Idaho Attorney General Lawrence Wasden makes several preposterous allegations in his recent opinion opposing HJR 5, a constitutional amendment on the November ballot. In brief, HJR 5 would cement in the state constitution the ability of the Legislature to reject agency regulations.
Mind you, Wasden’s opposition to HJR 5 isn’t terribly surprising: His own office is subject to the Legislature’s regulatory scrutiny, a fact he avoids sharing in his op-ed. Additionally, the attorney general places his faith in agencies, which he wrote, “often make rules based upon cultivated expertise within their respective areas designed to administer a collective benefit.” It’s important to note, in most agencies, Wasden’s deputies write proposed agency rules.
Wasden is making a case that the Legislature shouldn’t have any say whatsoever in reviewing agency regulations. And that argument also supposes that agencies were probably correct in recent years when they decided, among other things, to mandate the specific hours businesses are to be open, the number of drinks bars are to serve each week, and to impose regulatory fee increases in the middle of a recession.
Fortunately, your state lawmakers disagreed and had the authority to block such regulations. That’s an authority that exists through court interpretation. Now, HJR 5 merely seeks to cement that regulatory review process -- whereby the Legislature has the authority to review agency decisions/directives/rules and regulations -- in the state constitution.
Wasden says voters should be wary of HJR 5 because they rejected the same in 2014. Absolutely false. Voters were presented with a similar proposal. However, critics of the failed 2014 version helped write the 2016 version, which voters find on this November’s ballot. The 2016 version is a sizable improvement.
Wasden also contends that the constitutional amendment will lead to special interests having more control over regulations, because they’ll ask lawmakers to “overturn the open negotiated process of rulemaking by hiring a lobbyist, who can then influence the Legislature to reject rules based on narrow lobbied interests.”
Again, what Wasden doesn’t tell you is that lobbyists are often invited to the table early to participate in negotiated rulemaking. Why? Because their clients might be impacted by a proposed agency regulation. And, indeed, if that agency proceeds forward with an ill-conceived regulation, our Legislature can veto it. That said, HJR 5 simply puts into law that which the courts have already approved.
This system of checks and balances is not perfect, but it is one that is considered among the best in the country, is the envy of other states, and it underscores the principles for accountable government. On November 8, if voters approve HJR 5, they will have secured the Legislature’s right to review and possibly reject bad agency regulations.