close X
05/10/2019

Cause of Action Institute at D.C.’s 2019 Small Business Expo

Yesterday, Cause of Action Institute (CoA Institute) joined hundreds of small business owners and entrepreneurs at the 2019 Small Business Expo in Washington D.C. CoA Institute has long been an advocate for protecting the economic rights and freedoms of small businesses, and connecting with stakeholders at this event proved this fight is still as important as ever.

We have previously represented clients from various industries who have been impacted by burdensome regulations, and the people we connected with at the Expo continued to be representative of the diverse fields and industries impacted by these policies. We spoke with people who own businesses in fields such as healthcare, beauty, finance, and tech who all claim that regulations from several government agencies negatively impact their ability to grow or operate their business. Barriers created by issues such as unnecessary occupational licensing requirements hinder many small businesses, and the attendees at the Expo were no exception to these harms.

Small business owners represent some of the greatest examples of the economic opportunities available to Americans. However, costly and excessive regulations far-too-often limit the potential for many of these entrepreneurs. Government regulations should support and promote entrepreneurial endeavors and innovative operations, and CoA Institute will continue to fight against regulations that thwart these opportunities.

Mallory Koch is a communications associate at Cause of Action Institute.

Media, Blog Learn More
04/26/2019

Auto-Tariff Investigation Sets Dangerous Anti-Transparency Precedent

Tariffs are often used as a costly tool that economically harms American consumers and business. These protectionist policies often invite turmoil and government overreach, and the tariffs proposed and implemented by the Trump Administration have been no different. In fact, with each round of proposed tariffs, it seems that the government has become less transparent about its process and rationale.

In an effort to advance its trade agenda, the administration has used four Section 232 investigations into different imports to justify tariffs on national security grounds. Although national security concerns may have a place in trade policy where there is a clear and narrow interest, Section 232 should not be used as a tool to bypass Congress when there is no legitimate national security threat. Nevertheless, this was the purported rationale of initiating the Section 232 investigation into auto imports despite the President’s assertion that the importation of autos and auto-parts themselves do not actually pose a national security threat.

So why was this investigation initiated and what did the U.S. Department of Commerce (Commerce) conclude from its investigation? Commerce proactively published its findings and documents supporting its case for steel and aluminum tariffs but refuses to do the same with its auto investigation.

After Commerce announced that it was launching a Section 232 investigation into the national security impacts of auto imports, they were required by law to notify the U.S. Department of Defense (DOD). Commerce announced that it sent notification of the investigation to then-Secretary of Defense James Mattis but have yet to release a copy of this notification, as they did with the Section 232 investigation into steel and aluminum tariffs, as well as with the uranium investigation.

In June 2018, one month after the investigation into auto imports was announced, Commerce Secretary Wilbur Ross told then-U.S. Sen. Orin Hatch that while Secretary Mattis accepted the proposition for the threats imposed by steel and aluminum imports, Commerce was not yet sure about DOD’s views for the automotive sector. Neither Commerce nor DOD has released the Defense Department’s response memo to the auto-import investigation.

Due to this lack of transparency, Cause of Action Institute (CoA Institute) sent FOIA requests to Commerce and DOD on March 22 seeking DOD’s response to the investigation and any relevant communication regarding this matter. The government has yet to release a substantive response from either agency regarding these requests.

The lack of transparency compared to the steel and aluminum process is stark. The government has announced that it will not be releasing Commerce’s final Section 232 report and recommendations on auto imports to the public. Not only were the reports for steel and aluminum published upon completion but the government is statutorily required to publish in the Federal Register “any portion of the report submitted by the Secretary under subparagraph (A) which does not contain classified information or proprietary information.”

CoA Institute believes that this information should be disclosed as the statute requires, particularly if it is going to be used to justify a potential 25 percent tariff on cars and car parts. This is why CoA Institute filed FOIA requests to Commerce for a copy of the report. After Commerce failed to respond to the request within the statutory timeline, CoA Institute filed a lawsuit against the Commerce Department.

It is troubling that the government is not upholding its legal obligations or open-government practices when it comes to Section 232 investigations. Larry Kudlow, director of the National Economic Council, stated that the administration may delay the decision on whether to impose auto-tariffs beyond the 90-day deadline that began when Commerce completed and provided the report to the White House. It is not clear how or what legal justifications exist to allow the administration to defer the decision beyond the May deadline.

However, the lack of transparency on this issue is not a new concern when it comes to tariffs. In September, after reports emerged of potential corruption in the tariff exemption process for the already controversial steel and aluminum tariffs, CoA Institute filed three FOIA requests seeking information to clarify the methodology behind the exemption process. After the government failed to respond to any of the FOIA requests relating to the steel and aluminum tariff exemption process, CoA Institute filed a lawsuit against Commerce for this information. As a result of the lawsuit, the government has agreed to produce relevant records at the end of each month.

Tariffs can be an economically treacherous policy, eroding the economic freedoms of individuals, hurting businesses, and almost always causing consumers to pay more for products as the government picks winners and losers. In this instance, not only is the government imposing tariffs that harm Americans, but it is doing so in a manner that evades transparency and, in regard to the auto-tariff report, fails to comply with its statuary obligations. The path to a stronger economy is one that eliminates barriers to trade, not one that unfairly manipulates the free-market while withholding justification from the public.

—

Mallory Koch is a communications associate at Cause of Action Institute.

Blog Learn More
04/17/2019

CoA Institute Presents Winning Research Paper at 2019 National Freedom of Information Coalition Summit

On Friday, April 12, Cause of Action Institute (CoA Institute) Counsel Ryan Mulvey joined a panel at the National Freedom of Information Coalition’s (NFOIC) 2019 Annual Freedom of Information (FOI) Summit in Dallas, Texas to present a winning research paper co-authored by Mulvey and CoA Counsel and Senior Policy Advisor James Valvo. The paper presents a comprehensive survey of open records laws and identifies useful trends in how public access to legislative records is regulated at the state and federal levels. Ryan and James’ paper was one of three to be presented on a panel from 18 total submissions for the contest. Their underlying research evolved out of work originally undertaken for an amicus brief filed in the Georgia Court of Appeals.

The paper, “‘Opening the State House Doors’: Examining Trends in Public Access to Legislative Records” examines how all 50 states’ FOI laws address the question of access to legislative records. That survey reveals that 38 states provide some form of access to various legislative materials. Only 11 exclude the legislative branch from their public-disclosure laws, whether expressly, by implication, or according to judicial interpretation. The clear trend, in any case, is to construe state FOI laws in favor of public access.

Of the 38 states that provide requesters with at least some basic level of access to legislative records, 14 do so implicitly while the other 24 explicitly allow access to legislative records.

Of the states that explicitly cover the legislature in their FOI laws, there is some diversity in how the branch is included. For example, in two states the law focuses on the nature of the record subject to disclosure. North Carolina defines a “public record” to include materials “made or received” by a “public office,” including that of an elected official. Another 20 states focus on the kinds of government entities that must disclose their records upon request, including nine states that define an “agency” to include the legislature or legislative offices. Finally, in Missouri and Florida, access to legislative records is guaranteed by the state constitution.

Ryan and James identified 14 states that impliedly grant access to legislative records. Ten states do so based on the interpretation of terms defining the governmental entities subject to disclosure. For example, six states use the term “branch,” which is understood to include the legislature. Four states define the sort of record subject to disclosure in such a way to include legislative materials. And in six states, the presence of statutory exemptions—or protections that allow a record custodian to withhold information—only applicable to certain legislative records suggest that the legislature, as a whole, is subject to the FOI statute.

Finally, the survey found that of the 12 states that completely exclude the legislature from their FOI statutes, eight do so explicitly, two implicitly, and two based on judicial interpretation.

In addition to surveying state law, Ryan and James examined the treatment of legislative records under the federal FOIA. Specifically, they discussed the possibility that courts could look more seriously at the availability of records under the control of legislative branch agencies, and they pointed to the positive development in the case law governing the extension of congressional control over records that reflect the interaction of the federal legislature and the Executive Branch.

The full paper can be viewed here. The findings discussed above, and the graphics excerpted from the panel presentation, reflect developments in three states (Missouri, South Carolina, and Michigan) that are not discussed in the paper.

–

Ryan Mulvey is counsel at Cause of Action Institute. Mallory Koch is a communications associate at Cause of Action Institute. 

Media, Blog Learn More
03/30/2019

Recap: Cause of Action Institute at Seafood Expo North America 2019

Earlier this month, Cause of Action Institute joined more than 20,000 members of the fishing industry from across the globe at the 2019 Seafood Expo North America in Boston. For years, Cause of Action has monitored and brought legal challenges against the overregulation of our nation’s fisheries and its negative economic impact on fishing communities – especially small business and family owned operations. However, after three days of speaking with industry insiders last week, the breadth of the harm caused by administrative state overreach continues to appall us.

We spoke with people from nearly every corner of the seafood industry who are severely impacted by the government regulations that plague this field: trade restrictions such as tariffs or quotas, the cost of complying with regulations such as the Jones Act, one size fits all or outdated regulations that benefit certain companies at the expense of others, and offshore development that has the potential to bring many companies’ business to a standstill. Many of the visitors we engaged with were small business owners who fear regulations like industry-funded monitoring will run them out of business entirely.

Cause of Action was fortunate to be able to reconnect with former clients David Goethel and John Haran. For David, John, and many members of their respective communities, fishing is not only their livelihood, but also a large part of the culture of their respective communities. When faced with economic devastation from regulations like the Omnibus Amendment, the way of life that communities have spent years building is also threatened with destruction.

Cause of Action Staff with former client David Goethel

Stories like those we encountered last week serve as an important reminder of the direct consequences posed by arbitrary and excessive executive power. American’s should be free to live prosperous lives and reach their highest potential without the interference of an overbearing administrative state, and Cause of Action looks forward to continuing to strive towards this goal in the commercial fishing industry, among many other affected fields.

–

Mallory Koch is a communications associate at Cause of Action Institute.

Blog, Media Learn More