Labor’s rule will be a proposed regu-
LAWMAKERS WEIGH IN
lation with a notice-and-comment peri-
od, according to Reish. “I don’t see how
they can piggyback it on any [rule] the
Department has done in the past.”
But Reish added that “for appear-
ances’ sake alone, [Scalia] should abstain
from participation in the development
of a new fiduciary regulation and any
prohibited exemptions that are similar
to those he opposed in court.”
Senate Majority Leader Mitch McConnell
met with Scalia on July 30, and stated
that he looks forward to the Senate’s
forthcoming consideration of his nomination. Confirmation hearings will be
handled by the Senate Health, Education
Labor and Pensions (HELP) Committee.
But senate democrats are already balk-
WHO IS SCALIA?
ing. Sen. Patty Murray, D-Wash., ranking
member of the HELP Committee, said
in a July statement that she opposed
Scalia’s nomination in 2001 to serve
as Labor’s solicitor during the George
W. Bush administration “because of his
hostility towards workplace protections
and his positions on workplace harass-
ment and workers’ health and safety.”
A son of late U.S. Supreme Court Associate
Justice Antonin Scalia, Scalia was the
lead Gibson Dunn attorney who argued
against Labor’s fiduciary rule before the
U.S. Court of Appeals for the 5th Circuit,
which vacated the rule last June.
At Gibson Dunn, he co-chaired the
firm’s Administrative Law and Regulatory
Practice Group and was a member of its
Labor and Employment Practice Group.
Scalia told Investment Advisor last
March that the fiduciary issue “is a matter
that ought to be addressed by the SEC.”
Scalia argued in the interview that the
now-defunct Labor Department fiduciary
rule “was not about ERISA. It was far and
away mainly about IRAs and the tax code.
What you saw [with the fiduciary rule] was
a statement by [former] Assistant Secretary
Borzi and others that basically the law that
Congress enacted wasn’t good enough.
That kind of assessment is not the Labor
Department’s job, yet they acted as if it
was proper for them to step in [and rectify]
what they saw as errors” by Congress.
Washington Bureau Chief Melanie Waddell can
be reached at email@example.com.
Protection is good.
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