[Senate Hearing 115-188]
[From the U.S. Government Publishing Office]








                                                        S. Hrg. 115-188

   IMPROVING OVERSIGHT OF THE REGULATORY PROCESS: LESSONS FROM STATE 
                              LEGISLATURES

=======================================================================

                                HEARING

                               before the

                            SUBCOMMITTEE ON
               REGULATORY AFFAIRS AND FEDERAL MANAGEMENT

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 26, 2017

                               __________

                   Available via http://www.fdsys.gov

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs



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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
               Margaret E. Daum, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk


       SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL MANAGEMENT

                   JAMES LANKFORD, Oklahoma, Chairman
JOHN MCCAIN, Arizona                 HEIDI HEITKAMP, North Dakota
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California
                     John Cuaderes, Staff Director
                          James Mann, Counsel
                  Eric Bursch, Minority Staff Director
           Anthony Papian, Minority Professional Staff Member
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Lankford.............................................     1
    Senator Heitkamp.............................................     2
    Senator Carper...............................................    16
Prepared statement:
    Senator Lankford.............................................    27
    Senator Heitkamp.............................................    29

                               WITNESSES
                       Thursday, October 26, 2017

Hon. Scott Bedke, Speaker of the House of Representatives, State 
  of Idaho.......................................................     4
Hon. Joshua A. Boschee, Member of the House of Represenatives, 
  Legislative Assembly, State of North Dakota....................     5
Hon. Arthur O'Neill, Member of the House of Representatives, 
  General Assembly, State of Connecticut.........................     9

                     Alphabetical List of Witnesses

Bedke, Hon. Scott:
    Testimony....................................................     4
    Prepared statement...........................................    30
Boschee, Hon. Joshua:
    Testimony....................................................     5
    Prepared statement with attachment...........................    34
O'Neill, Hon. Arthur:
    Testimony....................................................     9
    Prepared statement with attachments..........................    47

 
                       IMPROVING OVERSIGHT OF THE
          REGULATORY PROCESS: LESSONS FROM STATE LEGISLATURES

                              ----------                              


                       THURSDAY, OCTOBER 26, 2017

                                 U.S. Senate,      
                        Subcommittee on Regulatory,        
                      Affairs and Federal Management,      
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room 342, Dirksen Senate Office Building, Hon. James Lankford, 
Chairman of the Subcommittee, presiding.
    Present: Senators Lankford, Daines, Heitkamp, Carper, 
Hassan, and Harris

            OPENING STATEMENT OF SENATOR LANKFORD\1\

    Senator Lankford. Good morning. Welcome to today's 
Subcommittee hearing entitled Improving Oversight of the 
Regulatory Process: Lessons from State Legislatures. This 
hearing provides an opportunity to do something Washington 
should do more often--listen. Listen and try to learn to see 
what States do well, especially when it pertains to 
regulations.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Lankford appears in the 
Appendix on page 27.
---------------------------------------------------------------------------
    Today we have three States that have found effective ways 
for their legislatures to provide oversight over State 
rulemaking agencies. Strong and effective legislative oversight 
does not mean stopping agencies from issuing rules and it does 
not mean we must have an adversarial relationship with the 
regulators. When regulators do not trust or work with a 
legislature, they push the bounds of their authority. This 
leads to lawsuits, challenging nearly every aspect of 
rulemaking, which draws out the process, creating uncertainty 
for individuals and our communities.
    On the other hand, as we will hear today, a cooperative 
relationship between agencies and the legislative body leads to 
more effective and efficient rules that follow legislative 
intent and incorporate the views of regulated parties. 
Regulators working closely with the legislature, results in 
regulations that face far fewer lawsuits from stakeholders.
    The onus to improve the rulemaking process is not just on 
the regulators. As legislators, we must fulfill our 
responsibility to actually legislate. For decades, we have 
fallen into the habit of passing legislation that is vague on 
the details and tell the agencies to do the hard work and 
figure out how to be able to apply it. Politically, this 
insulates the legislature, and we can say that we did our part 
but the agency messed up the implementation. It is not how 
government is supposed to work.
    Many States, like Connecticut, North Dakota, actively 
review State regulations to ensure they follow legislative 
intent. Other States like Idaho codify State regulations after 
a year or they expire. This causes the legislature to take 
responsibility for not only the bills they pass but also for 
the regulations that are a direct result of those lost.
    When we talk about regulatory reform, I frequently hear 
assertions that changes to our system will result in the 
ossification of the rulemaking process, clog the courts, 
prevent agencies from issuing needed regulations, or create 
significant risks to health, safety, or the environment. But 
many of the ideas that we have considered in Committee are 
already being used in success on the State level, and I think 
we can learn a lot today from this, so I am looking forward to 
the conversation.
    With that I would recognize the Ranking Member, Heidi 
Heitkamp, for her opening remarks.

            OPENING STATEMENT OF SENATOR HEITKAMP\1\

    Senator Heitkamp. Thank you, Chairman Lankford. First I 
would like to recognize a great friend and a great legislator, 
Joshua Boschee, who is from my home State of North Dakota. I 
have known Josh for a long time, fairly long time, and while he 
is a tremendous legislator he is an even better person, and I 
will tell you one of the finest North Dakota could send here. 
So thanks so much, Josh, for making the trip. He is someone who 
does not just talk about making things better. He rolls up his 
sleeves and goes to work, and I am glad that he can be here 
today to talk about how North Dakota does things right there 
back home.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Heitkamp appears in the 
Appendix on page 29.
---------------------------------------------------------------------------
    So over the past 3 years we have been leading this 
Committee, we have spent a lot of time examining the regulatory 
process, from the basic framework of the rulemaking process to 
the doctrines that are applied in court to the nitty-gritty of 
how decisions are made on an agency level. From these 
examinations legislators have flowed--legislation has flowed, 
trying to adopt different ideas that have been discussed in 
those hearings.
    What we have not done enough of is look beyond the process 
in Washington. This hearing is a great way to learn about the 
activities of our partners in governance, on the States, to 
learn about how they have tackled many of the same questions 
that we have considered in this Committee, and to basically let 
the 50 laboratories of government work and inform some of the 
practices that we do right here.
    If anyone has been following this Committee, they know that 
frequently I ask about the intersection between Federal 
regulation and State regulation, because a lot of challenges 
that we have here, for overregulation, are duplicative 
regulation, or inconsistent regulation is really that push 
between State and local regulation and Federal regulation. And 
a lot of us believe that if the State is already protecting 
public health and safety, that that is the level at which those 
institutions are most accountable.
    And so we definitely want to hear not only your opinion 
about what you do but maybe some of the frustration about the 
duplication that you see in regulatory effort with Federal 
regulation.
    And so with that, Mr. Chairman, congratulations. This is a 
great opportunity for us to learn a lot more about how things 
could work better and how we could work better with State 
regulators.
    Senator Lankford. That is great. Thank you. At this time we 
will proceed with testimony from our witnesses. First up we 
have Mr. Scott Bedke. He is the Speaker of the Idaho House of 
Representatives, a position that he has held since 2012. He is 
serving his ninth term in the Idaho House, representing the 
27th District. Speaker Bedke is a fourth-generation rancher 
from Oakley, Idaho.
    Following him will be Mr. Joshua Boschee, who is 
representing North Dakota's 44th District in the North Dakota 
House of Representatives since 2013. He serves on the 
Government Finance Committee, Workers' Compensation Review 
Committee, and Administrative Rules Committee. Representative 
Boschee is a resident of Fargo, North Dakota, and I fully 
expect to keep a stroke count of how many times I hear, between 
the two of you, ``oh yes, you betcha'' today. [Laughter.]
    So we will see if we can increase the number of times on 
that.
    Senator Heitkamp. Ya.
    Senator Lankford. Third up will be Mr. Arthur O'Neill. He 
is representing Connecticut's 69th District in the Connecticut 
House of Representatives since 1988. He has served as the Chair 
of the Regulations Review Committee as well as the Ranking 
Member of the House Appropriations and Judiciary Committees. 
Representative O'Neill is a resident of Southbury, Connecticut. 
Thank you for being here as well.
    It is a tradition of this Committee and the custom to be 
able to swear in all witnesses that appear before us, so I 
would ask all three of you to please stand and raise your right 
hand.
    Do you swear the testimony you will give before this 
Subcommittee will be the truth, the whole truth, and nothing 
but the truth, so help you, God?
    Mr. Bedke. Yes.
    Mr. Boschee. Yes.
    Mr. O'Neill. Yes.
    Senator Lankford. Thank you. You may be seated. Let the 
record reflect all the witnesses have answered in the 
affirmative.
    We do have a timing system. You can see a clock in front of 
you. As you start that will count down 5 minutes. We are not 
going to be strict on that but we do want to leave as much time 
as we can for questions, as Senator Heitkamp and I will pummel 
you with questions as soon as you finish up your oral 
testimony.
    So, Speaker Bedke, you are up first.

TESTIMONY OF THE HONORABLE SCOTT BEDKE,\1\ SPEAKER OF THE HOUSE 
               OF REPRESENTATIVES, STATE OF IDAHO

    Mr. Bedke. Thank you, Senator, and Senator Heitkamp. Thank 
you for this opportunity to testify today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Bedke appears in the Appendix on 
page 30.
---------------------------------------------------------------------------
    Legislative review of Executive Branch rules is a topic of 
great and recent interest in Idaho. Over the past 25 years or 
so, the Idaho Legislature's authority to review Executive 
Branch rules has been the subject of Supreme Court cases and no 
less than two proposed constitutional amendments placed before 
the voters of our State. Within the past year, at the 2016 
general election, the voters of Idaho approved a constitutional 
amendment providing that the legislature has the constitutional 
authority to review and approve or reject Executive Branch 
rules. As a result, the Idaho Legislature now has the 
constitutional authority to ensure Executive Branch rules are 
written in a manner consistent with the legislature's intent.
    In Idaho, the legislature's authority to review and approve 
or reject Executive Branch rules has been in place in one form 
or another since 1969. In 1978, the legislature passed a 
statute authorizing legislative subcommittees to meet in an 
advisory fashion to either accept or reject administrative 
rules. This advisory process evolved over time through statute 
to provide a more formal and enhanced legislative role. This 
statutory evolution provided the legislature with authority to 
review administrative rules and, upon finding a rule 
inconsistent with the legislative intent to reject that rule 
through Concurrent Resolution. In Idaho, Concurrent Resolutions 
require approval of both the House and the Senate and are not 
subject to approval of the Governor.
    In 1990, the legislature's authority to review and reject 
administrative rules was upheld by the Idaho State Supreme 
Court in a closely decided decision, with a 3-2 decision. The 
court reasoned that the Executive Branch's authority to write 
administrative rules is a power delegated to the Executive 
Branch by the legislature. As our Supreme Court has held 
repeatedly, only the legislature can make law.
    The Idaho Legislature takes its responsibility in this area 
very seriously. Each legislative session starts with an in-
depth review of the rules proposed in the preceding year. Each 
legislative committee reviews the rules germane to its area of 
expertise and makes recommendations to the House and Senate as 
to whether those rules should be approved or rejected.
    The legislature has used its authority to reject rules 
judiciously. Over the past four decades, the legislature has 
reviewed more than 5,000 administrative rules and has rejected 
approximately 300, or approximately 6 percent. Often a rejected 
rule is proposed again by the same Executive Branch agency the 
next year, but with the changes necessary to make the rule 
consistent with the legislative intent of the statute. In 
Idaho's approach to this manner, the legislature's review of 
rules does not hamper Executive Branch authority. It only 
assures that State agencies are following the law in the 
rulemaking.
    The legislature acknowledges that at times Executive Branch 
agencies may not understand or appreciate the real-life impacts 
of their proposed rules, so legislative committees and their 
elected officials listen to input from everyday citizens as to 
how a new rule may affect them. To reiterate, the time we take 
during this process is to listen to our citizens, and it has 
not resulted in sweeping rejection of administrative rules. It 
has, however, resulted in selective rejection of rules, 
constructive dialogue with the Executive Branch, and, 
ultimately, we believe administrative rules that are more 
closely aligned with the intent of the underlying statute.
    In order to safeguard the legislature's authority to review 
administrative rules, and in light of the close Supreme Court 
decision, the legislature chose to put a constitutional 
amendment before Idaho voters. The amendment placed the 
legislature's authority to review rules in the State's 
constitution. Recognizing the good government quality of this 
proposed amendment in the 2016 general election, a comfortable 
majority of citizens voted in favor of the constitutional 
amendment.
    In summation, we believe that allowing Executive Branch 
agencies the unreviewed authority to promulgate and implement 
administrative rules compromises the legislature's authority to 
make law and, consequently, strengthens the Executive Branch at 
the expense of the Legislative Branch. The passage of the 
constitutional amendment strengthened and more clearly defined 
the legislature's authority to review and reject Executive 
Branch rules. We believe that this is just good government.
    Thank you, and I look forward to your questions and our 
dialogue.
    Senator Lankford. Thank you, Mr. Speaker. Mr. Boschee.

TESTIMONY OF THE HONORABLE JOSHUA A. BOSCHEE,\1\ MEMBER OF THE 
HOUSE OF REPRESENTATIVES, LEGISLATIVE ASSEMBLY, STATE OF NORTH 
                             DAKOTA

    Mr. Boschee. It is an honor to be with you all this morning 
to talk about the administrative rules process in North Dakota 
and its relationship with the legislative assembly. As part of 
my testimony, I have provided a background memorandum prepared 
by our staff that was used as an introductory resource for our 
new members this past September. You will find that much of the 
technical aspects of my testimony are pulled directly from that 
memorandum.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Boschee appears in the Appendix 
on page 34.
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    During my time on the Administrative Rules Committee, I 
have found the process to be one that is very collaborative 
between administrative agencies, the regulated community, the 
public, and legislators. North Dakota has a cherished history 
of providing access and transparency to our State citizens when 
it comes to developing policies at all levels of government and 
authority. As part-time legislators who create, amend, and 
rescind statutes only 80 days out of each biennium, we rely on 
our State agencies to develop the policies and procedures 
required to enact the legislative changes made during each 
assembly.
    Our State agencies, commissions, and regulatory boards are 
comprised of employees, elected officials, and appointed 
citizens who provide technical expertise and real-world 
experiences that inform the rules being developed throughout 
the interim. Whether responding to a policy change made by the 
assembly, a new Federal regulation, or the dramatically 
changing economy North Dakota is experiencing, the 
administrative rules process continues to be one that allows 
good balance of legislative oversight and professional, 
executive independence.
    In North Dakota, the Administrative Rules Committee is 
appointed, each biennium, with membership of the committee 
including at least one of the members who served during the 
most recently completed regular session of the assembly from 
each of the standing committees from either the House or the 
Senate. The committee meets quarterly to review administrative 
rules proposed by State agencies, as well as boards and 
commissions that have authority to regulate activities within 
the State.
    The committee is responsible for studying and reviewing 
administrative rules and related statutes to determine one of 
three things: whether administrative agencies are properly 
implementing legislative purpose and intent; whether there is 
dissatisfaction with administrative rules or with statutes 
relating to administrative rules; or whether there are unclear 
or ambiguous statutes relating to administrative rules.
    All rule changes, including a creation, amendment, or 
repeal, made to implement a statutory change, must be adopted 
and filed with legislative councils within 9 months of the 
effective date of the statutory change. If an agency needs 
additional time for the rule change, a request may be made to 
the committee and the committee may extend that time.
    Additionally, the committee has the authority to establish 
standard procedures for administrative agency compliance, 
whether it is notice of requirements for proposed rulemaking, 
establishing a procedure to distribute administrative agency 
filings, and to receive notice of appeal.
    A key component to our State's rulemaking process includes 
the Attorneys General (AG) review of agency rules. The AG may 
not approve a rule as to legality if the rule exceeds the 
statutory authority of the agency or the rule is written in a 
manner that is not concise or easily understandable, or 
procedural requirements for adopting the rules are not 
substantially met.
    Agencies have the authority, with approval of the Governor, 
to adopt rules on an emergency basis, because of an imminent 
peril to public health, safety, or welfare; or because a delay 
is likely to cause loss of revenue appropriated to support a 
duty imposed upon an agency; or when reasonably necessary to 
avoid the delayed in implementing an appropriations measure; or 
when necessary to meet a mandate by Federal Government.
    An emergency rule may be declared effective no earlier than 
the date of filing notice of rulemaking with the legislative 
council. An emergency rule becomes ineffective if it is not 
adopted as a final rule, through the formal administrative 
rules process, within 180 days after its declared effective 
date. An agency making emergency rules is required to attempt 
to provide notice of the emergency rules to persons the agency 
can reasonably be expected to believe may have a substantial 
interest in the rules, as well as notification of the Chairman 
of the Administrative Rules Committee.
    North Dakota's administrative rules process began in 1941, 
as the first State to adopt an Administrative Procedure Act 
(APA), which was based partly on an earlier tentative draft of 
what became the 1946 Model State Administrative Procedure Act 
approved by the Commission on Uniform State Laws.
    Before 1977, agencies were authorized to adopt 
administrative rules, but there was no compilation or central 
source of these rules. During the 1977 session, the assembly 
enacted statute which requires the legislative council to 
compile those rules through a code. Two years later, in 1979, 
the legislative assembly enacted statutes providing for 
legislative review. And finally, in 1981, the legislative 
assembly authorized the committee to make formal objections to 
agency rules. If the committee objects to a rule because the 
committee determines the rule to be unreasonable, arbitrary, 
capricious, or beyond the authority delegated to the adopting 
agency, the committee may file the objection in certified form 
with the legislative council, with the burden falling upon the 
administrative agency to determine whether or not it meets 
statutory regulation.
    In 1995, the legislative assembly enacted statutory 
authority for the committee to void all or any portion of the 
administrative rules on any of the following grounds: (a) the 
absence of statutory authority; (b) emergency relating to 
public health, safety, or welfare; (c) a failure to comply with 
express legislative intent or to substantially meet the 
procedural requirements of our century code, chapter 28, 
regarding the adoption of rules; (d) a conflict with State law; 
(e) arbitrariness or capriciousness; and (f) a failure to make 
a written record of its consideration or written and oral 
submissions respecting the rule during the hearing process and 
comment period.
    During the 23 years the committee has had the authority to 
void rules, only eight rules have been voided.
    Based on my experience, when the committee is considering 
the action of voiding rules, our practice is that we will table 
the section of rule of concern until the next meeting to allow 
the agency and any of the concerned public, whether it is 
individual citizens or the regulated community, ample time 
before the next meeting to come to an amicable agreement. This 
is rare and often comes up when the regulated community 
impacted by the new rules has strong objections that fall under 
one of the previously Stated grounds. It has been my experience 
that the agency and concerned stakeholder often find a 
resolution to the rules that are then presented to the next 
committee meeting.
    If the committee finds a rule to be void, the legislative 
council has to provide written notice to Legislative 
Management. Within 14 days of receipt of the management, the 
adopting agency may file a petition with the Chairperson of 
Legislative Management for review by our legislative management 
for final decision. If the agency does not file a petition, the 
rule becomes void on the 15th day after adopting agency 
received notice from council. If, within 60 days after receipt 
of the petition, the adopting agency and Legislative Management 
has not disapproved the finding, the rule is found void.
    In 2005, the legislative assembly enacted a bill providing 
that except for emergency rules, administrative rules do not 
become effective until after they have been reviewed by the 
Administrative Rules Committee. And in 2011, a final change was 
made that if an agency representative does not appear for a 
scheduled meeting, the rules will be held over to the next 
meeting.
    Since 2015, each adopting agency has been required to 
provide proof to the committee with written information 
demonstrating that the agency complied with the processes 
related to notice of hearing, as well as written statements for 
people that objected, either orally or through written form.
    Statute does allow the committee to change a rule after 
consideration of rules by the committee if the agency and the 
committee agree to rule changes is necessary to address any of 
the considerations for which the committee may find a rule to 
be void. This allows an agency to change an administrative rule 
when the committee expresses concern, and in those 
circumstances the agency is not required to commence a new 
procedure. If a rule change is agreed on by the committee and 
the agency, the rule must be reconsidered. If neither party 
objects to it, the rule has the opportunity to become effective 
as scheduled.
    Because the legislative assembly recognized that there are 
constitutional questions about the Administrative Rules 
Committee voiding rules, an alternative amendment is on the 
books which will take effect if the State Supreme Court rules 
the authority to void rules is unconstitutional. The 
alternative amendment is the same in all respects as the 
amendment allowing the committee to void rules but the 
alternative, rather, provides an opportunity to suspend the 
rules until the next legislative session, for approval by the 
legislative assembly.
    The Administrative Code, which contains all rules adopted 
by agencies, are subject to the Agencies Practices Act. It is 
published by the legislative council and has 129 titles. In 
North Dakota, 96 of those titles contain rules of 
administrative agencies with 16 agencies voluntarily publishing 
their rules within our code. The code is distributed free to 
each county auditor, to the Supreme Court justices, district 
court judges, and certain agencies, as well as can be accessed 
online through our legislative website for free by the 
citizens.
    Based on our nearly 80-year evolution of the administrative 
rules process in North Dakota, I am confident that our process 
is one that works well for our State. Changes have been made 
gradually over time and have been implemented with little 
friction between the agencies that are developing the rules and 
the legislative assembly. The only concern I have with our 
State's process is ensuring that we continue to provide ample 
notification and time for citizens to participate in the 
process, as subscriptions to print newspapers decline, which is 
our formal process of notice, and we become more dependent on 
electronic means of official posting.
    This concludes my prepared testimony and I am happy to try 
and answer any questions the Committee may have.
    Senator Lankford. Thank you. Representative O'Neill.

  TESTIMONY OF THE HONORABLE ARTHUR O'NEILL,\1\ MEMBER OF THE 
     HOUSE OF REPRESENTATIVES, GENERAL ASSEMBLY, STATE OF 
                          CONNECTICUT

    Mr. O'Neill. Thank you, Mr. Chairman, and good morning 
Ranking Member Heitkamp, Chairman, and Members of the 
Committee. Thank you for the invitation to testify.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. O'Neill appears in the Appendix 
on page 47.
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    I am a 27-year veteran of the Legislative Regulations 
Review Committee (LRRC) of Connecticut and have previously 
served 6 years as co-Chairman of the committee.
    The Connecticut General Assembly first began reviewing 
regulations in 1945. The Secretary of State was required to 
submit to each General Assembly all the regulations promulgated 
during the preceding biennium for its study, legislature 
meeting only biennially. Any regulation which the General 
Assembly disapproved was void and not reissued.
    In 1963, the first Regulations Review Committee was 
established by statute. This committee was and is a bicameral, 
bipartisan committee. It met during the interim between the 
sessions and could only disapprove regulations that were 
already in effect. This approval voided the regulation unless 
the General Assembly overrode the committee's action at its 
next session, but the General Assembly was not required to act 
on voided regulations.
    In 1971, the current Legislative Regulations Review 
Committee was created pursuant to the Uniform Administrative 
Procedures Act (UAPA), which we adopted. Under the 1971 law, 
the committee was authorized to review proposed regulations. 
The committee's disapproval of a regulation in 1976 led to a 
lawsuit challenging the legislature's role on constitutional 
grounds, alleging a breach of the separation of powers 
principle. Connecticut Superior Court ruled that the 
committee's activity was unconstitutional. The Supreme Court 
overturned that lower court decision but they did so on 
technical grounds, leaving the issue of constitutionality 
unresolved until 1982, when a constitutional amendment, 
approved by the electorate, became effective and confirmed the 
legislature's authority to consider and disapprove 
administrative regulations.
    The Regulation Review Committee was established to ensure 
proper legislative review of proposed agency regulations. 
Administrative regulations have the force of law; therefore, 
closer scrutiny and control by the Legislative Branch is 
clearly in the public interest to ensure that regulations do 
not contravene legislative intent.
    The committee, which meets monthly, consists of 14 members, 
6 Senators and 8 House members. There are equal numbers of 
Republicans and Democrats. There are two co-chairs, a 
Republican and a Democrat, one from each chamber. Each term the 
co-chairs alternate, so the Senator becomes the member of the 
opposite party and the House member does the same thing. This 
is a system of subcommittees which usually consists of two 
members, a Republican and a Democrat from each chamber.
    The subcommittees are assigned to specific agencies. The 
subcommittees review, and if necessary, make changes to the 
regulations. The regulations and other required documents are 
provided to each committee member at least 1 month prior to the 
meeting at which the action is to be taken. Legal opinions and 
recommendations from our legal staff and fiscal analysis from 
our fiscal staff are provided to us 10 days before such 
meeting.
    The committee can take the following types of action: 
approve in whole or in part; approve with technical 
corrections; reject without prejudice; or disapprove. Approval 
in part allows the committee to make deletions. When deletions 
are made, sections or subsections are deleted, not individual 
words. The committee cannot add words to a regulation.
    Technical changes are sometimes needed to correct spelling, 
punctuation, statutory references, and matters of style. 
Frequently, regulations are rejected without prejudice for lack 
of statutory authority. Rejection without prejudice requires 
the agency to resubmit the regulation with appropriate 
corrections within either 35 or 65 days, depending on whether 
the regulation is mandatory or permissive. There is no limit to 
the number of times that a regulation can be rejected without 
prejudice.
    Disapproval is rare and signifies the committee's 
interpretation that the proposed regulation is without 
statutory basis. Disapproval requires the regulation to be sent 
to an appropriate committee of the legislature for 
consideration during the next legislative session. The General 
Assembly then has the option to sustain or reverse the 
Regulation Review Committee's action. Inaction by the 
legislature sustains the action of the committee.
    The committee meets as necessary to consider emergency 
regulations.
    The committee functions as intended. It is effective as a 
mechanism to protect the legislative intent from Executive 
Branch dilution or distortion. It provides an opportunity for 
individuals interested in or affected by a regulation to 
influence the process without the time and expense of 
litigation. The committee's bipartisan and bicameral structure 
enhances its effectiveness.
    Some agency staffers who must deal with the Regulations 
Review Committee do not want to deal with the committee and the 
additional process that we require. I consider that to be 
evidence of the effectiveness of the committee in defending the 
authority of the Legislative Branch.
    And I welcome your questions.
    Senator Lankford. Thank you, all three of you.
    I will recognize Ranking Member Heitkamp.
    Senator Heitkamp. This is always a challenge because there 
are two functions, right? There is the oversight function, 
which we, as legislators, all believe is absolutely critical, 
and there is not any of us who have ever been legislators who 
have not said, that is not what we intended. I do not know why 
they are doing it that way. I mean, it seemed clear when we 
passed it. Why is not it clear to them?
    But on the other side is this question of separation of 
powers, and whether, in fact, the Legislative Branch, being so 
critically involved and so strategically involved in regulatory 
analysis and potentially rewrite, that it flips over and 
results in a breach of that all-important separation of powers 
doctrine that is fundamental to State constitutions, 
fundamental to Federal constitutions.
    So I want to explore kind of that line, and both of you--
there is two of you who have basically said your States have 
confronted constitutional challenges, and the end result was a 
constitutional amendment in both cases--correct?--in the case 
of Idaho and Connecticut.
    Can you just explain to me the various constitutional 
provisions you did enact, whether they were tailored very 
narrowly or whether it weighed on the side of greater 
participation of the legislature in implementation of 
legislation, or whether they really just helped clarify what, 
in fact, was the oversight responsibility?
    And we will start with you, Representative Bedke.
    Mr. Bedke. We were very careful in drafting the words in 
the constitutional amendment. I kind of glossed over that we 
passed it on the second try. What was such old hat for the 
legislature, if you will, turned out to be not, so in 2014, the 
voters narrowly disapproved the constitutional amendment, but 
there was zero explanation there. Like I said, what seemed to 
be self-evident to us was obviously not to the general public.
    I headed up a statewide campaign to go, to all the 
newspapers and all the media statewide, and explain what we 
were doing. So we were very careful. We believed that the line 
that we did not want to cross was, we could accept or reject, 
and when we--and the word says ``in whole or in part,'' but 
we--but that ``in part'' mean subsections of the rule.
    So we stopped short of amending, we stopped short of the 
Meade v. Arnell case, upon which is the Idaho Supreme Court 
case which was the basis for all this, was clear, and we 
attempted to just codify that ruling and not overreach, because 
of all the reasons that you stated earlier. So we were very 
careful not to cross that line and we feel like we found the 
balance in there.
    Now, the Executive Branch, through the Governor, objected 
to--came out with a campaign of his own, as did the State 
attorney general, saying that the legislature was overreaching. 
But we were very careful to delineate that line and not 
overstep, and we believe that it has resulted in the dynamic 
give-and-take that there needs to be at the State level. When 
the regulated public comes into the committee to testify about 
how it is affecting them, then their advocates are their 
elected officials, not the Executive Branch agency--and I mean 
no disparagement to those that work there, but they are not 
elected to represent the regulated public.
    And so that insertion of having the elected officials usher 
that, the regulated public through the rules, which are laws, 
we believe holds us accountable as elected officials and gives 
the citizens a voice in the process, rather than just passing 
vague laws, passing it off to the Executive Branch, and wishing 
everybody good luck.
    Senator Heitkamp. Representative O'Neill, can you just 
explain kind of the constitutional development of your process?
    Mr. O'Neill. Sure. As I mentioned, we had a court case, 
Maloney v. Pac. The lower court said we were unconstitutional, 
what the committee did, and the supreme court overruled it, but 
as I said, on technical grounds. So the constitutionality issue 
was never really resolved by the supreme court. And so very 
shortly after that decision came down is when the 
constitutional amendment was passed by the legislature and 
voted for by the public.
    And what that did was say a couple of things, one of which 
was that we clearly had the right to delegate the lawmaking 
function if we chose to administrative agencies, and the second 
thing was we also have the power to review and, if need be, 
reject, disapprove the regulations that were adopted by the 
agency.
    It was a very short amendment. It was a broad grant of 
authority, really, to the legislature to pass laws to implement 
that constitutional provision. And so what it really did was, I 
believe, and it was intended to do at the time was to ratify 
the system that we had already created up until that point and 
to allow for its further development because it would be a 
clear constitutional basis for the committee to do what it was 
doing, and I think that is pretty much what it has done. I did 
not really change the way the committee was structured or the 
way the committee operated.
    Senator Heitkamp. Just legitimized it?
    Mr. O'Neill. I am sorry?
    Senator Heitkamp. Just legitimized it?
    Mr. O'Neill. Just legitimized it.
    Senator Heitkamp. I do not want to belabor this but I want 
to explain the challenges that we have, because there are 
Federal court cases that talk about so-called legislative 
vetoes, and whether that is, in fact, in violation of the 
continuum of responsibility under separation of powers. And so 
we do not have the luxury of a process that is very accessible 
for changing our Constitution. And so we have to make sure that 
when we are drawing those lines that we are staying well on the 
side of legitimate oversight in terms of our legislative 
process.
    I, as a State agency, had both, as attorney general and as 
tax commissioner, spent a fair amount of time in front of the 
Administrative Rules Committee, justifying the rules. I think 
that having that process--I will tell you honestly--made us 
much more conscious of our outreach, much more responsive to 
concerns, and maybe even resulted in amendments, because we 
knew we were going to have that level of immediate 
accountability, not just judicial review but legislative 
review. And so I am someone who has seen that process work, 
both as an agency head and as somebody who fully participated. 
And so with that said, we are trying to figure out how your 
lessons, which seem to work really well in your States, how 
that can be kind of adapted and adopted here.
    One thing I will remarks, it is interesting, in Idaho, I 
mean, you are basically a one-party government. I mean, there 
is not a very robust second party in Idaho. That is not true of 
Connecticut. Obviously, the Governor frequently can be, and is 
a Republican. I do not know when the last Democratic Governor 
you had, or Democratic Party legislature.
    Mr. O'Neill. It was Cecil Andrus, and so it has been a 
while, but there--of course, having a large majority party 
gives us the luxury of fighting amongst ourselves. And the 
Democrats, the minority in Idaho, they are not shrinking 
violets, and, if I may, most of our State constitutions--well, 
all of our State constitutions, with regard to the Article I 
provisions in the United States Constitution, I mean, they read 
very similarly. And, arguably, we have not let those Article I 
powers erode.
    Senator Heitkamp. Except in order to augment those Article 
I powers, you had to pass a constitutional amendment which is 
the point that I am trying to make, which is you may not have 
had, in Connecticut, you had a process, you were continuing 
that process under kind of color of authority. You clarified 
the authority and in your case, you responded to a critical and 
otherwise prohibitive court case. In North Dakota, we have not 
had that, in part, I think, because you have not reversed a lot 
of rules. And so we are just trying to figure it out.
    Representative O'Neill can you talk a little bit--and I 
know I am taking up some time, but I know there is not a big--
we are the nerds here. What can I tell you? Can you explain how 
you believe that the kind of party balance that you have in 
Connecticut affects your ability to do this work or whether you 
see challenges?
    Mr. O'Neill. Well, as I said, I think the bicameral, 
bipartisan nature of the committee helps it, because there is 
not the sense that it is one party that--let us say the 
majority party also is the majority party on the committee, 
would give the sense that this is basically coming from a 
partisan perspective. One of the little watch-words, phrases 
that we sometimes hear is that the other party is the 
opposition; the Executive Branch is the enemy. So we kind of--
and that is spoken by both Republicans and Democrats because we 
all have similar experiences in trying to deal with an 
Executive Branch agency that is being recalcitrant.
    So I think that we have a very partisan system. I mean, we 
do things on a very partisan basis in Connecticut. I am 
surprised that sometimes when I talk to people from other 
States that the partisanship is not as intense. We can be 
bipartisan as well. We have institutionalized it in some 
places, such as this committee, and it occasionally occurs that 
there will be a 7-7 split along party lines, but that is fairly 
rare.
    And so most of the time the committee speaks with one 
voice, it is a unanimous decision, and the Executive Branch, 
whether it is the Governor or some commissioner who is trying 
to do something, or the treasurer because we review their 
regulations as well, and so on, gets the impression, this is 
the entity that is speaking on behalf of the legislature, as an 
entity.
    Senator Heitkamp. Yes. I just want to make this point 
before I turn it over. I think some of the hesitation is this 
idea that the executive gets elected, different political 
party, and then the Legislative Branch, and, therefore, there 
is an automatic way that you can limit the ability of the 
executive, who is of a different political party, to actually 
make decisions that are executive in nature and really 
executive.
    What is interesting about your process--and we have been 
kind of chatting a little bit about it up here--is it really is 
about a legislative prerogative versus an executive 
prerogative, and building that support for the overreach in the 
executive. It is not a political thing. It really is a thing 
that challenges the relationship between legislative and 
executive, regardless of party.
    Mr. O'Neill. Yes. If I could just point out, in the years 
that I have been on the committee, we had a Democratic 
Governor, Bill O'Neill, when I first got on, Lowell Weicker, 
former United States Senator, was Governor as an independent 
for 4 years, we had Republicans and then now we have a 
Democratic Governor, and the relationship between the committee 
and the Executive Branch has been pretty much the same 
consistently throughout all those different people, with their 
different political perspective and so forth.
    Senator Lankford. So I have to ask the question, you said 
the relationships have been pretty consistent. Is that 
consistently bad or consistently good?
    Mr. O'Neill. I would say generally it has mirrored the 
relationship that the Governors have had with the legislature, 
in general.
    Senator Lankford. So if they are contentious about the 
legislature, it is a contentious committee as well?
    Mr. O'Neill. Correct.
    Senator Lankford. Because one of the challenges here in the 
conversation is, it is no grand secret to the world that we 
have this very adversarial relationship at times with 
regulatory bodies here, where a law comes out and then, in our 
situation, not uncommon to have a year or 2 or 3 years later 
the regulations that mirror up to that law come out, and they 
seem to be completely disconnected from the statute itself. And 
then you literally have a new legislature, that was not the one 
that voted on it. It is now past an election cycle, there is a 
new legislature there, and this hostile connection between was 
this the intent of Congress? Was this not the intent of 
Congress?
    So my question for all three of you, if you want to just 
give me a quick answer on it, has this process improved the 
dialogue between the regulators and the legislature or have you 
seen a difference on that, or you all have done it so long you 
have not seen a real difference on it?
    Mr. O'Neill. I think the dialogue has improved compared to 
what it used to be. Before this committee was really activated 
in the early 1960s, and even as late as the 1980s, there were a 
lot of secret regulations. Regulations were passed. You could 
not find them anywhere. The regulation books were years behind, 
in terms of publication, and they were very hard to get a hold 
of. They were not really even available in law libraries. Now 
we have everything online. I mean, that is obviously the 
electronic revolution that has facilitated that.
    But I think the committee has produced, and embedded into 
the process that the Executive Branch deals with, the idea that 
they are going to have to explain all of this in public and 
answer, and even to the point where agencies will withdraw 
regulation--I did not mention that but they can withdraw 
regulations up until the very moment we take it up, because 
they are afraid that it will get rejected, and that is 
considered to be a mark of dishonor, so to speak, within the 
agency.
    Senator Lankford. That would be very helpful. By the way, 
there are secret regulations in the Federal Government as well, 
among many, because it is a guidance, where a regulated entity, 
a business, whatever it may be, will contact their regulator 
and will say, ``I need some advice on this,'' and they will 
give them oral counsel on it but will not put it in writing, 
and that becomes a big issue as well, because then it depends 
on your regulator, what your regulations are.
    So I want to complete the two of you to able to ask the 
relationship between the regulators and their legislature.
    Mr. Boschee. In our State, in North Dakota, very similar to 
Idaho, it is a very strong one party across State agencies as 
well as within the legislature, and we are more representative 
of the fact that there is an equal--there is a proportionate 
number of Democrats on the committee as there are Republicans, 
based on the elected body.
    And so the relationship, I think, is pretty good and has 
continued to be good, and part of that, I think, is because as 
a legislative body we have implemented the system. We have 
created the rules of the administrative rules process. And so 
the administrative branch has to follow those rules and if they 
step out of line of the rules we have established, then we are 
in check there. And we have found great success there.
    Additionally, I think it is important to note North 
Dakota's legislators, we often see ourselves as citizens first, 
legislators second. And so we participate in the administrative 
rules process not only as a check but also, during that hearing 
process, often you will see in the notes legislators 
participating in the field hearings or the hearing information 
up front. And so because of that, we are engaged with our 
community and the guidelines, and I think the regulators then 
get a good feel, especially if it is something, for instance, 
that has to do with agriculture community, and there are 
legislators who practice agriculture but also represent those 
communities, are very involved on the front end, not just 
waiting on the back end for it.
    Senator Lankford. Speaking as someone who has practiced 
agriculture as well as a legislator. Speaker Bedke, do you want 
to jump in on this, and talk about their relationships?
    Mr. Bedke. Yes, I do. As was said, our system it mirrors 
North Dakota's. And so, there is proportional representation on 
these committees. These actually are the standing committees 
that break themselves out into subcommittees, because all of 
the rules are reviewed, and most of them go right through. The 
ones that do not come back to the full committee, and based on 
the prerogative of the chairman, they will have a hearing.
    But as in North Dakota, the legislators are involved in 
this negotiated rulemaking that happens out in the field, 
because the agencies notice up their meetings, we have to 
promulgate some rules here to address this issue, and the local 
legislators show up. So they are involved in that process.
    We are a part-time legislature as well. We do meet every 
year. But, anyway, we are directly involved there.
    There is always creative tension, you might say, between 
the legislative intent and the Executive Branch. Regardless of 
party, regardless of sameness of party, there is always some 
creative tension, at best, that can devolve into something 
else, at worst. And so it keeps everyone honest, this back and 
forth. If the agency overreaches, then there is a self-
governing check that happens in the rules review process. If 
the regulated agency is trying to get away with something or 
makes assertions that end up to not be true, then there is a 
check back on them, and the legislature has the ability to say, 
``Yes, regulated industry, that is exactly what we meant, and 
we do support this rule.''
    So it balances out, and it is a custom and culture in Idaho 
to--that says this is true, good faith, negotiated rulemaking, 
because of this check and balance, that you have to come back 
to the legislature, and if there is anything untoward on either 
side of the table, so to speak, then that comes out in the 
hearing process, and it is corrected. And so it works well. I 
referenced good government. It is just basic good civics. It 
involves the elected official in the process. He becomes 
accountable to that regulated industry and becomes the advocate 
in the process with the Executive Branch, and it makes us write 
tighter laws, and then be involved to the final implementation 
of the rules out with the regulated public.
    Senator Lankford. Yes, accountable all the way to the end. 
Senator Carper.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. Thanks. My first question would be for Mr. 
O'Neill. Are you from Connecticut?
    Mr. O'Neill. Yes, sir, I am.
    Senator Carper. Why do you always have such good women's 
basketball teams? Seriously.
    Mr. O'Neill. Well, I would have to give a lot of the credit 
to the coach, Geno Auriemma, and once you have developed a 
great reputation. But there are a lot of good women basketball 
players in Connecticut. My daughter was a star at Trinity at 
one time.
    Senator Carper. No kidding. All right.
    On a more serious note, I am a recovering Governor, and had 
the opportunity to be Chairman of the National Governors 
Association (NGA) at one time, and I used to love to come 
before Congress and testify. And because Delaware is so close 
by, and I was the Vice Chairman and the Chairman, I got called 
on quite a bit. I love to do that. And you know why? Because it 
is the issues that they were discussing on most days, I 
actually knew more than they did about them. And it was just 
very helpful.
    And today it is kind of--I am reminded of that situation 
because you all know a lot more about this than some of us. And 
I have always said that the States can be laboratories of 
democracy, and this is a case where you all can really help us 
out, and I think help out the country.
    I have not read verbatim your testimonies but I am going to 
ask each of you to just give me maybe the two most important 
points in your testimony so that I can just mull that over, and 
then I have a couple of questions. But just give me the two 
most important points in each of your testimonies. Mr. Bedke.
    Mr. Bedke. Two important points. Number one, we have always 
done rules review, at least in recent history, since the late 
1960s, it became the custom and culture in Idaho to do that. We 
always knew there was a separation of powers issue that we did 
not want to cross. We orient new legislators on that because 
you will have firebrands that come in and think that they can 
come in, that this is the legislature's prerogative to rewrite 
the rules. We caution them against the--we remind them of the 
Supreme Court precedents that we have nationally as well as at 
the State level. And it was ultimately challenged by a then-
Governor.
    Senator Carper. Which one?
    Mr. Bedke. It was Cecil Andrus in a health and welfare 
case. And so the legislature prevailed there, with a 3-2 
decision, and that made everybody tighten up our practices for 
the ensuing decades. But it was such a good government 
practice, as we described earlier, that we thought we should 
codify that decision in the State's constitution, and that is 
what we ultimately did, and it is working. That is my take-home 
message.
    Senator Carper. All right.
    Mr. Bedke. And I believe, as seems to be the prevailing 
sentiment here, that there are some things that the Federal 
Government could do that would emulate this process, and it may 
iron out some things. Frankly, you all are not passing a lot of 
laws. The laws that are----
    Senator Carper. I have noticed that. Good thing we do not 
get paid this year by all the bills we pass.
    Mr. Bedke. So the interaction with the Federal Government 
and our Nation's citizens happens at the rules and regulation 
and guideline level. And that is an abdication, I believe, of 
the legislative branch's power, and we need to balance that 
back, and that will have the effect of good government. It does 
not predict an outcome but it just ensures a good-faith, good 
process.
    Senator Carper. All right. Thank you. Mr. Boschee, Joshua, 
like in the Bible.
    Mr. Boschee. Yes. Thank you, Senator, I think the two most 
important aspects of the North Dakota process is that we are 
truly a review process. We do have the power to void but in the 
23 years we have had that power we have only used it eight 
times, and that is really built off of, I think, the process 
being one in which we are involved as citizens as legislators, 
but then also on the back end, for that final review piece.
    I think the second part is our flexibility throughout the 
process. We do provide the opportunity that if a rule that has 
been proposed and they are out in the field doing hearings and 
taking testimony from folks, they are able to augment those 
rules a little bit to accommodate those concerns that are 
presented, as well as at the committee level, we can help 
amend, especially if there are last-minute concerns. If things 
have changed in the last 90 days that need to be adapted, we 
provide that opportunity throughout our process. We are 
responsive and flexible.
    Senator Carper. Good. I am going to come back and ask you a 
question about why only 8 times in 23 years, but I will get 
that in the next round.
    Mr. O'Neill, two great takeaway points from you, please.
    Mr. O'Neill. Yes, I think that the greatest strength of our 
system is that it has been institutionalized so that everyone 
accepts it. Our most recent Governor, Governor Malloy, has been 
something of an exception. He has tried a couple of times to 
undermine or weaken the regulation review process but the 
institution, the legislature, has resisted those efforts, and I 
think it is accepted regardless of party.
    Senator Carper. What is his motivation?
    Mr. O'Neill. I think what he was claiming was that he 
wanted to streamline the regulation process by eliminating the 
review piece, which, of course, would streamline things, and 
nobody would know, necessarily, what was going on or be able to 
act as a check, which was the whole point of the review.
    Senator Carper. Have you talked to him about this?
    Mr. O'Neill. Not personally, directly. I have spoken with 
his aides that bring us these proposals and things like that, 
and they have said, ``Well, because we think it would make 
things go more smoothly,'' or because he wants to deregulate a 
lot of things and wants to pass deregulatory types of 
regulations, repeal things, and when repealers are done we look 
at them as well. So that was suggested as the reason why he was 
trying to do that.
    Senator Carper. In Delaware, when our legislature was in 
session, we were in session off and on from January 1 through 
June 30th, and they were out for weeks at a time, doing budgets 
and stuff like that. But whenever they are in session, in 
Dover, if a legislator--House, Senate, Democrat, Republican--
wanted to meet with me, I would meet with them that day. We 
would find time.
    Mr. O'Neill. Yes. I do not know that Governor Malloy does 
that, and, in fact, I----
    Senator Carper. You might want to meet with him and say, 
``I talked to a recovering Governor from Delaware and he said 
this is what he did with his legislators.'' And I will say 
this--we had eight great years. It delighted a Republican House 
and Democratic Senate, and got along probably as well with the 
House as with the Senate. It works.
    OK. Go ahead. Your second point?
    Mr. O'Neill. In addition to that is that I would say 
another strength of ours is that unlike what I am hearing from 
the other members of the panel, we reject a lot of regulations. 
Now that does not mean that they are dead forever because they 
are supposed to bring them back right away and fix them and 
correct them. We disapprove, which is really kill the 
regulation forever, very rarely, once every 4 or 5 years. So we 
do have an ongoing dialogue after we reject the regulation, 
with the agency. That is when we really get into a dialogue 
with the agency.
    If we look at what they have done and say, ``You got it 
wrong and here is why we think it is wrong. Sit down and work 
with us, or, more importantly, have your lawyers talk to our 
lawyers and work out the details,'' and that is when we, I 
think, are able to resolve conflicts and give the public a real 
opportunity to weigh in on those challenged ones, is when we 
have that dialogue of sometimes rejecting them two or three 
times before we get final approval.
    Senator Carper. Thank you. Now, Joshua, I mentioned that I 
was going to come back and ask you about 8 times in 23 years 
you actually voided regulations. Why so few? That is a 
surprisingly low number.
    Mr. Boschee. Senator, one of our practices on the committee 
is often if it comes to the review process to us and there are 
contentions between the regulated community and the agency, we 
often will table the rule for the quarter, and that is 
basically a shot across the bow to the regulators, saying, 
figure this out with the regulated community so we do not void 
these on you, and oftentimes it has been resolved and it is 
amicable. They show up at the next meeting and say, ``We have 
kumbaya-ed. We have figured it out and we would appreciate you 
all to approve what we have changed.'' So, again, that 
flexibility that we allow. They do not have to re-notice. They 
do not have to re-hear. If they make that change, that is 
amicable, and we do not have to be in a contentious situation. 
It will then be reviewed at that point.
    Senator Carper. OK. Could I just ask one more? Do you mind?
    Senator Lankford. Yes, you can.
    Senator Carper. One says yes. The other says no. The 
Democrat said no. I am a Democrat. That is bipartisan.
    Do you have a lookback, generally--one of the things Barack 
Obama did when he was President, as my colleagues will recall, 
is he asked, I think it was Cass Sunstein, who was the head of 
the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB), asked him to do a 
regular lookback, and just look back at our existing 
regulations and see which ones would I keep, which ones we have 
to get rid of. And we got rid of, quite a few over time. Do you 
all have that policy in your State, Mr. O'Neill?
    Mr. O'Neill. Yes. We actually started doing that about 20 
years ago. We passed legislation that required all of the 
agencies to review all of their regulations. We had a schedule 
of them to come in and report to us and tell us which ones 
ought to be removed from the books, and that worked well the 
first time we did it because there was a strong impetus to do 
it.
    They were supposed to come in on a 5-year rolling schedule 
to keep on doing this, and that has not worked out. So what we 
recently did was we shifted the responsibility for handling 
that from the Regulation Review Committee to the substantive 
committee. So a transportation regulation would be brought over 
to the Transportation Committee for them to decide, because 
they have a more regular contact with an agency to decide about 
those kinds of things. So this is new. We have not really seen 
how it works. We just changed the law last year. But after the 
first go-around, it just never seemed to get off the ground 
again, to keep going with that regularly scheduled review.
    Senator Carper. That makes sense. OK.
    Mr. Boschee. For us, Senator, we have not wholesalely--or 
wholesaled the process such as Connecticut. But generally, what 
we find is that when an agency brings forward something to do 
with a section of code and they want to update, or something is 
not relevant anymore, they will update it at that time and that 
is part of the process.
    Senator Carper. I see. Thank you. And Scott.
    Mr. Bedke. I think that the fact that we, maybe, North 
Dakota and Idaho, reject so few rules, and maybe we do more 
than they do, but I think that this involvement and this 
process that we are used to that has happened for decades 
preempts some of the problems. And so it has this leveling 
effect because no one tries to gain the system at the advantage 
of the other party. And so I think that we preemptively solve a 
lot of the problems because everyone knows that they are going 
to have to stand tall in front of the legislature, whether it 
is the regulated community or the agency, and justify their 
actions, and that has the effect of creating better behavior on 
both sides.
    In Idaho, we were able to also look back--everything--every 
rule is fair game. So the ones that are pending, if they become 
permanent, then we are--and there becomes a problem that 
everyone missed, then we are able to pull those back and review 
those again. But it prompts a negotiated rulemaking afterwards, 
and while we are in session, of course, they cannot promulgate 
a rule, but as soon as we leave then there becomes another 
temporary rule and they try to employ the lessons that they 
have just learned, or the new information that has just come 
forward.
    So I think the involvement preempts problems, and thus we 
have fewer rules rejected, because we have been doing it for a 
while and we have kind of found our own level.
    Senator Carper. Great. Well, we have lot of folks who come 
and testify before us but this is an extraordinary panel, and 
we--some nice common-sense, practical, just really good advice, 
and straight talk. We appreciate that, and I hope you enjoy 
your stay here and you will come back and help us with other 
problems. All right? We will put you on retainer.
    Senator Heitkamp. I have a quick question. Have any of your 
States looked at judicial review and whether there had been a 
reversal of a lot of rules before your process, and whether, in 
fact, there has been a decline, and probably maybe even an 
elimination of judicial reversal of regulations as a result of 
this process?
    Mr. Bedke. That is an interesting question, Senator, and I 
can have the research done, but I do not have a straight answer 
for you at this point.
    Senator Heitkamp. Off the top of your head, do you have any 
recollection at all of a recent censure process, since the 
constitutional process went into effect, of the court voiding 
any rule that came through this process?
    Mr. Bedke. Keep in mind we only elevated this to the 
constitution last November----
    Senator Heitkamp. OK.
    Mr. Bedke [continuing]. And so we have not had a challenge 
yet. But I believe that new legislators are going to have to be 
careful with the wording that we use, and if we begin amending 
rules----
    Senator Heitkamp. You are in trouble.
    Mr. Bedke [continuing]. Rather than just accepting or 
rejecting, I believe--and I am not a lawyer, and forgive me for 
bragging---- [Laughter.]
    I believe that there is a line out there over which we 
should not cross, but we have not been challenged yet. Of 
course, that were some of the assertions in the campaign 
leading up to the constitutional amendment, that this was going 
to be challenged and whatnot, but the opponents could not come 
up with a scenario that was not addressed in our process. Now, 
my friend from North Dakota has gone into great length in the 
technical aspects of your State's process. We have a similar 
technical way that we do it all. And so the opponents that 
debated me, during the campaign leading up to this, we were 
able to go into depth and to allay those concerns in a way that 
allowed the process, or the measure, to pass with nearly 60 
percent of the vote.
    Senator Heitkamp. Yes. I think one of the points that I am 
trying to make is that listening to you all, we are worried 
about whether you are usurping executive authority, but you are 
almost acting like a first judicial review of the regulation. 
And so where we have focused on this separation of powers, a 
lot of what you are doing is what you would expect a court to 
do on the front end. And I am just wondering if you see a 
reduction in the number of regulations that have been voided by 
the court because you have gone through this process.
    Senator Lankford. Let me add one thing to that and I 
definitely want to hear this answer. The court has the 
responsibility in law to define what the law says. You are 
actually saying, no, this is what the law says and you are not 
following it as a regulation. So that is why we are jumping 
into this. We have lots of follow-up questions on this issue at 
Judicial Review, but let us keep going.
    Mr. O'Neill. We have been at it so long it is hard to tell, 
in terms of challenges, other than the Pac decision where it 
was voided, or the committee already was challenged as 
unconstitutional at the lower-case court and then later on was 
not, but that case was overturned but not resolved.
    We do not get a lot of court cases, as far as I can tell. I 
certainly could go through and see. We can try and do a 
comparison. Things were so different in the way people would be 
able to go to court and challenge things, back in the 60s, I 
would say, for regulations, before this committee really got 
rolling in the 70s. It would be hard to do a comparison.
    I do know that periodically, so people do still challenge 
our regulations--we will hear, because we are told, we have to 
subpoena all the records from the review committee's 
proceedings to bring to the court because they are challenging 
a regulation on the grounds that something is being done, 
either inconsistent with that the committee told them to do and 
what the regulation was rewritten to say, or they are claiming 
somehow that there was something wrong with what the committee 
did. But that does not happen on a, as far as I can tell, a 
very regular basis. My impression is that most issues that 
would provoke a court action are resolved at the committee 
level. It is certainly one of the things I think of as strong 
points of this process is that you can avoid unnecessary 
litigation because you have someone on the bureaucracy side who 
simply will not listen.
    So that is my impression. We do not get a lot but we still 
do get some.
    Senator Lankford. OK.
    Mr. Boschee. And my recollection is, we have not had too 
many court cases, judicial cases, related to this. But what I 
have seen, and I would have to think of an example--I cannot do 
it off the top of my head right now--is that advocates for a 
judicial change may go to an agency and say, ``Can we make a 
change through the administrative rules process?''
    Senator Lankford. Say that again.
    Mr. Boschee. Where advocates of a change--so instead of 
taking----
    Senator Lankford. So an outside citizen group.
    Mr. Boschee. Right.
    Senator Lankford. OK.
    Mr. Boschee. Or a business entity group, regulated 
community would go to the agency and say, ``Instead of us doing 
this, can we come to compromise through the administrative 
rules process?'' And, again, we have not had a constitutional 
challenge so that is unique, I think, compared to my colleagues 
here.
    Senator Lankford. Fine. I am still back in the same 
position. I am trying to figure out the process here, because, 
again, we see the animus. We are trying to figure out what is a 
legal process. What other States have done as they have walked 
through this.
    Several years ago, the House of Representatives was 
frustrated with the President--and I can fill in the blanks on 
this--basically not applying the law as they saw that had been 
written and done. And so they went to the court. The court, 
actually, for the first time, went to the President and said, 
no, the President does not have the constitutional authority to 
be able to do this. Here is what the law says. And, literally, 
the House of Representatives was suing the Executive Branch to 
go through that.
    That case is now determined. It is a famous case now 
dealing with the Affordable Care Act. But that is a case where 
the House is actually filing a suit against the actions of the 
President. What I am trying to figure out is, is that the 
natural connection point here, where at the Judicial Branch, 
which really says what the law says, steps into a regulation 
and says that regulation is not consistent with that group? And 
the reason it comes up so often here is, by the time the 
regulation is promulgated, it is a different Legislative 
Branch.
    You are saying it is already so with you all as well, that 
the promulgation of the rule and the finalizing of the rule, it 
is a new legislative group after an election that is actually 
going back and reviewing it. That has been the contentious 
point. It is not the same people writing it, literally. It is 
the same body but not the same people writing it, also saying 
this is what we meant or did not mean by it. Does that make 
sense?
    Mr. Bedke. It does, and I believe that in--but because of 
the practice back at the State levels that we have described 
here, there are fewer aggrieved parties. And so going to the 
court for redress or relief is, that relief has been granted in 
the process that led up to the writing of the rule. And, so I 
do not presume to understand all the ins and outs of here, but 
you have, available to you, the Congressional Review Act (CRA) 
that you have employed----
    Senator Lankford [continuing]. As recently as this week.
    Mr. Bedke. That is right. And so that allows by concurrent 
resolution or--but the President has to sign that. Now we do 
not have that. The Executive Branch does not have to sign off 
on these. Many States have the ability. As we were doing our 
research for this constitutional amendment, there are many 
States that have rules where you process but they have to do 
that rules review with a bill that is passed as both bodies, 
and then is signed into effect by the Governor.
    And, I will use the phrase that is the ``fox guarding the 
henhouse'' to a point, very lightly. I mean no disparagement. 
But that would seem to violate the separation of powers on the 
other side of the issue. It is the legislature's prerogative to 
make the laws, executive carries them out, the judiciary--this 
is basic civics, and that is why I believe that if works so 
well. And, over time, if it is allowed to work, then you 
preempt a lot of problems.
    Senator Lankford. But that is the challenge of the 
Congressional Review Act, is that it does require Presidential 
signature, and often you have an Executive Branch creating a 
regulation that the Legislative Branch may say, no, that is not 
consistent with the law, but you have to go get approval from 
the people that wrote it the first time.
    Mr. Bedke. That is my use of the term ``the fox guarding 
the henhouse.''
    Senator Lankford. Yes. No, I picked up the nuance there on 
that, but that is also why it has only been used 15 times in 
the history of the Congressional Review Act, and it has always 
been with the transition of the White House.
    Mr. Bedke. And, if I may, the political stars have to line 
up so that the President is of the same party----
    Senator Lankford. Right.
    Mr. Bedke [continuing]. As the--you get it.
    Senator Lankford. I do. So the retrospective, or going back 
and looking at old regulations as well, for all three of your 
States, you could look at any regulation, at whatever year, at 
whatever time. Is that correct, or is there a time limiting 
that you can only review it for the first year, or once it is 
promulgated or finalized? Do you have the ability to be able to 
look at any regulation at any time?
    Mr. Bedke. We do. In Idaho we do.
    Senator Lankford. OK.
    Mr. Boschee. I believe we do. I will double-check and get 
back to you.
    Senator Lankford. Representative O'Neill?
    Mr. O'Neill. The committee cannot initiate that process 
other than through this legislation that we have that requires 
the agencies to periodically report. As I said, we just changed 
that. The committee gets regulations before they go into 
effect, but they do not go into effect unless the committee 
approves them or lets them go through----
    Senator Lankford. So your committee has the ability--they 
propose the rule, go through the final language, the committee 
has the conversation. Before it ever goes into effect it has to 
be signed off by your committee.
    Mr. O'Neill. That is correct.
    Senator Lankford. OK. Same for both of you as well? It 
cannot go into effect until it has a signature?
    Mr. Bedke. For Idaho, it is after the fact. All of the 
rules that are promulgated come back to the legislature, and if 
there is a rule that is in the archives or is not a pending 
rule for that year, then an individual legislator drafts the 
concurrent resolution, brings that to the committee, and then 
the committee has the prerogative to go back. Certainly the 
ones that are permanent rules--well, nothing is permanent----
    Senator Lankford. I have noticed.
    Mr. Bedke [continuing]. But there is a greater buffer of 
protection, if you will, from the legislature there than there 
is. But an individual legislator can draft a resolution, bring 
that to the committee. If the chair agrees then it proceeds.
    Senator Lankford. OK. Go ahead, Representative Boschee.
    Mr. Boschee. I was going to say, we do not sign off as part 
of our review. The committee only would vote on the review if 
we have made a language change as part of the process. So if we 
amend it to make it more friendly to the regulated community, 
or if something happened in the last 30 days that we need to 
also make part of this rule, then we would, as a legislative 
action of the committee, change it.
    Senator Lankford. But you could change text, add text to 
the regulation.
    Mr. Boschee. Correct.
    Senator Lankford. Both of you are basically saying you are 
not adding many words. You could delete words or get rid of it 
entirely.
    Mr. Bedke. That is correct, Senator.
    Mr. O'Neill. That is right. We cannot add a word.
    Senator Lankford. OK. This is extremely helpful. Let me ask 
one last question on that. I would be very interested in 
anything else you want to contribute to the record, here, to be 
able to get in.
    My one last question is, is there a State that you would 
recommend that we also look at, based on your own research and 
your own interaction with other States, to say they also--we do 
not do it exactly like they do but I think you should look at 
that State and how they do it?
    Mr. Bedke. Senator, right off the top of my head I cannot 
think of other States, other than Connecticut, which is what we 
looked at a lot in the lead-up to ours. You will find that many 
States have a similar process, maybe, in the low 20s, and then 
there will be the rest of the States, in the high 20s, that 
have the insertion of the Governor in the process, I believe.
    Senator Lankford. The fox in the henhouse conversation.
    Mr. Boschee. I am sorry. I am not able to provide any other 
States.
    Senator Lankford. OK. There is no State better than North 
Dakota, is what you are saying.
    Mr. Boschee. Correct.
    Senator Lankford. OK. I get it.
    Mr. O'Neill. Well, I am always told that Connecticut has 
sort of been the creator of the most advanced system in this.
    Senator Lankford. You have had a lot time to be able to 
develop this system.
    Mr. O'Neill. Yes.
    Senator Lankford. OK. Gentleman, I appreciate it very much. 
What I would ask of you is as you have other ideas and thoughts 
on it, feel free to be able to share that with me or with our 
staff, because we continue to be able to gather these ideas.
    This has been an issue that plagues us, because of the 
number of regulations that we have and the number of agencies 
that are creating them, and the difficulty of the checks and 
balances. The Office of Management and Budget process was 
created to try to help Congress manage that, though it is in 
the Executive Branch, but we are still in the same mode of 
trying to figure out how to be able to manage that and how to 
be able to get back to, Speaker Bedke, as you mentioned as 
well, the person that is elected being held accountable when 
the final regulation is done.
    My only thought is, is there a moment when the Executive 
Branch has to challenge the Legislative Branch, that when you 
see--let us say a bill is passed, the regulation is done, the 
legislature looks at it and says, ``That is too onerous. That 
is too overreaching,'' and their response is, ``That is what 
the law says. This is the only way to do what you asked us to 
do,'' that the Legislative Branch has to come back and say, 
``You are right. There is not another way to do it. We 
stretched it that we have to pass something new.''
    Has that happened to you all, where there has been a 
challenge to be able to step back and say, ``We have to fix the 
statute because we asked them, the regulators, to do something 
that will be so expensive or so onerous that we are going to 
have to pull back the statute.'' That becomes, again, a 
judicial question where the judiciary can step in and say, 
``No, that is what the law really says.''
    Mr. Bedke. Senator, that has a ring of familiarity to me. I 
do not have the specifics but I believe that we have done a 
double-take. This return and report that is baked into this 
process gives pause both to, I am sure has given pause to the 
legislature in Idaho before, and then have gone back through 
the regular process and addressed the underlying issue in the 
law. And, not that we admit to mistakes on the legislature 
side----
    Senator Lankford. Of course not.
    Mr. Bedke [continuing]. But maybe things happen, and, 
anyway, we go, ``Oh, I can see--''
    Senator Lankford. I would tell you I have had some 
colleagues that voted for the Dodd-Frank proposal when it came 
out, and after the regulations started being promulgated they 
said, ``I did not realize it would mean that.'' And so there is 
some push and pull on it.
    Mr. Bedke. Naturally, and that should precipitate a law 
change.
    Senator Lankford. Right. Any thoughts on that?
    Mr. O'Neill. Yes. We actually have one of those cases 
pending right now. We had a legislation that called upon, I 
believe, public health and the Department of Environmental 
Protection to develop some regulations jointly. They created 
the regulations and then each of the commissioners wrote us a 
letter saying that these are terrible regulations but we are 
doing what you asked us to do, and if you look at the 
consequences of imposing these kinds of regulations you are 
going to be jeopardizing public health, because it changes a 
lot of things about allowing people to sell foods that have not 
been properly tested, and that sort of thing.
    Clearly, somebody had an idea, it went through the process, 
and it did not get carefully enough reviewed before it became 
statutory law. And so what we have done, in the committee--and 
this may be an example of us stretching--said we are going to 
reject it, even though it does what the law says, we are 
rejecting it without prejudice, and do not bring it back until 
after the legislature has had a chance to sit down and review 
all of this again. So this does create that kind of an 
opportunity for the agency to have a second go at the 
legislative process and say, ``Did you really mean to do 
that?'' And we now have concluded no, we really did not.
    Senator Lankford. That is extremely helpful.
    Gentlemen, thank you again. Let us keep the dialogue going 
as we try to work this out. At some point, when we finally get 
it all resolved, you will be able to tell your grandchildren 
``I fixed that,'' and was a part of helping getting that 
resolved. So I appreciate it very much.
    Any final comments? Anything that needs to get on the 
record?
    Mr. Bedke. And let us tell our children, not our 
grandchildren.
    Senator Lankford. Yes. I would be very good with that. Any 
other final comments?
    Mr. Boschee. Thank you for the opportunity.
    Senator Lankford. Thank you. Thank you all for being here.
    I will make a final statement and announce the next 
hearing. Today's hearing is concluded. The hearing record will 
remain open for 15 days until the close of business on November 
the 10th, for the submissions of statements and questions for 
the record.
    This hearing is adjourned.
    [Whereupon, at 11:24 a.m., the Subcommittee was adjourned.]






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