KRC Testimony In Opposition To Senate Bill 1 Posted: January 30, 2014
Before the Senate State and Local Government Committee
January 29, 2014
Senator Bowen, Committee members, I appreciate this opportunity to express my concerns regarding the proposed Senate Committee Substitute to Senate Bill 1, which would place on the ballot an amendment to the Kentucky Constitution allowing the General Assembly to delegate to the Legislative Research Commission the power to prohibit the adoption of administrative regulations that a legislative committee finds to be deficient.
It is only because I harbor a deep streak of masochism that I appear before you, unheeding of Senator Harris’ oft-repeated admonition to me that “Fitz, you know the bill wouldn’t be coming up unless the votes were there to pass it,” to express my concerns regarding a proposal that has it the number one priority of this chamber’s majority party.
My concerns are twofold - the lack of need for such an amendment and the delegation of judicial, executive, and legislative power of the House and Senate to a committee of the General Assembly.
The separation of powers under our Commonwealth’s constitution is clear – the legislative branch enacts laws, the executive branch implements those laws, where authorized, by administrative regulation, and the courts of justice determine whether the regulations so promulgated comport with the underlying statute. SB 1 would alter this separation of powers in a fundamental way, reversing part of the 1984 decision in LRC v. Brown by creating a legislative veto that could be delegated to a subset of members of the House and Senate.
My first concern is the lack of necessity for the amendment. The premise of the bill, as reflected in the preamble, is that “the executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient,” yet the recent record reflects otherwise.
Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare. According to the Report of the 2013 Administrative Regulation Review Subcommittee, from November 2012 through November 2013, executive branch agencies submitted 492 ordinary administrative regulations (up 19% from the prior year), 88 of which were new, 329 of which amended existing regulations, and 75 of which were amended after public comment.
Of the ordinary regulations reviewed, 434 were approved (some after the agency accepted comments from the Subcommittee regarding Chapter 13A compliance) and only 3 were found to be deficient. Of those 3, the agency withdrew one, and only two became effective based on written determinations by the Governor – the first being the required core academic standards, and the second, a regulation relating to managed care promulgated by the Department for Medicaid Services. Thus, less than 1% of the regulations reviewed were found to be deficient for 2013.
For the period of 2010 through 2012, the numbers are quite similar. In 2012, the Administrative Regulations Review Subcommittee made no finding of deficiency for any of the administrative regulations reviewed. In 2011, one regulation relating to assessment of ad valorem taxes on watercraft was found deficient and was later withdrawn by the agency.
With the length of time involved in promulgation of administrative regulations, and with the General Assembly meeting in annual session, those rare instances in which the Governor determines to implement a regulation notwithstanding a finding of deficiency, can be addressed through specific legislation, such as that proposed in House Bill 215, and the full membership of the House and Senate can debate these matters of public policy. If the LRC believes that immediate action is necessary to prevent implementation of a regulation that it believes is contrary to law, it may seek a declaration of rights and may challenge the regulation under Kentucky Constitution Article 2.
The delegation of the power to prohibit the adoption of administrative regulations to a committee of the General Assembly diminishes both the functions of the judicial and executive branches, even as the preamble to the bill recognizes to be co-equal branches of government. Yet it also diminishes the role of the House and Senate as collegial bodies by allowing a subset of the House and Senate to legislate. Particularly where the question is not one of executive branch authority, but rather a disagreement over the exercise of discretion that the General Assembly has granted to the Executive Branch, it should be the General Assembly as a whole that makes a decision as to whether to change the law in order to alter the outcome, not a committee acting as if it were the General Assembly.
Senator, and members of the committee, I can fully appreciate the frustration that some members of the General Assembly may have concerning the Governor’s decision to adopt the revised core standards and managed care revisions notwithstanding the ARRS rejection of those regulations. I have, as you know, had (and expressed) my own frustrations on occasion when I believe that an agency has acted in a manner that is not consonant with sound science or statutory mandate. Remedies already exist for those rare instances in which an agency is deemed to have acted in a manner contrary to the letter and intent of legislation. I would hope that those very rare instances could be addressed without upending the balance of powers in our Constitution that has worked effectively in the main for many years.