A proposed amendment to the Arkansas Constitution would require legislative approval of rules passed by administrative agencies in Arkansas. The resolution, SJR7, has been championed by incoming Senate President Pro Tem Jonathan Dismang. It represents a dramatic shift in power in governance, away from unchecked regulatory authority towards democratic accountability.
If ratified by the voters in next year’s general election, this proposed constitutional amendment would require a legislative committee to approve new rules and regulations passed by state administrative agencies (i.e. the Game and Fish Commission, Department of Health Services, etc.). At the federal level, we have seen disastrous results from comparable agencies overstepping their authority — think IRS or EPA. States have run into problems as well, with administrative agencies (run by unaccountable bureaucrats) passing their own rules and imposing fines.
In the 1940s, California created “redevelopment agencies” that were given “extraordinary powers.” Among those powers is the power to “assemble property for sale to private parties and…use eminent domain if necessary to acquire private property that they want to sell, often at a discount, to a private developer.” Perhaps I don’t need to explain why this is a serious problem. Fortunately, Arkansas has been somewhat spared from California-style administrative tyranny, but it’s never a bad idea to be forward looking and, since the tendency of government is to acquire more power, preventive measures should be taken. SJR7 should be seen as one such preventive measure that will allow the legislature — made up of elected officials, not lifetime bureaucrats — to exercise oversight over administrative agencies.
In an interview, Senator Dismang told me that while there are no glaring examples of administrative abuses at this point in Arkansas, some agencies have been feeling their oats:
There’s multiple instances, most of them would fall under ADEQ. That’s kind of an area where new rules and regulations are created without utilizing legislation. Game and Fish would also be another example of an agency that is utilizing laws to promulgate rules without any further oversight. The one thing we want to do is make sure legislative intent is followed. A lot of times we allow the court system to determine that, but I think the best thing for us to do is to have that ability in place to be able to approve of the rules and regs that are actually a product of the legislation we create.
Speaking more specifically on SJR7, Dismang emphasized that the amendment would give the legislature final say over new rules and regulations before they could go into effect:
Any agency can go back and create a rule. It could be a law that was passed in 1973 and we could have a new rule or reg promulgated from that based on their interpretation of what they’re allowed to do. That was never really the intent of the legislative body in passing that, but it does happen. Even for instance, there are some pretty sweeping changes in rules and regs with DHS right now. This would give us the ability to give final approval to whatever they put out.
Dismang said there is a review process already in place, but suggestions made by the review committee are non-binding. SJR7 would give the legislature some actual authority to intervene in the rulemaking process, which is a step towards more accountable government:
We have a process right now, it’s call the review process. They come before the Rules & Reg Committee for a review recommendation. It’s a motion to review is all you do. But even if we make a motion to not review, the agency is under no obligation to not move forward. They don’t have to abide by what we do or what we say in that review process in any way. There’s no teeth in that.
I can think back, we have a law on the books right now that, I think, a contractor can’t perform work over $2,000 without a contractor’s license. Well that agency went through and initially developed some very stiff penalties for individuals that did not have a contractor’s license. We were able to push back through committee and scale those down, but in the end I don’t think it was to the satisfaction to the committee as a whole. It’s just having that last bit of proper oversight before they implement.
Dismang said he wasn’t sure if there were any other states that have similar approval powers, but cited federal agencies as an example of the need for oversight, reiterating again the importance of preventative reform:
What comes to mind is the overreach that’s occurred in Washington. One of the biggest gripes you have from Congressmen and Senators is that they kind of lose the football in the rulemaking process just like we do here in the state. They have agencies that are going well beyond the intent of legislation to develop rules and regs. We’re just making sure we don’t get to that point. It allows the legislative body to have the final say which I think is the appropriate thing for us to have.
Having been approved by the legislature, SJR7 will appear on the 2014 general election ballot for consideration of the voters.