evaluating operations there. Both were highly anticipated not just because of the serious and pertinent issues they addressed, but because questions circulated concerning how the Foundation is made up of many former FDA high officials, and how the report would rate the proceedings of the current FDA team.In this podcast Jeff Stier, a senior fellow at the Consumer Choice Center, senior fellow at the Taxpayers Protection Alliance, and a policy advisor to the Heartland Institute breaks down some of what the reports say, and what the next steps for both the FDA and Congress may be.Featuring: Jeff Stier, Senior Fellow, Consumer Choice CenterVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the third in a lecture series on the administrative state. The subject of this discussion was the major questions doctrine and how Congress may respond to the Supreme Court’s decision in West Virginia v. EPA.Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as West Virginia v. EPA at the Supreme Court, and the 5th Circuit’s decision in Jarkesy v. SEC, arguably throws into question the status quo under which administrative agencies have heretofore operated.In this final event in our co-sponsored luncheon series on the administrative state, experts investigated the impact such cases may have on Congress in terms of lawmaking delegation, and looked to forecast what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrines.Featuring:Sarah Binder, Senior Fellow, Governance Studies, Brookings InstitutionDaniel Flores, Senior Counsel, Committee on Oversight and Reform, House of RepresentativesModerator: Hon. Trevor McFadden, Judge, United States District Court, District of ColumbiaVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Federalist Society’s Regulatory Transparency Project and Capitol Hill Chapter hosted the second in a lecture series on the administrative state’s role in policymaking in modern American government.This second event of our co-sponsored series on the Administrative State focused on the role of the administrative state in policymaking. Through its various roles and capacities, the Administrative state can have great leeway to create policy that has similar effects to rules and laws created through the legislative process but comes to be via different means. Agencies can make rules, issue guidance documents that often carry significant weight, interpret statutes, and enforce their rules. All these can contribute to agencies making policies that have the force of law.Some argue that this policy-making by non-elected individuals serving in the administrative state is improper and usurps elected officials’ authority. Others contend this is a valuable and necessary part of the Administrative State’s ability to operate as authorized, and that the policy-making capacity of the Administrative State is a net benefit.Panelists David Fotouhi, a current partner at Gibson, Dunn & Crutcher LLP who spent four years serving with the EPA, and Richard Peirce, a professor of Law at George Washington University who focuses on the Administrative State, discussed the policy-making power of the Administrative State, and the practical ways in which that power can often be applied. Judge Lisa Branch moderated the discussion.Featuring: David Fotouhi, Partner, Gibson, Dunn & Crutcher LLPRichard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law SchoolModerator: Hon. Lisa Branch, Judge, United States Court of Appeals, Eleventh CircuitVisit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.*******As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.