FCC Chairman Ajit Pai to Address National Policy Conference on April 27

The RNLA is pleased to announce that Federal Communications Commission Chairman Ajit Pai will speak at the National Policy Conference next Friday.

Chairman Pai joined the FCC as a Commissioner in 2012 and was designated as Chairman by President Trump in January 2017.  He has been a leader in the effort to restore the rule of law to federal communications regulation.

Last November, Chairman Pai gave remarks explaining the "Restoring Internet Freedom" order, which undid the FCC's unprecedented overreach in 2015 that created the so-called "net neutrality" policy:

First: what will the plan do? When you cut through the legal terms and technical jargon, it’s very simple. The plan to restore Internet freedom will bring back the same legal framework that was governing the Internet three years ago today and that has governed the Internet for most of its existence. . . . Until 2015, the FCC treated high-speed Internet access as a lightly-regulated “information service” under Title I of the Communications Act. A few years ago, the Obama Administration instructed the FCC to change course. And it did, on a party-line vote in 2015; it classified Internet access as a heavily-regulated “telecommunications service” under Title II of the Communications Act. If the plan is adopted on December 14, we’ll simply reverse the FCC’s 2015 decision and go back to the pre-2015 Title I framework. . . . 

Much of the problem stems from the vague Internet conduct standard that the Commission adopted in 2015—a standard that I’m proposing to repeal. Under this standard, the FCC didn’t say specifically what conduct was prohibited. Instead, it gave itself a roving mandate to second-guess new service offerings, new features, and new business models. Understandably, businesses asked for clarity on how this standard would be applied. My predecessor’s answer, and I quote: “We don’t know, we’ll have to see where things go.” That’s the very definition of regulatory uncertainty. . . . 

Many critics don’t seem to understand that we are moving from heavy-handed regulation to lighttouch regulation, not a completely hands-off approach. We aren’t giving anybody a free pass. We are simply shifting from one-size-fits-all pre-emptive regulation to targeted enforcement based on actual market failure or anticompetitive conduct. . . . By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer. . . . 

This reminds me of another point, one that’s been brought home to me the past few days. This debate needs, our culture needs, a more informed discussion about public policy. We need quality information, not hysteria, because hysteria takes us to unpleasant, if not dangerous places. We can disagree on policy. But we shouldn’t demonize, especially when all of us share the same goal of a free and open Internet. . . . So when you get past the wild accusations, fearmongering, and hysteria, here’s the boring bottom line: the plan to restore Internet freedom would return us to the light touch, market-based approach under which the Internet thrived.

We are grateful to Chairman Pai for his leadership, his commitment to the rule of law, and his steadfast support for freedom from regulatory overreach in the face of harsh and violent criticism.  We are honored for to address the RNLA next Friday, and we invite you to join us.   

President Trump Had Considerable Success Restoring The Rule of Law In 2017

RNLA Co-Chair Joanne Young wrote today in The Daily Caller about how successful President Trump has been restoring the rule of law in 2017.  It began with Attorney General Jeff Sessions and the Department of Justice:

At every turn, Sessions has had to fight against entrenched, liberal career employees and Obama holdovers. But Sessions has remained dedicated. He has increased focus on vigorous and equal enforcement of the laws to reduce violent crime, ended third-party settlement practices that directed taxpayer dollars to liberal outside groups, and defended the rule of law in litigation, such as supporting voter ID laws, free speech, and religious liberty. The process of restoring the rule of law to the Department of Justice will take years, but President Trump and Attorney General Sessions have had an effective first year.

And continued with Supreme Court Justice Neil Gorsuch and other exemplary new federal judges:

At just 50 years old, Justice Gorsuch will serve on the nation’s highest court for many years to come. In his 10 years on the Tenth Circuit, he had demonstrated a commitment to adhering to the text of the Constitution, statutes, and regulations, even when it led to unfortunate results on the facts. He had shown his dedication to the principle that it is for the legislature to decide policy and enact it in law and for judges to apply that law, without inserting their own policy preferences. While his commitment to the rule of law and textualism has earned him the scorn of liberals, it protects the right of the American people to be ruled by the law written by their elected representatives, not by the whim of unelected judges.

President Trump has also started rolling back overreaching regulations and unlawful policies across the Executive Branch:

On taking office, President Trump immediately began rolling back the regulatory overreach that was the hallmark of the Obama years. On January 30, he directed that when an agency promulgated a new regulation in 2017, it had to identify two regulations to repeal. He has periodically directed agencies to review the permissibility of particular rules or interpretations that have impermissibly expanded the scope of certain laws and regulations, such as when he directed the Environmental Protection Agency’s Administrator to review the “Waters of the United States” rule on February 28. 

As the agency personnel nominated by President Trump have taken office, they have worked to review and undo the harmful and expansive interpretations of the Obama years in their agencies. For example, in October, EPA Administrator Scott Pruitt ended the “sue and settle” practices whereby radically liberal environmental organizations controlled how the EPA interpreted its own rules through litigation, often being paid with taxpayer money for their efforts. . . . Or consider Federal Communications Commission Chairman Ajit Pai, [whose] proposal to undo the FCC’s own regulatory overreach of the Obama years, “net neutrality,” was approved last Thursday, despite personal, racially tainted attacks against Pai and his family by outraged liberals. . . . Net neutrality was imposed through an FCC power grab whereby, after 20 years of bipartisan agreement over the Internet, the FCC unilaterally reinterpreted its own governing laws without congressional authorization, despite the previous FCC Chairman admitting that he did not know how the new rule would be interpreted.

Ms. Young concludes by pointing to the very real world consequence of decreased and clearer regulations: a booming economy.  Likewise, judges and a Department of Justice that respect the rule of law protect the rights of all people, ensuring a brighter future for all Americans.

Trump Must Continue Undoing Obama’s Massive Federal Power Grabs

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how leaders in the Trump Administration are starting to undo the regulatory power grabs of the Obama Administration and being attacked for it by liberals:

For the eight years of the Obama Administration, liberals worked through extra-legal means to achieve the policy goals they desired that did not have enough popular support to be passed by the legislature. Sometimes this took the form of convincing judges to ignore the text of statutes and regulations and decide cases on the basis of policy, over-ruling the will of the people expressed through their representatives. Other times, it took the form of agencies ignoring the rule of law, seizing power, and enacting new policies without regard to their statutory limits and without proper procedures such as rulemaking following notice and comment.

He began with the example of FCC Chairman Ajit Pai's proposal to undo the "net neutrality" rules enacted in 2015:

The “telecommunications service” classification was designed for monopoly telephone services and gives the FCC extremely broad authority to regulate. Extending this regulatory authority to Internet service is unquestionably an extension of the FCC’s authority. It was an extension that was authorized not by Congress but by the FCC itself. 

Even worse, this power grab was unclear. . . . Chairman Pai’s proposed plan would return Internet service regulation to the previous regulatory framework—which had been upheld by the Supreme Court—and restore the FCC’s authority to the level granted by Congress. He publicly released it, unlike in 2015 when the details were released only after the FCC had already adopted them.

Mr. Thielen also points to the examples of the Consumer Financial Protection Bureau (CFPB) deputy director's desperate bid to maintain control of the CFPB against President Trump's newly appointed acting director, who has announced a regulatory freeze, and EPA Administrator Scott Pruitt ending the "sue and settle" practices by which activist outside groups controlled the interpretation and implementation of the EPA's statutes and regulations.  Mr. Thielen concludes by noting:

These are just a few examples of the immense amount of work remaining to be done in the Executive Branch to restore the rule of law. This effort is the opposite of a power grab. It is giving power back to the people through their elected representatives and taking power away from unelected activists inside and outside of government.

We thank these courageous leaders and President Trump for fighting to restore the rule of law to the federal government against the attacks of liberals and obstruction of Obama-holdover and career staff members in federal agencies.

Don McGahn Summarizes Trump Administration's Work on Judicial Nominations and Regulatory Reform

This evening, White House Counsel and 2017 Ed Meese Award winner Don McGahn addressed the Federalist Society's National Lawyers Convention.  RNLA live-tweeted the speech, and all the tweets can be viewed here.  Mr. McGahn focused on the rule of law, due process, the administrative state, and the role of judges.  Here are some highlights:

WHC Don McGahn: Very fortunate to serve a President committed to nominating and confirming judges who are committed originalists and textualists. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: The greatest threat to the rule of law in our modern society is the ever expanding administrative state and the most effective bulwark against that is a strong judiciary. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Regulatory reform and judicial selection are deeply connected and are the two greatest issues this administration will address. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: No way for regular people in small businesses to keep up with the regulatory and sub-regulatory actions pouring out of the administrative state's spigot. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Modern regulatory system makes a mockery of the finely tuned system of checks and balances in the Constitution. When we tinker with the design, we tinker with our freedom. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: This administration's mandate on judicial selection is clear: choose judges in the mold of Justice Scalia, Justice Thomas, and now Justice Gorsuch. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Interpretive principles articulated by Justice Scalia are the very bedrock of due process and the rule of law. Justice Thomas' opinions make clear these are missing in our administrative state. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

WHC Don McGahn: Chairman Grassley and his team have done an outstanding job moving nominees through the Judiciary Committee. Majority Leader McConnell created this opportunity through his courage. #FedSoc2017

— RNLA (@TheRepLawyer) November 17, 2017

The entire speech can be viewed here.  We are deeply indebted to Mr. McGahn and his team in the White House Counsel's office for their vital work helping President Trump select excellent judicial nominees and to the Trump Administration for its efforts to roll back the regulatory overreach of the Obama administration and make the federal government more responsive to the people.

ICYMI: Administrator Pruitt Takes Another Step to Restore Rule of Law at EPA

Last Monday, Environmental Protection Agency (EPA) Administrator Scott Pruitt ended the "sue and settle" practices by which environmental activist organizations controlled a portion of the regulatory process at the EPA during the Obama Administration:

“The days of regulation through litigation are over,” said EPA Administrator Scott Pruitt.  “We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”

The EPA explained how these "sue and settle" practices worked:

Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe.  EPA gets sued by an outside party that is asking the court to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute.  

These practices bypassed the required processes for regulatory changes, resulting in regulatory overreach without the required input from the public and regulated community that is required by law: 

More specifically, EPA either commits to taking an action that is not a mandatory requirement under its governing statutes or agrees to a specific, unreasonable timeline to act.  Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner. 

“Sue and settle” cases establish Agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars.

Administrator Pruitt laid out eight specific practices that will now be used by the EPA to "increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree."  As legal scholars Hans von Spakovsky and Rob Gordon point out, these are the types of changes are needed across the Executive Branch to undo the regulatory overreach that was pervasive under President Obama:

Congress could, and should, make such improvements permanent. These types of changes are needed not just at the EPA, but at every federal agency — including the Fish and Wildlife Service — to prevent the abuse of power perfected by the Obama administration.

We thank Administrator Pruitt for taking this vital step towards restoring the rule of law and reversing eight years of regulatory overreach.

FEC Democrats Continue to Ignore the First Amendment

Three Democrat Commissioners are continuing their relentless effort to regulate and impede free speech on the Internet.  Despite the existence of a clear set of regulations adopted unanimously by the Commission in 2006, the three Democrat Commissioners have voted as a bloc twice in the past weeks to countermand the clear regulations.  This is further proof that Democrat Commissioners enforce only the laws they like on any given day, depending on the regulatory outcome they desire, and with respect to the respondents they prefer (or don't prefer).  

In the first vote, three Democrat Commissioners ignored a clear law that exempts Internet communications from regulation as public communications and in-kind contributions.  In 2006, the Commission decided, as a matter of policy, to let citizens speak freely on the Internet without worrying about the federal government treating their low-cost communications as in-kind contributions to candidates.  The law couldn't be clearer on this point.  But last month Commissioner-for-Life Ellen Weintraub, Commissioner I-Don't-Apply-The-First-Amendment Ann Ravel, and "Independent" Commissioner Steven Walther voted to countermand clear law.  They voted to treat a webcast as an in-kind contribution to a candidate.  The relevant Statement of three Republican Commissioners can be found here.  

Fox News Targeted by FEC Democrats for Allowing Candidates a Forum to Speak on Issues

Democrats in federal agencies continue the assault on the rights of U.S. citizens by forcing partisan policy through executive actions and regulatory overreach in place of actual legislation or the rule of law. The separation of powers has never been more crucial in our history than it is right now because of the recent regulation trends. As a citizen, regardless of your party affiliation, you should be paying extremely close attention to the Obama administration's continued attempts to circumnavigate and regulate the greatest of all of our freedoms: the freedom of speech.

A complaint was filed on August 3, 2015, and since that time there appears to be a little problem between the FEC Democrats and Fox News.

Finally making good on long-harbored anger at conservative media, Democrats on the Federal Election Commission voted in secret to punish Fox News' sponsorship of a Republican presidential debate, using an obscure law to charge the network with helping those on stage.

It is the first time in history that members of the FEC voted to punish a media outlet's debate sponsorship, and it follows several years of Democratic threats against conservative media and websites like the Drudge Report . . .

Thankfully the Republicans disagreed and caused a 3-3 tie, resulting in no fines being levied. Still, it gives reason for pause. Why is encouraging more speech and sharing more information about our candidates a bad thing, on either side? Who truly believes that the government should control press room decisions when there are specifically express exceptions for the press? Most are left scratching their heads attempting to understand what it is the Democrats were hoping to accomplish other than silencing conservative speech, and that is the main point. Republican FEC Commissioner Lee Goodman spoke specifically to that fact in a statement.

Astonishingly, three FEC commissioners (Weintraub, Ravel, Walther) concluded that Fox News violated the Federal Election Campaign Act by making a prohibited corporate contribution to the 7 candidates invited to the debate. That is, by expanding the debate format to a broader group of candidates, Fox News violated the law . . .

Three FEC commissioners (Lee Goodman, Matthew Petersen, Caroline Hunter) blocked this regulatory overreach into newsroom editorial judgments. Commissioners Petersen and Hunter and I voted to free Fox News' editorial judgments from the FEC's regulatory jurisdiction under the Free Press Clause of the Constitution and the Press Exemption in the Federal Election Campaign Act. Congress included in the Act an explicit exemption for the press and we respect Congress' decision.

The Commissioners who blocked the left-leaning fine released a fairly straightforward statement of reasons.

The attempts by the left to silence speech are well documented and continue to proliferate agency by agency. At some point, if all remains constant, the dam will break either through legislation or regulatory overreach. Our rights are being eroded and history shows us that it starts with political speech and ends with complete censorship. Before you know it, the government will be telling us what we can and cannot say about our leaders, levying fines for posting YouTube® videos expressing our thoughts/opinions or sharing our religious beliefs with others on Facebook®. The solution is simple. If you do not agree with a point of view, turn it off, or better yet, simply do not watch it. Political correctness is slowly crippling what is best about our country: the right to disagree and debate varying points of view. Without that right, we cease to be truly free.