The 2015 legislative session is now into its second month.
Elected representatives from throughout the state have spent the past several
weeks debating literally hundreds of bills that are being worked through the
lawmaking process.
For the most part, the legislative process is transparent
in nature. It allows for citizens to weigh in on matters that will ultimately
affect aspects of their daily lives. Agendas for committee hearings held at the
capitol are made available to the public through the legislative website, www.oregonlegislature.gov, which
enables members of the general public to inform their senators and
representatives of their thoughts on the proposed bills. They can submit
written testimony, watch streaming footage of the meetings in real time, or
even make the trip to Salem to testify in person.
Deliberations in those committees are public in nature. The
legislators who vote to advance bills are on the record with their support or
opposition. The written testimony of the various citizens and interest groups
who testify on those measures can be viewed by anybody wishing to do so.
The fact of the matter is that the outcome of the floor
debates held in the House and Senate are almost always foregone conclusions.
Very few bills ever make it that far in the legislative process without having
enough votes for passage. However, members can further explain the rationale
for their votes during the floor discussions.
But the laws passed through the legislative process are
not the only ones that have the ability to regulate the conduct of individuals
and businesses.
Administrative rules adopted by state agencies have the
same legal authority as the statutes that are vetted and passed by elected representatives.
They can also be very broad and far-reaching, only being limited by their
statutory authorization.
The issue of administrative rules came up late last month
during a meeting of the Ways and Means General Government Subcommittee while reviewing
the Secretary of State’s budgets. I asked the State Archivist about the depth
and scope of Oregon’s administrative rules. She responded offhand that there is
no easy way to obtain that information. That fact should be of great concern to
Oregonians.
At a follow-up meeting in my office, I asked the State
Archivist to estimate the total number of Oregon administrative rules and to
provide a breakdown on rules filed by agencies with input from a Rules Advisory
Committee (RAC), rules filed by agencies that allowed for public hearings and
rules made with only public comment periods.
In order to provide my office with an estimate, she
examined almost half of the agencies that have administrative rules in place.
She then added up the number of administrative rules that those agencies have
and divided that number, by the number of agencies she studied to compute the
average number of rules per agency. That average was then multiplied by 180,
which is the total number of state agencies and boards with rules. That
calculation produced a grand estimate of 43,000 Oregon administrative rules
that are currently in place.
The response to my inquiry is now public record, and can
be viewed here.
We discovered that there are 11,108
permanent rules, 3,166 temporary rules and 1,388 notices that were filed during
the past two years. That totals and astounding 15,662 administrative actions. Of
the 1,388 notices filed, 603 indicated that they used a RAC and 912 notices
filed included at least one public hearing. All of the 11,108 permanent rules
filed allowed for public comment; however, none of the 3,166 temporary rules
required any input from the public.
To put those figures into perspective, there are 730 days
in a two-year biennium. If weekends and holidays are excluded, the biennium
includes about 500 total business days. This means that there are just over 30
total administrative actions taken for every business day of the year, about
one every fifteen minutes.
Keeping track of all of these rules and regulations is
virtually impossible for legislators and is especially difficult for the
average citizen or small business owner. It is now nearly impossible to determine if we
are in compliance with all of the myriad Oregon administrative rules.
As you can see, the processes in place for proposing and
passing those rules are much different than those for creating statutes in the
Legislature. The biggest difference is that there is nowhere near the same
amount of accountability to the public in the rule-making process. Nevertheless, the end result is virtually the
same because both statutes and administrative rules carry the full force of the
law.
Citizens who are unhappy about how their elected officials
are voting on bills have the option of exercising their rights at the ballot
box. They are afforded the opportunity to unseat and replace representatives
every two years and senators every four years. That is a critical component of
the checks and balances built into our system of government.
The administrative rule process generally does allow for
public input. Notices of proposed rulemaking are publicized, and citizens may
submit comments for consideration. Unfortunately, agencies are under no
obligation to take action on comments or testimony submitted by the public. Further,
agencies are authorized to create temporary administrative rules without any
public input. These rules also that have the full power of Oregon law for up to
180 days and can be renewed by the agencies.
No meaningful legislative oversight for the rulemaking
process currently exists. Repeated legislative attempts to establish such
oversight has met with fierce and effective opposition from the executive
branch.
It should come as no surprise that the process for
creating administrative rules doesn’t always work as it is intended to serve
the public.
Last year, it came to my attention that the Oregon Water
Resources Department (OWRD) was planning to adopt a series of administrative
rules directly impacting irrigators in the Upper Klamath Basin. While the
agency had followed the legal procedure for notification of rulemaking, no local
elected officials or affected citizens were aware of the hearing that was
scheduled to take place in Klamath Falls that same day!
My office was able to contact those officials and local
media outlets to alert them of what was about to take place. This frustrating set
of circumstances prompted me, Rep. Gail Whitsett (R-Klamath Falls) and Rep. Sal
Esquivel (R-Medford) to draft House
Bill 2497. Our purpose is to help prevent such a situation from occurring
again.
The bill requires a natural resource agency that intends
to adopt, amend or repeal a rule that will affect the activities of persons in
a particular legislative district or geographic area to provide notice of its
action to the members of the Legislature who represent those districts at least
49 days prior to the effective date of that action. This very simple proposal
will go a long way towards providing the public with more opportunities to
influence the adoption of administrative rules that could alter the way they
conduct their business or personal affairs.
A public hearing is scheduled for HB 2497 in the House
Agriculture and Natural Resources Committee on Tuesday, March 10. It is my hope
that this very important bill will make its way through the legislative process
and become law.
Our Founding Fathers gave to us a unique system of
government that has served Americans well for more than two centuries. The
freedoms we have enjoyed as a result of our Constitutional republic helped
create the greatest prosperity in the history of mankind.
That prosperity is now being undermined by the broad
rulemaking authority granted to agencies through the passage of laws such as Senate
Bill 324, the Low Carbon Fuel Standard, and House
Bill 2177, the automatic voter registration bill.
Voters will ultimately have an opportunity to determine
their willingness to continue to be represented by legislators that support
such bills. However, the rules that will be adopted by state agencies to
implement those laws will never be subject to the same level of scrutiny or
accountability.
We believe that HB 2497 is a small step in the right
direction for those of us who believe in the principles of limited government
and the rule of law that was provided to us through the documents that set the
foundation of our great nation.
Please remember--If we do not stand up for rural Oregon, no one will.
Best Regards,
Doug
Senate District 28
Email: Sen.DougWhitsett@state.or.us I Phone: 503-986-1728
Address: 900 Court St NE, S-311, Salem, OR, 97301
Website: http://www.oregonlegislature.gov/whitsett
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