The Environmental Protection Agency is the most brazen of them all, but other agencies, aspiring to the title and eager to get into the act, are trying to imitate the EPA's lawless lawmaking.
The Department of Labor (DOL) overreached with its new “persuader rule,” mischievously tweaking the Labor-Management Reporting Disclosure Act ( LMRDA) – which requires employers to report the use of consultants to communicate directly to employees regarding collective bargaining issues – to eliminate the longstanding “advice exemption” for counsel and assistance given to employers by consultants.
In its original form, the act is of dubious constitutionality, but removal of the exemption would make matters much worse.
Fortunately, a Texas federal judge has issued a preliminary nationwide injunction against the rule, preventing its implementation pending appeal or final resolution of the case. West Virginia recently joined the suit with the judge’s approval.
“DOL's New Rule is not merely fuzzy around the edges,” concluded Senior Judge Sam R. Cummings for the U.S. District Court for the Northern District of Texas. “Rather, the New Rule is defective to its core because it entirely eliminates the LMRDA's Advice Exemption.”
Judge Cummings also concluded that the new rule is arbitrary and capricious, unnecessary, an abuse of the agency's discretionary powers, an abuse of attorney-client privilege, a violation of the First Amendment rights of free speech and free association, a violation of the Fifth Amendment right to due process, and a violation of the Regulatory Flexibility Act (which requires a reasonable estimate of the financial burden expected to be borne by the parties affected by the rule).
With the advent of a new administration in January, maybe we can reestablish an appreciation for free enterprise and remind regulators that businesses have the right to use consultants to improve their operations, their public images, and their profitability – and to have confidential communications protected from competitors and agitators.