RTP's Fourth Branch Podcast

EPA Administrator Scott Pruitt announced that his agency would no longer allow the use of “secret science” in developing federal regulations. Specifically, the agency will only use scientific studies to develop regulations when the data and methodology for those studies are made accessible to the public. Is there really a secret science or transparency problem that even needs to be addressed? If so, have there been attempts historically to correct the problem? What are the implications of excluding such studies? This presentation will provide background on this effort and discuss how transparency in government can be strengthened and better inform policymaking.Featuring:- Daren Bakst, Senior Research Fellow in Agriculture Policy, Institute for Economic Freedom, The Heritage Foundation- Richard B. Belzer Ph.D., Independent Consultant in Regulation, Risk, Economics & Information QualityVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

In Virginia, it’s perfectly legal to have a happy hour; it’s just illegal to talk about it. The state has several advertising restrictions that opponents claim are outdated and prevent businesses from communicating entirely truthful information about their legal happy hour practices--including the price of any drink. These laws affect entrepreneurs like Chef Geoff Tracy, who owns three restaurants in the DC metro area.In this live podcast, Chef Geoff tells his story of how these restrictions have driven up the cost of doing business, how they have forced him to alter his successful business model, and why he ultimately decided to sue Virginia over them. Chef Geoff’s attorney, Anastasia Boden of the Pacific Legal Foundation (PLF), will discuss the lawsuit, explaining why she believes economic regulations are a growing threat to businesses and share what PLF is doing to fight for economic liberty and free speech in the courts.Featuring:- Anastasia P. Boden, Attorney, Economic Liberty Project, Pacific Legal Foundation- Geoffrey Tracy, Founder, Chef Geoff'sVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Self-driving vehicles may be on American roads sooner than many think. As a result, the Department of Transportation and National Highway Traffic Safety Administration have been increasingly focused on examining the potential regulatory barriers calling for comments on various federal motor vehicle safety standards (FMVSS) that need to be changed and updates to the existing policy guidance on self-driving vehicles. Accommodating the deployment of self-driving vehicles will necessitate addressing outdated FMVSS, current definitions of "driver" or "operator," cybersecurity and privacy concerns, and a regulatory landscape where various authorities are divided between states and the federal government.Featuring:- Ryan Hagemann, Director of Technology Policy, Niskanen Center- Jamie Boone, Senior Director, Government Affairs, Consumer Technology AssociationVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Invoking the Tobacco Control Act, the FDA issued an omnibus regulation of cigars, pipe tobacco, and vaping products in 2016. That Rule required all of these products to go through an FDA review process similar to that for prescription drugs and medical devices and to bear large warnings covering 30 percent of two panels of each package and 20 percent of all advertisements—even though some vaping products contain no tobacco or nicotine. The Rule also prohibits truthful statements about the products, including whether they contain tobacco or not, without costly FDA pre-approval, and the speakers bear the burden to prove the net value of their speech to consumers as a whole, whatever that means. Although the Trump Administration delayed some aspects of the Rule, current and delayed mandates threaten the vitality of major industry sectors, including the large health warnings and prior approval of truthful speech.In addition to the usual regulatory questions, our speakers raise fundamental constitutional challenges to the Rule. Mr. Gaziano and Pacific Legal Foundation are representing nine vaping retailers and harm reduction advocates who filed three lawsuits arguing that the Rule is invalid because it was issued by an FDA employee who is not constitutionally authorized to issue regulations pursuant to the Appointments Clause. Those suits raise key questions of democratic accountability and Executive Power: Who has the authority to impose a massive web of regulations on an entire industry? Mr. Edney represents several cigar and pipe tobacco trade associations and other individual cigar manufacturers and retailers challenging the Rule. Even with the postponement of some compliance deadlines, the Appointments Clause and First Amendment challenges in both sets of cases are ripe. If the FDA’s arguments prevail, the government could require large warnings blanketing any package or advertisements for virtually any product and ban truthful statements about those products without bureaucratic pre-approval.Featuring:- Todd F. Gaziano, Director, Center for the Separation of Powers, Pacific Legal Foundation- Michael J. Edney, Chairman and Partner, Norton Rose Fulbright's White Collar Criminal Defense Practice GroupVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Did you know that you have a say in the U.S. government’s regulatory process?The Administrative Procedure Act (APA) requires that most regulations promulgated by administrative agencies go through a process called “notice and comment rulemaking.” Stripped to its basics, that means that the agency must give notice of a proposed rulemaking and then give the public a chance to comment. The law allows ordinary citizens, as much as sophisticated interest groups, opportunities to participate in, and have opinions heard on, the development of regulations. In a recent article (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3006157), Professor Donald Kochan calls this the underappreciated “commenting power.” The duty for agencies to consider and respond to significant comments is what makes commenting so powerful. In addition to Professor Kochan's article, Argive — a Silicon Valley non-profit that seeks to make regulatory processes more accountable and accessible to all — recently issued a report (https://static1.squarespace.com/static/586bee97c534a5731df8f6c4/t/5942c4c0be6594acc08fa2a5/1497547972474/Argive+Improving+Regulations.gov-2.pdf) on what they perceived as deficiencies in and suggested solutions for the actual commenting system.In this live podcast, Professor Kochan will explain the commenting process, the scope of agencies duties to respond to comments, and why it is important to comment whether you support or oppose a rule. The podcast will also discuss some recent and older examples of cases where agency’s failure to take comments seriously has invalidated or jeopardized rulemaking efforts. Maleka Momand, co-author of the Argive report and former President of Argive, will cover the points raised and solutions suggested in the report. Both speakers may also comment on a new Administrative Conference of the U.S. project studying public engagement in rulemaking (https://www.acus.gov/research-projects/public-engagement-rulemaking).Featuring:- Donald J. Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University Dale E. Fowler School of Law- Maleka Momand, Co-Founder and CEO, Esper, Former-President, ArgiveVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

In 2017, the U.S. experienced a dramatic shift in regulatory policy at the federal level. This shift is attributable to a new presidential administration that has made regulatory reform a priority. This priority is evidenced by numerous regulatory initiatives including Executive Order 13771 that directs agencies, among other things, to repeal two regulations for every new regulation promulgated. The Administration recently reported that it had far exceeded this goal by instead, repealing twenty-two regulations for every new regulation created. However, debate remains over how the new administration’s regulatory efforts, in its totality, should be scored thus far. We are pleased to have OIRA Administrator Neomi Rao as our Foruth Branch podcast guest to share her perspective on that question.Featuring:- Neomi Rao, Administrator, OIRAVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

On Wednesday, January 31, the full United States Court of Appeals for the District of Columbia Circuit voted 7-3 to uphold the Consumer Financial Protection Bureau (CFPB) against a separation-of-powers challenge to its uniquely independent structure. The court’s majority opinion and the various concurring and dissenting opinions total 250 pages, and all were written in the shadow of the Supreme Court, which could soon be called on to clarify the constitutional law of independent agencies. Ambassador C. Boyden Gray and Boyden Gray & Associates Partner Adam Gustafson will deliver an update on the case and discuss whether it is likely to reach the Supreme Court of the United States.Featuring:- Ambassador C. Boyden Gray, Founding Partner, Boyden Gray & Associates- Adam Gustafson, Partner, Boyden Gray & AssociatesVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Today's money transmitters are Internet businesses. The money is digital, it might even be cryptocurrency. The business can have customers in every state and nation from day one. The services are diverse and innovative from instant payments between a ridesharing driver and a passenger to custody and exchange of dollars for bitcoin. Western Union's new contemporaries aren't just Paypal and Venmo; today they are also Google, Amazon and Coinbase. And yet, money transmitters must still go regulator to regulator, explain their business, and become licensed in 53 states and territories under statutes that were originally drafted to keep check-cashers honest. Some argue that a federal alternative to that regulatory structure needs to be developed if the US is to stay competitive in financial technologies.Peter Van Valkenburgh will discuss these issues and Coin Center's new discussion paper that explores how this federal structure could be developed.Featuring:- Peter Van Valkenburgh, Research Director, Coin CenterVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

For many years, concerns have been raised that the development and use of guidance documents by agencies should be better managed and more transparent and accountable. There also has been growing concern that, in some cases, guidance documents are being used in lieu of regulations to practically bind regulated parties, without observing the procedural safeguards required of regulations. Paul Noe will discuss how, ten years ago, these concerns had led the White House Office of Management and Budget to issue a government-wide “Bulletin for Agency Good Guidance Practices” during the Administration of President George W. Bush. He also will discuss past shortcomings in the implementation of the OMB Bulletin and offer suggestions on how more could be done to promote good guidance practices across the government. In addition, Stephen Cox will discuss how these concerns are being addressed by the current Department of Justice. For example, in November, the Attorney General issued a department-wide memorandum entitled, “Prohibition on Improper Guidance Documents,” and, in December, announced the rescission of twenty-five guidance documents that were unnecessary, inconsistent with existing law, or otherwise improper.Featuring:- Paul Noe, Vice President, Public Policy, American Forest & Paper Association- Stephen Cox, Deputy Associate Attorney General, U.S. Department of JusticeVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Federal regulations have accumulated over many decades, so much that it would require over three years to read through them all if you started today. The buildup of regulations over time leads to duplicative, obsolete, conflicting, and even contradictory rules and the multiplicity of regulatory constraints complicates and distorts the decision-making processes of firms operating in the economy. Firms respond to both individual regulations and regulatory accumulation by altering their plans for research and development, for expansion, and for updating equipment and processes. Because of the important role innovation and productivity growth play in an economy, these distortions may have consequences for the growth of the economy in the long run. McLaughlin will discuss his recent study (with Duke University professors Bentley Coffey and Pietro Peretto) that examines regulation’s effect on firms’ investment choices and, consequentially, on economic growth. Using a 22-industry dataset that covers 1977 through 2012, the study finds that regulation—by distorting the investment choices that lead to innovation—has created a considerable drag on the economy, amounting to an average reduction in the annual growth rate of the US gross domestic product (GDP) of 0.8 percent. KEY FINDINGSEconomic growth in the United States has, on average, been slowed by 0.8 percent per year since 1980 owing to the cumulative effects of regulation:- If regulation had been held constant at levels observed in 1980, the US economy would have been about 25 percent larger than it actually was as of 2012.- This means that in 2012, the economy was $4 trillion smaller than it would have been in the absence of regulatory growth since 1980.- This amounts to a loss of approximately $13,000 per capita, a significant amount of money for most American workers.Featuring:- Patrick McLaughlin, Director, Program for Economic Research on Regulation, Senior Research Fellow, Mercatus CenterVisit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.