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Overlapping jurisdiction of federal regulatory agencies can lead to confusion and sometimes even contradictory requirements for private actors, and turf battles among agencies. Further, questions arise about the legitimacy of regulations promulgated by an agency that does not appear to have primary responsibility for an area, when the agency that has that primary responsibility has failed or declined to act.
Among the myriad items in the 2016 omnibus appropriations bill were two curious provisions: a prohibition on the Internal Revenue Service from spending funds to write new regulations governing 501(c)(4) social welfare organizations, and a prohibition on the Securities and Exchange Commission from spending funds to write regulations that would require companies to report political contributions and donations to tax exempt organizations. Both edicts are responses to intense advocacy for these agencies to undertake the respective rulemakings, following refusal by the Federal Election Commission to expand disclosure. Moreover, advocates of campaign finance regulation continue to seek new political regulations at the Federal Communications Commission and for the Department of Justice to undertake broader inquiries. As a whole, one might call these efforts “administrative hopscotch”—seeking regulation or enforcement from an agency when another with unequivocal jurisdiction refuses to act. Is expanding the jurisdictions of federal agencies to such extent that they may regulate the same activity a constitutional problem? Practically speaking, what does this mean for innovators when they must comply with repetitive or diverse red tape? Furthermore, what happens when the regulations conflict, as already seen between certain IRS and FEC provisions?
Ideally, this panel would feature former commissioners from executive agencies who have faced these efforts. They could briefly discuss what they considered the appropriate regulatory purview of their agency, their thoughts on administrative overlap, and whether or not administrative hopscotch is a real problem. The FEC circumvention is ongoing and intense, with media scrutiny and support of hopscotch by its more active commissioners. However, it is likely there are many examples that would make for good discussion and an important panel.
This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.
- Hon. Paul S. Atkins, Patomak Global Partners and former Commissioner, Securities and Exchange Commission
- Hon. Ronald A. Cass, Cass & Associates and former Commissioner and Vice-Chairman, US International Trade Commission
- Hon. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Commissioner, Federal Election Commission
- Moderator: Hon. Laurence H. Silberman, U.S. Court of Appeals, D.C. Circuit
The Mayflower Hotel