We also have people joining us online. Thats what youre hearing. Again, to everyone in the room, welcome and thank you for coming. It is a privilege for me to be here today in my capacity as cohost along with josh wright of the antitrust and Consumer Protection working Group Transparency project. This project was launched in 2016 to foster a National Conversation around the regular excess and the harms it causes. It consists of 12 working groups. Policy ranging from Environmental Energy to race and sex. In june of this year, each of the working groups started to release various issue papers, podcasts and short video crows which among other things can be found on our website which is regproduct. Org. Todays spaniel the first of these conversations for the antitrust and Consumer Protection working group and it is devoted to occupational licensing and other restraints on competitions. Im going to turn it over to my comoderator and our hosts were today, lisa kimmel. Thank you very much, koren. My name is lisa kimmel and im senior account with your in at the antitrust group. Like everyone else that you hear from on the panel today, before joining the law firm i spent some time at the federal trade commission where was the antitrust advisor to former chairwoman edith ramirez. Antitrustthere on matters in that particular sector in the intersection of intellectual property. We really want to welcome everybody to the firm and thank you for the opportunity to host this program. With that, ill introduce our very Prestigious Group of panelists. First of all, we have maureen. She was sworn in this 2012. Before joining the commission, she was a partner at Wilkinson Barker where she focused on ftc issues. Competition law, technology, and privacy. I want to say the acting chairman has a long history of ftc service. Before rejoining the commission, she had served as the Deputy Director and the director of the ftcs office of policy planning. She was also an turn advisor for ftc commissioner Orson Swindle and she began her ftc career in the general counsels office. Let me also add before joining the ftc for that first stent, she has spent five years at the u. S. Courts of appeal for the d. C. Circuit serving as a law clerk and staff attorney. She graduated with distinction from the Antonin Scalia law school at George Mason University and with honors from university of virginia. Thank you for joining us and well, to the program. To my immediate right we have Professor James cooper, professor cooper is an associate professor of law at Antonin Scalia law school at George Mason University. James brings over a decade of public and private sector experience to his research and teaching work. James also spent time at the federal trade commission where he served as the deputy and acting director of the office of policy planning and is an attorney advisor to the federal trade commission or bill. I wanted to note james also spent some time here with the antitrust group, a fairly fine firm Crowell Moring in his earlier career. We are happy to welcome james back. His research at the law school focuses on competition and Consumer Protection issues including privacy, data security, state restraints on competition, behavioral economics and antitrust treatment and price discrimination. Imagine statute said that. We also have virginia who cochairs a working group. Argued a motion in full circuit appeal on behalf of the virginia board of medicine and its Board Members fornst an antitrust case practicing outside statutory scope of practice. Most recently she represented andcommonwealth of virginia has worked with federal enforcers to challenge other mergers. Before coming to the Virginia Attorney generals office, she spent eight years at the federal trade commission. Thank you very much and with that i will turn it back over. The format today is interactive discussion led by the moderators. We will reserve 1015 minutes at the end for audience questions. Occupational licensing and state restraints on trade has made competition receives significant bipartisan attention. In 2015, the Obama Administration outlined the growth of such restraints and the impacts on worker and work arrangements. Earlier this year, acting chairman all have said of the ftc launched a task force which im sure she will tell us about. Chairman, if you could start us off to give us an overview of the main concerns and issues. Thank you everyone. Thank you to the Federalist Society for posting today. This is one of my favorite topics. I spent a lot of micro focusing on this. It isno accident something the ftc has focused quite a bit on because we do Consumer Protection and occupational licensing. This is at the intersection of those issues. Very often the restraint on entry to a profession is put forth as necessary for Consumer Protection reasons. Wellplacedcularly to think about that. Does that make sense to us . The issue of occupational licensing has come to the forefront because occupational licensing has exploded. Going back to the 1950s, a study suggested fewer than 5 of occupations required a license. Today that is approaching 30 . What has changed during that time . The number of occupations and types of occupations licensing has extended to has gone beyond someone can say, well who is doing a healthy and safety related thing needs to be licensed but we have cases now licensed. Ists are interior designers are licensed. Licensed. Rs are why is that happening . That is on the antitrust of analysis comes into play. As we needized this to be alert to private and competitive conduct but the actions of the government can also be anticompetitive and in a way that is a lot less likely to be eroded by market dynamics. What i called the brother may i program. You need your competitors permission to enter the market. That is one issue we have seen where we have a board of active Market Participants saying, you need this license. Our North Carolina dental case, they said the practice of requires more in the state of North Carolina. I think the problems here are manifold. Anticompetitive program where you say, consumers may be pay more for a service or have fewer choices or there may be less innovations happening because of these onerous practices. Workers have lost the ability to enter an occupation more freely. Clark back there has paid wonderful attention to this and done great work in this area. I think that is one of the issues here, what about the individual worker and their ability even if they have a skill that we all agree requires a license, if they are moving from state to state they have to undergo that licensing all over again. Certainly that is not necessarily an antitrust issue. We focus more on where you have an active Market Participants saying, you cannot compete with me. But on our advocacy role that is statese tried to talk to and other parts of the government about these issues because they are hitting certain populations quite a bit more onerous lead that others. One of them is members of the , the spouses. Members of the military move a lot and get deployed to different places around the country and often their spouse has a job that requires a license. They have to undergo tons of training even if they are been active in the field already. It has led to i think it is one of the contributors the fact that weve got an Unemployment Rate of almost 20 in that population. So that is why i launched my Economic Liberty Task orders at the ftc. I see it as an attempt to shine a real spotlight on this issue. Certainly we can continue to bring Enforcement Actions where appropriate but it is mainly an at advocacy role. I talked often about being a coalition of the willing because i think a lot of groups, consumer organizations, you mentioned bipartisan appeal of this has extended to a lot of the interest in this topic to a lot of different areas and i worked with states, Governor Scott walker and i did a joint oped on this issue. I think were in a particularly good time to make progress on this issue, but the problem is the lack of competition, the higher prices, lower innovation but also the effects on the workers. Thank you, acting chairman. Sarah, we are really interested to hear from the states perspective on the occupational licensing issues the acting chairman. Thank you to the Federalist Society and koren wongervin and george mason for inviting me to be on the panel today to be the spoiler on the panel. Id like to start with a disclaimer that the opinions i express today are only mine. They dont reflect necessarily the opinions of virginia ags office or any other participants in the National Association of attorneys general. And it is a little odd for me because at 95 of the time i am the antitrust counterparts are or enforcers like the federal agencies that we work with quite often, the ftc and dha. But in this one little area with flip and would become Defense Attorneys for state boards and state agency that arches up at a competitive behavior because were the antitrust experts in the state. So being the state apologist on this panel is a little backwards to me, but so is the position of otherwise staunch state rights advocates like senator mike lee and senator ted cruz, but we will talk about their occupational licensing bill in a minute. So my personal perspective from the stateside is that i see a lot of value to this wider philosophical discussion about whether too many occupations required licenses. I also basically agree with the Supreme Courts decision in c versus dental pick but at the end of the day it should be left up to the states to decide how to structure their economies, how to structure their government and how to provide for the health and safety and welfare of their citizens. I applaud the ftcs efforts to educate state legislatures and others about the dangers to the National Economy of too much licensing. I support their enforcement efforts. However, i do not support the federal government attempts to preempt states abilities to decide these issues for themselves or to dangle state action immunity as a carrot in order to coerce states into providing active supervision into a manner it sees fit or to adopting its glossy about the appropriate professions to license. Under current case law principles of federalism allow states to decide which occupations they will license as opposed to professions that only require certification, registration or have no restrictions at all. Once a state legislature has authorized a licensing scheme with a board of active Market Participants as Board Members, the only question that remains in order for the board and its members receive state action immunity are whether they meet the two prongs, which is one of them was the board following a clearly articulated and affirmatively expressed state policy to displace competition, and whether the board was actively supervised by a disinterested state official to ensure the boards actions were consistent with that policy. There is some ambiguity in the nc dental opinion about whether the active supervisor only had to determine that the boards actions were consistent with state policy or whether there to go beyond that to look to see whether it was unduly burdensome. But there is no requirement that the active supervisor inquiry into whether the board used the least restrictive alternatives to achieve the legislatures goal. There is no ability for the active supervisor or the state courts to disregard the state legislatures intent to displace competition in favor of a licensing scheme. Moreover, states could easily decide to get rid of all of their state boards and switch to the oversight of license occupations from the boards to traditional state agencies with fulltime salaried state employees. That gets rid of the need for active supervision but has many disadvantages, the most obvious being it would add millions to the budget to employ all those people because state Board Members currently serve with no pay in most cases. It would also not necessarily change the state legislatures philosophy about which occupations to license. While making it harder to actually maintain an antitrust challenge against the state. While it would take care of the problem of Board Members acting in their individual selfinterest, it would not address a different problem which is regulatory capture of the state employees who start sympathizing with the people and industries that they regulate. Finally i would add that a large majority of the work does not restrict competition. Board members who practice in the profession are usually the best people to vault standard of care cases. Many cases involve ethics violations or behavioral standards of licensees. Licensees who operate when intoxicated or lawyers who dip into their escrow funds. While licensing a regime itself may restrict competition, most individual licensing decisions involve no discretion on the part of the Board Members. Either they can check the boxes criteria toctive receive a license, or she doesnt. In that case, it seems massively unfair to subject the board or Board Members to trust damage liability for a decision that the state legislature made and that the Board Members were required to follow. Thank you. I really appreciate the diversity of views. We want to have a conversation on these. Im hoping well have a dialogue. Any thoughts from the other speakers . I would like to weigh in on your points. I think we agree on many, many things. I also am sensitive to the fact that we operate in a federal system. And that the states are sovereign and they can take these actions. There is a twofold question here. Should they be taking these actions . I hear a lot about liberties. I want to advocate that before any policy maker, whether it is at the federal level or the state level. That is a lot of what were trying to do here is to say is this really best for your citizens . It is a twoapplication public choice hearing where we have concentrated benefits to the providers and they are going to lobby and say, here are all the good things this licensing regime is going to do. The consumers who are paying the price dont know whats happening. They are not going to be there. Were trying to step into the shoes of the consumers and the workers and say hey, consider these things too. But on the second issue, for state action doctrine, i think thats what it is really trying to do. It is trying to say is this truly an action of the state rather than the state and one of my favorite phrases is casting a gauzy cloak, a state authority on what is essentially private economic conduct, so i think that is kind of the other factor, is it truly the states of action rather than devolving that to a private actors who will often act in the own private interest. I know you wanted to weigh in. I would quickly respond that Board Members, if you talk to them they are really trying to do their best and the most instances. Maybe theyre acting in their self interest. Sometimes its pretty blatant like the North Carolina dentist case. But i think a lot of these cases are really on the margins where they really think theyre doing the right thing. So it seems a little paternal for the federal government to say should you be making these decisions . We dont think you should and we will make it so you dont get state action immunity unless you do it the way we think you should do it. That was my point on that. I think sarah and chairman ohlhausen covered most of the ground here, but i want to add is i just want to make sure we are talked about occupational licensing regimes that i think sarah alluded to this that we talking more broadly not just limiting, in fact, setting up credentials and saying if you dont get score x on your marks and you can be an attorney, or thats the quintessential case you cant be a hair braider if you dont have x number of hours. Thats one level that a lot of the work i did when i started at the ftc in the office of policy planning was looking at a host of state restrictions on competition that maybe you can put them in the occupational licensing category but attorney, limits on attorney advertising. We have had several Supreme Court cases on First Amendment issue surrounding but there still to this day state bars that try to limit the ability of attorneys to advertise. Does that fit into occupational licensing . You can maybe put in that but its a different animal, minimum service requirements. There was an issue with that when the internet was burgeoning and online real estate providers, and the traditional real estate providers didnt like that. What did they do . Statesied to in various minimum requirements that if youre going to be a real soate agent youve got to do showings. Injected all these sort of things, why . To prevent this intermediation. Again, in several occupational licensing . And wasnt about when you can be a Real Estate Agent or not. It was regulations that are promulgated by these boards. North carolina dental wasnt so much of it who could