tv Public Affairs Events CSPAN April 27, 2018 1:31pm-2:04pm EDT
we will show you remarks from earlier in the conference beginning with mr. costa. >> thank you very much. i will tell you as the chairman, one of the good things is i kind of get to pick who i introduce. our next speaker i have a tremendous affinity for for the following reason. he spent two terms in the civil rights doe division at the department of justice and when i arrived after eight years of the prior administration sworn in day one and the president made it very clear we need to be sworn in on inauguration day, i went up there and that was it. we were looking around and suddenly people popped up within the civil rights division. i think they been keeping their head down for many, many
years. to be perfectly honest i think the next speaker is the one who brought them to the department of justice. we have the opportunity to introduce alex acosta. he's the son of cuban refugees , a native of miami, first-generation college grad and he earned his undergrad from harvard university. following law school he served as a law clerk for justice alito who was on the court of appeals for the third circuit and has clearly gone on to larger and better things. you also taught at the george mason university school of law. prior to his first position he served as the first tour of duty at the department of justice. he then was nominated and confirmed to the national
labor relations board where he participated or authored more than 125 opinions. in 2003 he returned to the department of justice as the senate confirmed assistant attorney general for civil rights where he served for number of years, and then moved on continuing and d.o.j. for the southern district of florida. president donald trump nominated alexander acosta to be the 27th united states. [inaudible] the honorable alex acosta. [applause] >> thank you. good morning. thank you for the introduction. it's a pleasure to be here with you. when i was invited, i gladly took time away from my official duties to join you because i think what you do is very important and it
matters. today i want to talk about the topic that is, no topic is more important than the rule of law. as i was thinking about what to say, my first reaction is this is a very broad topic and one that i've addressed previously in so many different context. i've talked at length about celebratory guidance and the prior administration, this is one big area of difference that i think is over looked by many but very important. they use a break tory guidance to change substantive rules. that's just wrong because it circumvents rulemaking, it circumvents the law and that is not what the rule of law is about. those of us in government have a responsibility to exercise strength. that's an area of debate. does one use the same approach
to get to a particular and or does one say the process matters, the means matter, and my response is the process does matter and the means do matter and that we should not use sub regulatory guidance in the same way. that stark contrast between, let me just say there's stark contrast between celebratory guidance interpretive guidance that changes law and other things that we have done such as bringing back opinion writers. opinions where we say we are going to provide the community with information on how we will constrain our judgments on how we will actually enforce the law to a particular set of facts is fundamentally different than using sub regulatory guidance to change the law. what it is a change in law when it's applied back to existing law and the two are
fundamentally different. today however, i want to speak about a slightly related but equally important topic and that's excessive regulation. president trump has committed, and rightly so, to rollback unnecessary regulation that eliminates jobs and inhibits job creation or that imposes costs that exceed their benefit. the american workers and families deserve good, safe jobs and unnecessarily written regulations our impediment to job creation. they're just a disturbance to american workers all across our nation. that's not to say that all regulations must or should be eliminated, common sense regulations, particularly those that address health and safety have an important place. there is, however far too much relation. that is just something we need to take a step back and admit and do something about.
regulations often serve to protect special interest of the competition. this is a tough one that we need to talk more about. sometimes, businesses will say the relation is okay but we are not here to do what the businesses want. sometimes large businesses will say regulations okay because it keeps the little business out of the market. that is not good. that is not pro- market. we need to recognize that sometimes regulations serve special interests by shielding them from competition. regulations are often incredibly expensive. they create cost at every step of the regulatory cycle. that is something that is particularly difficult for lawyers because lawyers are a large part of that cost. writing and enforcing regulation costs taxpayers billions and billions, if not trillions of dollars.
related parties must hire lawyers to submit comments, during the rulemaking process to interpret the regulations one state issued and then advise and compliance of those regulations and then defend and defend against attractive and expensive litigation concerning those regulations. so, as attorneys, it's sometimes difficult but also important for our profession to stand up and say, even though we stand to gain from it, this is wrong. by restricting the range of actions related parties may tak take, regulations can force businesses and individuals alike to forgo new ventures and innovation, reduce competitiveness, especially in the global marketplace. we like to think that were not as heavily regulated as other nations, but that's not true. we are and in some cases more related. all these costs can damage economic growth and their funds that employees could
otherwise used to offer more workplace education or increase wages. these cost can be staggering. in fiscal 2016, federal agents issued over 80 major rules. now major rules are defined as those that have an annual effect on the economy of 100 million or more. so, in one year, over 80 rules came out that have an economic impact of 100 million or more. just a quick math. that is sort of, a hundred million or more, a lot more of them are more than hundred million. that's just in one year end only for a subset of all regulations from major rules. it's hard to estimate the number of good family sustaining jobs that those regulations have eliminated. some have tried. one study estimated that regulatory compliance in economic impacts of federal
rules cost the economy $1.8 trillion. that's a lot of money. now, let me be clear, we are aware that regulation is expensive and it's not a reason to resend it. sometimes they carry hefty price tags that are necessary. use the examples in some of the mining regulations that require costs we compliance and costly equipment but are needed to protect hard-working americans and miners who work hundreds of feet below ground. the problem occurs when those in power do not apply reasonableness, do not apply a reasonable regulatory standard and that the economic cost have a disproportionately negative effect as a result. so rolling back regulations that impose unjust costs is somethin something, is one key to regulation. costliness is certainly the
most common rationale but today i want to talk about a second rationale that is talked about much less. one that i think is as, if not more important. that is deregulation to preserve liberty. [applause] >> thank you. the word liberty appears in the declaration of independence and the constitution in the pledge of allegiance, but here's a question for all the lawyers in this room. how many times have you seen the word liberty appear in the federal register? policymakers focus on economic costs and benefits, the rules impact liberty and i have rarely, if ever seen this done. this is understandable because it's so much easier to analyze economic cost and benefits than to analyze the impact on liberty.
economic costs and benefits are suitable for quantitative analysis. costs and benefits on the basis of technical a analysis of people on the left and the right can understand and though they may disagree on how it's done, the arguments we channeled to the validity of the numbers or the definition of arguments or the assumption or the scope of cost and benefits, resending regulations promote liberty and it requires a qualitative analysis. it requires value judgment. it requires that we ask in the name of liberty, what are we giving up? it requires that we look at the nature of liberty, the role of government and, it asks that we evaluate what we are giving up in liberty in light of other values, equality, safety, accountability, prosperity. how the heck do we do that? our modern society, more and
more, drexler's discussions and we tend to shun discussion of values on the assumption that it's all relative, that it's all a matter of personal opinion, that there are no fundamental truths, but there are. and so, as a result, we tend not to talk about this and we certainly don't you talked about in the context of deregulation, and i think that's a problem. liberty is part of what makes america different. it's exceptional. if liberty is sufficient to form the foundation of our nation than it should be sufficient to form the basis of changing or rescinding regulation. [applause]
if we go back to our founding document, back to first principles, we see that our founders strongly believed in us. the declaration of independence could be read this way. it has started america's intent to regulate the limitations that are hinged on making kinds of inhalable rights of life, liberty and the pursuit of happiness. what follows those words if you read it, is a long list of grievances that justify the revolution. certainly these grievances complain of economic regulation regulations. what are they doing to regulate our economic prosperity. how are they now treating our regulation, but they also indict british relation of interference with the liberty of americans, the ability of both individuals and the colonies as a whole to govern themselves.
it is that that is at the heart of our american experiment. citizens sit on juries, voters elect representatives to washington so by the same token, americans should be trusted to exercise some individual choice and at a practical level it seems that washington should regulate only when necessary and that limiting the scope of government space for people to make these judgments for themselves, and so the key is this, when we focus on monetary costs, we implicitly assert that we are solely and economic bein being, and that would be a sad state of affairs because we are so much more. freedom of expression, freedom to worship, safety from arbitrary government actions where they can choose their own leaders to make decisions on the way we live our lives, that is what makes us the envy of the world. so i would like to offer a few examples of how some of this
works in practice. one of the clearest examples is a regulation that was enacted by my predecessor called the persuader rule. the persuader rule, i know some folks in the room know it , issued last year, it required individuals to expose if they provided legal advice to employers in a union organized election. the effect of the rule was to discourage employees from consulting with counsel, as everyone in this room knows freedom to consult counsel of choice has been sacrosanct in the american tradition, and for good reason. even the american bar association came out in opposition to this rule. they did so based on the concern that it improperly infringed on client privilege yet the role was published. we have now published a new rule to rescind that rule.
here's the thing, the issue there is not the cost of compliance, the cost of the paperwork. the issue there is one of principle, do we believe that attorney-client privilege should be sacrosanct or not. if we do, is it really about cost-benefit analysis or should that be the end of the inquiry? i would argue it should. another example is the guidance that was adopted in the. prior administration that stated one business could be liable for the actions of another because they were a joint employer by virtue of indirect control. i'm going to tell the story by way of example, and one of the best examples that i saw was the brief that was filed by microsoft. in opposition to this i should add. in march 2015, microsoft
announced a new corporate responsibility initiative. microsoft would be do business with large suppliers only if those supplies provided employees with at least 15 days of paid annual leave. it is absolutely microsoft's prerogative to decide who does business with and to say were going to do business only if our suppliers enact certain policies because we believe that makes for better suppliers, more stable supply chain staff, the right. suppliers also have a choice to adopt a policy and do business with microsoft or not to do so. that is the suppliers) the government that ruled ground fly availability on indirect control, however generally spans forward. here's what happened. shortly after microsoft announced initiative, a union representing employees of one of microsoft employe
employers demanded they engage in collective bargaining with that suppliers union. they cited the leave policy or their criteri criteria for their suppliers and argued it was now a joint employer and thus that microsoft was liable for the action of the suppliers. well, the department has rescinded that guidance and here's why. putting aside the policy argument, that is changing fundamental structures of law. for decades, if not centuries, the notion of limited liability or corporations has been one of the basis of our society. we want to change that notion, that fundamental value, that liberty of corporation to proceed based on how they went
and hired suppliers without taking on the suppliers employees? by guidance? not even by rules but by guidance, by subregional try guidance, going back to where i started, isn't that a fundamental change in the interpretation of the law? and so, i say this because in so many ways what we are seeing is regulations being used to restrict liberty. it is under the guise of economic analysis. subregional try guidance is being used with regular cost-benefit analysis and i think we need to take a step back and really think about that. one project i think is particularly important is that we also think about when i will call sub regulatory guidance. here's what i mean by that. how are the policies within
various department of government impacting americans? how does our approach to enforcing or interacting with americans affect them? that's not even a question of role or guidance, but that's a question of operations, and in so many ways, operations also impact liberty. something as simple as calling someone up and saying hey we are going to, we understand that you're not required to do this by law, but an audit would be so much better if you actually did that and they know that none of you have a report of that happening, but that is impacting liberty just as much and that's also having economic effects.
and so, i wanted to talk a little bit about this because my concern is that as we talk about regulatory rollback and the president is very, very far ahead of expectation or not, 22 - 1 regulations being taken off the books, billions of dollars saved, i think in an effort to quantify this we can sometimes get lost in the forest. the forest is this is being done to preserve liberty. and so, it's not about us quantifying it, it's about a qualitative outcomes of this endeavor. principles matter. we are founded on the belief that americans should be trusted to government cells. if we trust americans to sit on juries and disk decide this of fellow men and women, and if we trust them to elect representatives to government,
we should certainly trust them to exercise individual choice and have the liberty to make decisions about the way they want to live their lives in less there is a very, very very good reason not to. thank you very much. [applause] [applause] >> i want to again thank secretary costa because what we wanted to do with this program, and you will see this in the speakers we have coming up, we wanted to provide, what you saw just now, this is the intellectual in underpinning. we all went in and said sub regulatory guidance bad, but this is the kind of deep thinker that's in there figuring out the underpinnings of these arguments. why it is, why it's so
destructive, and i just want to tell you how much i appreciate your willingness to create that framework in which this administration is moving. >> thank you so much. >> thank you. >> along with that intellectual framework, we will do a switch up here in just a second. [inaudible conversations] >> i have the distinct privilege to be on the stage with two commissioners.
i would like to introduce dick wiley, he has received numerous accolades throughout his career including being named divisional visionary, one of the top 100 men of the century by broadcasting cable and more. the list is huge. i'm not going to go through all of them because i think you really want to hear from him. okay. in that case, he also was chairman of the federal medications commission et cetera. he is well known to this organization. he is a member of our board of governors, he is also one of only two people who has received both republican lawyers of the year end our prestigious award. with that, i will turn over the microphone. [applause] thank you.
>> ladies in german, several years ago as you may recall, we were very privileged to have commissioner high with us from the fcc, and we are very happy today that he is back for a return engagement, but this time as german pipe. [applause] what a tremendously active year he has had at the helm, both substantively and procedurally. our guest grew up in a small town in kansas, the son of indian immigrants, both doctors. he then went on to harvard and university of chicago law school graduating with honors from both of them, served as an editor at chicago and clerked on a federal district court thereafter. his professional career includes chief counsel of the office of legal policies in the department of justice,
chief counsel of the senate judiciary committee, general counsel of verizon, and partner at a large law firm here in washington. mr. chairman, good to have you back. we have here a room full of lawyers from around the country, but many of them do not practice in the medications field. as we discussed some key fcc issues, perhaps you can provide some context and background. i thought maybe we would start with what else, network neutrality. it is very often a highly discussed issue. can you tell us what that issue is really all about? why is it so controversial? >> sure thing. first and foremost, thank you to the republican lawyers association for having me back. thank you for the very kind words of introduction. i was struck by your
description of secretary acosta as a deep thinker. he has a very important job before him. my job is different. i succeed when everyone in america can play connected game of angry birds. that's not exactly as important of secretary costa's mission but we do have an important mission here at the fcc. net neutrality is something you have probably seen in the news and typically is accompanied by the question of what is it and why does it matter. part of the reason why it has alluded the definition over the years, has come to mean virtually anything people wanted to mean when i think a combination of politicians and special interests and others have cast it as a question of whether the internet will survive after the fcc made a decision in 2017. some claimed it as the end of the internet as we've noticed. you probably notice the internet is still in it assistance, still works and that's part of the problem
that there's no definition. the fundamental question is how do you want the government to regulate this thing called the internet? do you want to be preemptive regulation? based on a series of heavy-handed regulations that were adopted in 1934 to regulate the at&t telephone monopoly, or do you want more light touch market-based relations which is pioneered in the clinton ministration in the mid- 1990s and which served the american economy so well until 2015. we took a look at the issue and determined based on the facts and laws that the better approach was to return to the light touch framework. the previous administration in 2015 imposed on the party line vote, and at the insistence of the previous president that these heavy-handed regulations would be imposed on the internet. to treat it as a utility. the argument that we have made based on the fact of what we saw on the record is that if you want something to operate like a slow moving utility there's no better way to do that than regulating it as
such. as i talked to people around the country, all places i have been in many more, the number one concern they have is that they want more access. the one competition. they want the internet to be better and faster and cheaper. : : . we are hopeful that by moving back to the market-based regulations we will be able to return the successful framework we had from 1996 all the way until 2015. it served the internet economy so well. the trade commission has take
targeted action against any competitive combat they see in the market place. it requires all these internet service providers to be very clear to consumers in with the commission about what it is they are doing and i think consumers will see in the time they come that our framework is the one best calibrated to promote a good online experience for consumers and promote info structure investment and to ensure the federal trade commission is once again empowered to protect competition. >> what do you think lies ahead in the courts on this issue? >> this has been litigated for a while in this particular round is no different. a number of petitioners were filed in two circuit courts and now they have been transformed back to the dc circuit i would imagine that in due course they will make a decision. i don't have a particular
timeframe on that but we'll see how it goes. >> this issue has gone back and forth and do you think the ultimate answer will lie in congress perhaps legislation that would deal with this issue once and for all? >> that is ultimately where most people would like to see it end up and i have consistently said that after the rejection of the previous piece net neutrality rules in 2014 that the ideal solution would be to turn to congress and let congress update the rules of the road to match the digital era. we are now operating based on a statute those first developed in 1934 and even the most recent pronouncement by congress was in 1986. this is the era of altavista and cd-roms in mail and net modem and this is an era which we are crafting these rules and said to me it would be great for the
elected officials of our country to say we agree on certain basic principles we don't want companies blocking access to lawful traffic and a throttling access. we don't want any kind of competitive prioritization arrangement that would harm small companies. these are the basic things that most people can agree on and takes congress to take the pen and put it into law because last thing we want is for these rules to remain uncertain for the rules to be dependent upon who is in control of the fcc. >> what about the fast lanes and slowly? >> this is another question that congress has tackled. one can envision procompetitive and any competitive arrangement. procompetitive in the sense that, for example, if you run a telemedicine operation in trying to monitor patients remotely you might think the traffic is more important than sending an typical e-mail. this i