The growing leviathan of government red tape constrains American individuals and businesses, drains taxpayer purses, stifles economic progress and discourages self-reliance. If this makes you angry, you should probably avoid Pocatello, Idaho where it has been illegal not to smile since 1948 (though the existing law was out of humor, it remained on the books).
But in all seriousness, the states are the proving grounds for well-structured regulatory reform, with Idaho and Montana leading the way. These states are implementing the three essential pillars of regulatory reform: legislative oversight, executive responsibility, and judicial deference.
The governors and legislatures of Idaho and Montana recognize the critical necessity of adopting regulatory reform. Their examples of strong executive oversight of rulemaking and limiting bureaucracy and of legislatures increasing their lawmaking stewardship have improved the state economies and fostered potential growth in the region.
So where do these leaders in regulatory reform go from here and what are the lessons for other states? Our new study looks to answer this question.
A frequent phrase on any farm with animals is, “SHUT THE GATE!” For anyone who has chased free and roaming livestock around a field, it is easy to understand why it is too late to shut the gate once the horse has bolted. It seems that many lawmakers forget this altruism. Leaving the proverbial gate (well-written statutes) wide open to the bureaucracies to stampede away with the rule of law. Future reforms should focus on shutting the gate, putting the horse back into the corral, and keeping the gate closed.
Lawmakers should adopt a practice of a cyclical review of statutes, in addition to rulemaking. This would require agencies to conduct a cyclical review of all statutes to find outdated, unnecessary, or complicated laws. Idaho has already led the way on cyclical rulemaking review, but it is important to review the source of the rules in the first place, the statutes. Once the statute review has been conducted, the agencies would present findings and recommendations to the committees. This continued responsibility towards all statutes will keep the bureaucratic horse firmly locked behind the gate of well-written statutes.
On January 15th, Idaho’s Speaker of the House Mike Moyle announced a piece of legislation that would strive towards this recommendation.
Congressional Republicans have proposed the Regulations from the Executive in Need of Scrutiny (REINS) Act. The REINS Act is an attempt to wrest back lawmaking from the fourth branch of government and the executive. Republican lawmakers have reiterated the need to have congressional oversight on regulatory authority.
Idaho’s long-standing utilization of legislative review of administrative rules gives evidence that a federal REINS Act would prove a success for all taxpayers, businesses, and the national economy. Even before Governor Little’s implementation of zero-based regulation and utilizing sunset clauses on a cyclical basis, Idaho’s legislative review slowed the promulgation of new regulation.
State and federal rulemaking across the country would benefit from a REINS Act with required legislative approval of new rulemaking.
What are the next steps forward for states that are already leading the efforts for regulatory reduction? For Idaho, the successful reduction in the administrative code from 8,553 to 5,318 pages is a notable achievement and the further adoption of statutes by the legislature strengthens these reforms. The next step forward is to increase the legislature’s responsibility and obligation to shut the gate on runaway rulemaking. These reforms could include:
Adopt a cyclical legislative review of statutes identifying and eliminating or reducing unnecessary, duplicative, or excessively burdensome laws, that are contributing to unneeded rulemaking.
Require all new statutes to include a Regulatory Impact Notice (RIN). While also adopting a legislative practice of using words that the agencies “may” instead of “shall” or “must.” Lawmakers should be encouraged to draft legislation that is rarely reliant on rulemaking, with language that doesn’t rely on bureaucracy to flesh out the laws.
Clarify the specific requirements of a cost/benefit analysis. Adopting specific guidance of how the analysis is conducted, what it will include, and ensuring the process is simple to conduct, without needing a PhD in economics.
Specify the governor’s role in temporary rulemaking, ensuring executive oversight of the temporary rules and mandating transparency in addressing the need for such rules.
Idaho and Montana’s regulatory reform efforts are something to be proud of. The strong economies and high population growth are just some of the benefits that come when a state focuses on reducing regulatory burden, so businesses and individuals can achieve more without the bureaucratic horse stampeding across their path. Other states and the federal government should take note of the lessons learned from Idaho and Montana and watch their efforts as they continue to improve their already leading position.