Government Agencies

Address by Senator Dan Sullivan - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Dan Sullivan, Dean A. Reuter May 20, 2016

United States Senator Dan Sullivan of Alaska delivered this address during the Fourth Annual Executive Branch Review Conference on May 17, 2016.


  • Hon. Dan Sullivan, United States Senate, Alaska
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Who Wins at Administrative Hopscotch? - Event Audio/Video

Fourth Annual Executive Branch Review Conference
Paul S. Atkins, Ronald A. Cass, Bradley A. Smith, Laurence H. Silberman May 20, 2016

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
Washington, DC

The Department of Labor’s Fiduciary Rulemaking: Impacts, Implications and Related Policy Issues - Podcast

Financial Services & E-Commerce Practice Group Podcast
Jeffrey T. Dinwoodie, Annette L. Nazareth May 10, 2016

On April 6, 2016, the Department of Labor released its much-anticipated “fiduciary” rulemaking, which will greatly expand the universe of entities and persons who will be deemed fiduciaries with respect to retirement plans and accounts. The rulemaking has garnered significant interest from members of Congress, federal and state regulators, FINRA, the financial services industry and investor advocates, among others. Our experts discussed the new rules, and their history and purpose. They also explored several of the key policy issues and controversies associated with the rulemaking.


  • Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP
  • Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP

Affirmatively Furthering Fair Housing - Podcast

Civil Rights Practice Group Podcast
Peter N. Kirsanow, Stanley Kurtz April 21, 2016

In July of 2015, the U.S. Department of Housing and Urban Development (HUD) announced its final rule on Affirmatively Furthering Fair Housing. HUD touts the rule, promulgated under the Fair Housing Act of 1928, as a critical tool to help communities “take significant actions to overcome historic patterns of segregation, achieve truly balanced and integrated living patterns, promote fair housing choice, and foster inclusive communities that are free from discrimination.” Critics charge that the program is a power grab that improperly applies disparate impact analysis and incorrectly views geographic clustering of racial and ethnic minorities as evidence of discrimination and segregation. Our experts discussed the merits of the rule from both law and policy perspectives.


  • Hon. Peter N. Kirsanow, Commissioner, U.S. Commission on Civil Rights
  • Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center

True the Vote v. IRS - Podcast

Federalism & Separation of Powers Practice Group Podcast
John C. Eastman April 14, 2016

True the Vote, a Texas-based vote monitoring organization intent on policing and preventing voter fraud, brought suit against the Internal Revenue Service alleging discrimination against conservative organizations applying for tax-exempt status. On Thursday, April 14, additional oral arguments were held in the D.C. Circuit Court of Appeals. Advocate Professor John Eastman joined our Teleforum to discuss the merits of the case, its procedural posture, and the argument.


  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law