by E&E Legal Senior Policy Fellow Greg Walcher
As Appearing in the Daily Sentinel
Here’s how our scheme will work. I am a federal regulator, and want to make a new regulation. However, the legal rulemaking process is complicated and time-consuming. Even worse, most people are actually against it, so it might not get done through the regular process, because that requires public involvement and lots of pesky people will get involved.
Our end-run around that process will be simple, and brilliant. You sue me, demanding in court that I make this new rule. Then, I’ll have my lawyers settle the case out of court — by agreeing to your demands. That way, I’ll be required by court order to issue the new regulation, which I wanted to do anyway. For your trouble, I’ll pay you millions in legal fees, and you’ll be able to afford plenty of lawyers to do it again on some other issue, upon which we secretly agree.
That last detail is vital. We have to keep the whole thing secret, because the public would never stand for it. After all, I am a public official, and we are doing public business with public money. So, part of our out-of-court legal settlement will be a sealed non-disclosure agreement. Complete secrecy will be included in the court order. Bazinga!