Idaho lawmakers flex muscles to protect veto

A measure to put authority in the Idaho Constitution is moving forward.

dpopkey@idahostatesman.comJanuary 23, 2014 

Idaho lawmakers believe they have more power than any other U.S. Legislature to reject rules when they find them out of whack with the legislators’ intent. They want to keep it that way.

The first few weeks of each legislative session begin with what can seem like to freshmen lawmakers a mind-numbing game of Trivial Pursuit that could amuse only a bureaucrat, accountant or insomniac.

But the work matters, covering the gamut of state action: achievement expectations for K-12 students; air and water quality protections; construction standards; eligibility for benefits, including food stamps; free speech rights of protesters at the Capitol; and even camping fees at state parks.

“We talk about them as rules, but they’re really laws,” said House Minority Leader John Rusche, D-Lewiston.

Rusche didn’t learn of House Joint Resolution 1, the move to amend the constitution regarding veto power, until Wednesday; he said he needs time to study the change.

But he endorsed the general practice of legislative review. “Putting it into the constitution rather than depending on a court case, I can understand,” he said.

That court case on the veto rules, decided 3-2 by the Idaho Supreme Court in 1990, makes for a “tenuous” legal foundation, said House Speaker Scott Bedke.

“It’s a very important component of the checks and balances between the branches of government,” said Bedke, R-Oakley. “It’s time we enshrine the practice in the constitution.”

The 1969 Legislature first gave lawmakers power to veto and amend rules written by executive branch agencies. Between 1976 and 1996, 43 rules were amended, according to House State Affairs Committee Chairman Tom Loertscher, who introduced HJR 1.

But in 1996, lawmakers quit the practice of amending rules on the advice of Carl Bianchi, who had become staff chief of the Legislature after years as administrative director of the courts.

Bianchi warned that overstepping could prompt a Supreme Court reversal. The narrow decision in 1990 upheld the right of the Legislature to repeal septic tank rules written by the Board of Health & Welfare.

“They’ve been walking on eggshells ever since,” said Jack Lyman, executive vice president of the Idaho Mining Association, who’s spent 25 years as a lobbyist making himself an expert on rules.

Today, to veto a rule, a majority vote on a resolution is required in the House and Senate. The Legislature can strike specific provisions or sweep away an entire rule, sending the executive branch back to the drafting table.

The governor’s signature is not required. If the chambers don’t agree about getting rid of the rule, it stands.

To approve rules that increase fees, both chambers must consent. A companion bill to HJR1 that legislators expect soon would do essentially the same for all rules.

ZEALOUS AND JEALOUS

In 41 states, administrative rules are subject to review, with 28 permitting legislative veto. Of those, 15, including Idaho, leave it to the Legislature to pass a resolution independent of gubernatorial approval. In 13 states, rules may be rejected by passage of a statute, but that requires the signature of the governor or a veto override.

“We have zealously guarded our authority,” said Loertscher, R-Iona. “And other states are jealous of our process.”

Courts have heard constitutional challenges to legislative veto in at least 11 states; Idaho is one of two where a court upheld the power. The Idaho case, Mead v. Arnell, is cited by the National Conference of State Legislatures in its summary of legislative oversight.

When Bedke became speaker late in 2012, the effort to stiffen the rulemaking authority was high on his task list. He has support from Senate President Pro Tem Brent Hill, R-Rexburg, and Majority Leader Bart Davis, R-Idaho Falls.

Gov. Butch Otter, who served two terms in the Idaho House in the 1970s, consulted with GOP leaders on the issue early this year. Otter said he backs HJR 1, which, if it receives a two-thirds vote in both houses, will go before voters statewide in November.

HRJ1 makes today’s practice explicitly legal: “The Legislature may approve or reject administrative rules” written or issued at the Legislature’s direction.

“We’re a republic,” Otter said Wednesday. “Once those rules are adopted, they should always be reviewed because they have the full force and effect of law as though they had gone through the Legislature one line at a time. The Legislature should have that authority and responsibility.”

TRIMMING THEIR SAILS

Last week, the Idaho Outfitters and Guides Licensing Board withdrew a rule governing the hunting of turkeys and waterfowl on private land. The Idaho Farm Bureau opposed the rule, saying it would require licensing a farmer or rancher for charging a guest to hunt their land.

Rep. Fred Wood, R-Burley, who spent eight years on the Fish and Game Commission, opposed the rule for a different reason: He feared that it could allow wealthy hunters to lock up private grounds traditionally open by permission from landowners.

“The board tried to do something the Legislature didn’t intend,” Wood said. “That rule addressed selling hunting rights and no longer simply addressed trespassing rights.

“The point is the Legislature should be the last arbiter of legislative intent, not the executive branch.”

After leaving the Legislature, former Senate President Pro Tem Bob Geddes spent about a year on the State Tax Commission, which produces gobs of rules. Now a lobbyist for Farm Bureau and Monsanto, he says putting the power in the constitution would add punch to legislative oversight.

“This will require agencies to more thoughtfully consider before they bring rules to the Legislature,” Geddes said.

Dan Popkey: 377-6438, Twitter: @IDS_politics

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