Prepared remarks: Colorado Bar Association Business Law Institute Keynote Address (September 19, 2025)
Rebuilding Trust Through Regulatory Excellence
Let me begin by acknowledging that we are living in a time of low trust in a range of institutions, including government. When people talk about how government operates, they highlight a range of concerns—it is too slow, does not listen to their needs, is too unresponsive, and often operates on inertia (doing things as it always has done them). For those thinking about and working on how government regulation operates, these critiques should inspire us to do better. In my talk today, I will discuss what better regulation looks like.
Before I get to the present, and the opportunities ahead of us, I will start with some background. Notably, I will discuss the traditional model of regulatory policymaking and the latest turn in this model, with the U.S. Supreme Court decision in the Loper Bright case.[1] Then, I will discuss best practices in rulemaking, highlighting how our department has, through our rulemaking authority, worked to develop a more rigorous and transparent regulatory process. Finally, I will talk about how best-in-class rulemaking is not only rigorous in its analysis and open in its engagement, but also adaptive in its design. To be sure, implementing such a model is not easy; it is, however, imperative to re-establishing trust in government administration.
The Modern Administrative Regulatory Landscape
The era of modern administrative law on the federal level begins with the Administrative Procedure Act (APA). The law sets forth a framework that requires transparency, accountability, and public participation.[2] Notably, it envisions that regulatory proposals will be developed through a notice-and-comment rulemaking process whereby, in theory at least, agencies must disclose proposed rules, allow for public feedback, and respond meaningfully to that input before finalizing regulations.[3]
One of the reasons for skepticism about public regulation is the concern that regulations developed by agencies do not reflect an effort to best serve the public but rather reflect what economists call “regulatory capture.” This concern, in short, is that special interests best understand how to work within the system and to influence regulatory processes at the expense of the general public. Take, for example, the Federal Communications Commission (FCC)’s merger review process. Rather than operate in a transparent or rigorous manner, it too often works behind the scenes and involves the negotiation of “voluntary” conditions, which take place in what is known as the agency’s “ex parte process.”[4] In most cases, this process rewards repeat players who know how to navigate the FCC process, leaving others at a relative disadvantage; the dynamics of this process is one of the reasons why former FCC Chairman Reed Hundt cited the agency as having a “reputation for agency capture by special interests.”[5]
For administrative agencies, a critical question is whether they can commit to and follow through on institutional improvement, looking for more effective ways to operate.[6] A case study in such an effort is the Federal Trade Commission (FTC), which, as former FTC Chair Timothy Muris put it, no longer is the agency “a passive observer swept along by” special interests.[7] In short, the FTC’s path towards institutional improvement highlights that failings, such as those cited as to the FCC, are not inevitable and can be addressed through innovative and determined leadership.
The Administrative Procedure Act, in theory, provides not only a commitment to procedural fairness, but also provides for better substantive outcomes. To advance that goal, the Office of Information and Regulatory Affairs, or OIRA, developed the practice of ensuring a level of economic rigor. To accomplish this, OIRA has long engaged in thorough Cost Benefit Analysis to ensure that regulation is effective as well as socially and financially responsible. This analysis, which first began under the Reagan administration and was refined by later administrations, requires a rigorous evaluation of both the proposed regulation and alternatives recommended throughout the process.[8]
For most of the life of the APA, courts viewed agencies as the bodies with both the relevant expertise and delegated authority to interpret and enforce regulatory statutes in their charge. This principle of deference became known as the “Chevron doctrine,” named for the U.S. Supreme Court case that ruled that courts should defer to federal agencies’ reasonable interpretations of a regulatory statute whose meaning was not fixed.[9] Just recently, however, the Supreme Court walked back that principle, concluding in Loper Bright Enterprises v. Raimondo that courts themselves should interpret regulatory statutes and not defer to agency interpretations per se.[10]
As I have explained previously, Loper Bright skips over the important and central premise of Chevron: that ambiguities in statutes are best interpreted as a delegation of authority to the agency.[11] Consider, for example, the issue in Chevron itself where the Court concluded that the meaning of the statutory term “stationary source” in the Clean Air Act is better understood as a policy choice made by an expert agency than a legal judgment made by a court.[12] As Justice Kagan’s dissent in Loper Bright put it, “agencies often know things about a statute’s subject matter that courts could not hope to,” as they “are staffed with ‘experts in the field’ who can bring their training and knowledge to bear on open statutory questions.”[13]
The future of Loper Bright and the ability of courts to superintend regulatory statutes remains to be seen. One potential promising middle ground could be a move to rely on what is known as “Skidmore deference,” following a 1944 Supreme Court decision of that name.[14] Under that decision, courts determine the level of deference owed to a particular agency on a case-by-case basis depending on the strength of the agency’s persuasive analysis and support for its position.[15] As the Court articulated in Loper Bright, Skidmore deference depends “upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”[16] Or, to put it differently, under Skidmore, agencies that do excellent work will get deference. The potential upside of this possibility is that, under Skidmore, agencies have an incentive to operate in a manner that earns respect because deference will be given to those agencies which demonstrate a high quality of reasoning, transparency of process, and consistency of interpretation.
Toward a More Effective Model of Regulation
At our best in Colorado, we should work to avoid needlessly burdensome requirements and ensure that the costs of regulation are no greater than the benefits we hope they achieve. This goal is so that we can help entrepreneurs and small businesses flourish, not hold them back. At our worst, like the federal government, regulatory processes can be too slow, too responsive to the agendas of larger companies, and can remain on autopilot, becoming irrelevant long before there is any effort to reconsider them. When our office was required to develop rules for the Colorado Privacy Act (CPA), we took this challenge to heart and worked to develop rigorous, transparent, and adaptive rules.
For those unfamiliar, the CPA, enacted in 2021, charged the Attorney General’s Office with implementation and enforcement of the Act. This duty came with the responsibility of adopting new rules to meet the ever-shifting nature of digital privacy protection.[17] Under the law, the General Assembly created new obligations that ensure that personal data is better safeguarded, Coloradans have access to meaningful information about the collection and use of their data, companies must conduct regular data protection assessments, and companies must obtain consumer consent before processing certain sensitive personal data.[18]
To implement the law, we sought out the communities most likely to be impacted by our work. In particular, we established a pre-rulemaking stakeholder process that included a meaningful dialogue with those eager to share their thoughts.[19] And in both our pre-rulemaking and rulemaking process, we adopted a learning mindset—asking questions and listening hard. By testing our assumptions and listening with an open mind, we ensured that we focused on the issues that mattered and avoided unintended consequences.
Through this approach, which included multiple rounds of comments, our office pursued regulations that were not only technically sound, but publicly grounded, developed through open dialogue with stakeholders, shaped by public comment, and documented with clear, accessible explanations. In doing so, we established a clear and persuasive legal record. Even if our office was entitled to Chevron-style deference under Colorado law, our commitment was to earn deference from all who witnessed our process and evaluated our work. That’s a standard that all agencies should seek to follow.
Work Ahead
The ideal version of the regulatory process is one committed to rigor and one in close conversation with community stakeholders. People across the state and nation have grown distrustful of leadership in America and right here in Colorado as well. That’s why many believe that government and regulation no longer operate in their best interest, but rather serve as stumbling blocks toward efficiency and success.
At a time of accelerating technological change, a challenge for regulatory policy is to develop adaptive approaches to regulation. To address technologically dynamic forms of regulation from cybersecurity to artificial intelligence, I have suggested developing models of “entrepreneurial administration.”[20] In short, this model of regulation emphasizes continuous improvement and the constant evaluation of the success of their new regulatory experiments. This approach, for many agencies, involves a cultural change to adopt a trial-and-error mindset, building the infrastructure for a culture of experimentation.[21]
In Colorado, and other states, we need to do better in building the infrastructure for continuous evaluation and improvement efforts. For a model of what this infrastructure can look like, consider the Australian Office of Impact Analysis (OIA), which investigates the impact of regulatory initiatives in practice. In so doing, it ensures that the regulation at issue is functioning as intended and continues to serve its desired outcomes.[22] On the private regulatory front, the International Social and Environmental Accreditation and Labeling (ISEAL) Alliance has a similar commitment. In particular, it works to ensure that its monitoring and evaluation programs constantly are re-evaluated based on clear definitions for the intended change an organization seeks, indicators that reflect success, and constant data collection that help test whether a program or rule is on the right path.[23] We can and should implement similar efforts here in Colorado.
* * *
We have important work to do to earn respect of the public and those subject to governmental regulation. To that end, it is important that we work hard both to adhere to best practices as well as re-evaluate the actual success of regulatory programs. In Colorado and nationally, there are some promising initial steps to build on, but also a lot of important work ahead. Thanks for your interest in and commitment to that work.
[1] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
[2] Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706 (2018).
[3] Id.
[4] Philip J. Weiser, Reexamining the Legacy of Dual Regulation: Reforming Dual Merger Review by the DOJ and the FCC, 61 FED. COMM. L.J. 167, 170 (2008).
[5] Reed E. Hundt & Gregory L. Rosston, Communications Policy for 2006 and Beyond, 58 FED. COMM. L.J. 1, 31 (2006).
[6] Philip J. Weiser, Institutional Design, FCC Reform, and the Hidden Side of the Administrative State, 61 Admin. L. Rev. 675, 691 (2009).
[7] Id.
[8] Exec. Order No. 12,291, 46 Fed. Reg. 13,193 (Feb. 17, 1981); Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
[9] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
[10] Loper Bright, 603 U.S.
[11] Philip Weiser, Att’y Gen., Colo, Dep’t of L., Health Care Policy in the Post-Chevron Age (Oct. 10, 2024).
[12] Chevron,467 U.S. at 866.
[13] Loper Bright, 603 U.S. at 456 (Kagan, J., dissenting).
[14] Skidmore v. Swift & Co., 323 U.S. 134 (1944).
[15] Id. at 140 (deference turns on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”); see also Loper Bright, 603 U.S. at 371.
[16] Loper Bright, 603 U.S. at 370 (quoting Skidmore, 323 U.S. at 140).
[17] Colo. Att’y Gen., Colorado Privacy Act (CPA), CPA Information (July 15, 2025).
[18] Id.
[19] Weiser, supra note 11.
[20] Philip J. Weiser, Entrepreneurial Administration, 97 B.U. L. Rev. 2011 (2017).
[21] Id.
[22] Off. of Impact Analysis, About, Australian Gov’t (opens new tab).