Another Instance Of Our Non-political Expert Regulators In Action

By Francis Menton

Another Instance Of Our Non-political Expert Regulators In Action

November 03, 2023/ Francis Menton

In the Progressive utopia championed by Woodrow Wilson and his successors, government will iron out the imperfections in human affairs through the use of regulatory agencies run by non-political experts. Such people, being experts and completely non-political, would pose no reason for concern about abuse of power, because of course they would never seek go outside their proper regulatory portfolio to use their authority to stamp out the freedoms and speech of their political opponents on important topics of the day.

In the real world government regulators since the creation of their agencies have inevitably used their powers to disadvantage and silence political opposition. The last few years have seen this phenomenon taken to new levels of blatancy and aggressiveness. In one of the most notable examples, the case of Missouri v. Biden, covered several times on this blog (for example here and here), has brought to light an entire “censorship industrial complex” of federal regulators during the Biden presidency pressuring social media companies to suppress the speech of those opposing official government narratives on topics including Covid-19 origins, lockdowns, vaccine efficacy and side effects, climate change, and much more. Missouri v. Biden (now under the name Murthy v. Missouri) is currently before the Supreme Court, which is considering whether to sustain an injunction against the government’s conduct issued by a district court in Louisiana and mostly affirmed by the Fifth Circuit.

Today comes news that another case raising similar issues has just been accepted by the Supreme Court. This one goes by the name National Rifle Association v. Vullo. The report that the case has been accepted by the Supremes comes from Eugene Volokh on his blog the Volokh Conspiracy. Mr. Volokh is one of the lawyers for the NRA in the Supreme Court. All the relevant documents in NRA v. Vullo, including the opinion below from the Second Circuit and the Cert Petition itself, can be found at the Supreme Court’s website.

NRA v. Vullo illustrates the extent to which regulators today, particularly in blue states or under Democratic administrations, feel themselves completely unconstrained to use their powers to suppress political opponents without the slightest concern about statutory or constitutional limits. New York is going particularly over the top in this regard, and this case unsurprisingly comes out of New York. It involves efforts of the Department of Financial Services and its then-head Maria Vullo, with the active support of then-Governor Andrew Cuomo, to attempt to put the NRA out of business.

You might ask, what regulatory authority does New York’s Department of Financial Services have over the NRA? The answer is, none. But it does have regulatory authority over banks and insurance companies. So it adopted a program of regulatory announcements, threats, “guidance,” press releases, and so forth to coerce/force/shame the banks and insurance companies under its authority to cease to do business with the NRA.

The procedural history so far is that a district judge in upstate New York (Thomas McAvoy) denied the State’s and Ms. Vullo’s motion to dismiss in substantial part, allowing the case to proceed; but the Second Circuit reversed. Under the Second Circuit’s decision, the allegations of the conduct of Ms. Vullo and the DFS were held insufficient to state any claim or justify any relief.

NRA’s Cert Petition cites numerous allegations from the Complaint in the case setting forth what Ms. Vullo did in her campaign to use her regulatory powers over banks and insurance companies to destroy the NRA. Here are a few examples (from Cert Petition pages 9-11):

• Vullo launched an investigation that ostensibly focused on Carry Guard [an insurer that marketed an affinity product with NRA] but quickly expanded to target all the so-called “affinity” insurance products marketed to NRA members—including policies marketed identically to non-NRA affinity groups. . . . Vullo’s investigation targeted no self-defense insurance products except ones endorsed by the NRA.

• Vullo threatened regulated institutions with costly investigations, increased regulatory scrutiny, and penalties should they fail to discontinue their arrangements with the NRA. These exhortations were not limited to Carry Guard, as she indicated that any business relationship with the NRA would invite adverse action.

• Beginning in February 2018, Vullo held several meetings with the executives of institutions subject to her regulatory power. At those meetings, she made back-channel threats that they cease providing services to the NRA in connection with affinity-insurance programs that the NRA endorsed. . . . Although Vullo discussed many technical regulatory infractions plaguing the affinity-insurance marketplace, she made clear that her real interest lay in causing the companies to stop providing insurance to the NRA.

• On April 19, 2018, Vullo had DFS issue official regulatory guidance . . . directed at all banks and insurance companies doing business in New York. . . . In the Guidance Documents, DFS favorably cited groups that had “severed their ties with the NRA” as examples of “corporate social responsibility,” and warned regulated institutions of the “reputational risk” of further “dealings with the NRA” in light of the “social backlash” against the group for its Second Amendment advocacy.

And it goes on from there. Under the Second Circuit’s opinion, all of this kind of conduct against political opponents is perfectly OK, and provides no ground for a court challenge. Here’s more on the Complaint in the case from a blog post by Mr. Volokh at the time of the filing of the Cert Petition back in February:

Among other things, the Complaint states that Superintendent Maria Vullo: (1) warned regulated institutions that doing business with Second Amendment advocacy groups posed "reputational risk" of concern to DFS; (2) secretly offered leniency to insurers for unrelated infractions if they dropped the NRA; and (3) extracted highly-publicized and over-reaching consent orders, and multi-million dollar penalties, from firms that formerly served the NRA. Citing private telephone calls, internal insurer documents, and statements by an anonymous banking executive to industry press, the Complaint alleges that numerous financial institutions perceived Vullo's actions as threatening and, therefore, ceased business arrangements with the NRA or refused new ones.

Among the precedents that Mr. Volokh cites in support of the Cert Petition is Bantam Books v. Sullivan, described in the Cert Petition as follows:

Bantam Books v. Sullivan (1963) held that a state commission with no formal regulatory power violated the First Amendment when it "deliberately set out to achieve the suppression of publications" through "informal sanctions," including the "threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation."

The more you learn about what regulators are up to, the more you realize that the essence of the job is abuse of power.