BOISE — Three weeks into the 2020 legislative session, the Idaho House and Senate continue to search for an acceptable resolution to their administrative rules dispute.
The disagreement hasn’t had any apparent effect on day-to-day activities so far, despite pre-session speculation that it would undermine bicameral cooperation.
However, it remains a source of irritation for House Republican leaders, who have been pushing for change. They say their caucus is unwilling to abide by the current rules review process, which allows executive branch regulations to be implemented with the consent of just one legislative chamber.
House Speaker Scott Bedke, R-Oakley, noted that the Idaho Constitution says “the Legislature” gets to review and “approve or reject, in whole or in part,” the regulations that executive branch agencies craft to implement state law.
“‘The Legislature’ includes both sides,” Bedke said. “Everything else here is done on a bicameral basis, except for this.”
Rules that create a new agency fee, for example, must be approved by both the House and Senate. By contrast, rules that implement policy bills — which may impose even greater costs on Idaho citizens and businesses than fee rules — only need the approval of one chamber.
“Rules have the full force and effect of law,” Bedke said, so they should be approved by both chambers.
Bedke and Senate President Pro Tem Brent Hill, R-Rexburg, thought they had a possible compromise earlier this year. The proposal would have required agencies to conduct additional “negotiated rule-making” for any regulation that lacked the support of both the House and Senate.
Negotiated rule-making is a process of engaging interested stakeholders in crafting a rule. The intent of the compromise was to give the agency more time to “get it right” before the rule took permanent effect.
Bedke was initially optimistic the proposal would be adopted. Given the lukewarm response in the Senate, though, that’s no longer the case.
“I’m not confident the Senate will change our joint rule, which allows one-sided acceptance (of the regulations),” he said.
Senate Majority Leader Chuck Winder, R-Boise, was more hopeful. He noted that the two chambers have cooperated well on the rules review process so far this session, with more communication and coordination between committees than there has been in the past.
“I’m still optimistic that something can be worked out,” he said. The Senate Republican caucus “has authorized leadership to try and develop a process that they can live with. That’s going on right now. I’m hopeful that, before the week is out, we’ll have something we can share (with the caucus).”
Speaking just for himself, Winder said he wants some assurance that rules won’t be rejected for superficial reasons.
“I believe there should be a fairly high standard for what constitutes reason to reject a rule,” he said.
House Minority Leader Ilana Rubel, D-Boise, said her caucus doesn’t share Bedke’s concerns about the rules review process.
“I think we’d just as soon stay with the one-sided approach we have now,” she said. “From my perspective, we have a lot of good people in our agencies, and they work with industry and the experts to produce these rules. I’d rather not erect more barriers to adopting them.”
Rubel said there are times when “some very good rules” get struck down by the House, only to be salvaged by the Senate.
She specifically referenced the public school science standards, which the House Education Committee rejected repeatedly because of concerns about how climate change and environmental issues were presented.
Rubel also noted that the House State Affairs Committee, earlier this year, rejected all of the rules governing the Idaho Human Rights Commission, which handles complaints of discrimination in employment, housing and public accommodation.
The current dispute is a spillover from the 2019 session, when the House took the unprecedented move of rejecting the “going home” omnibus rules bill. As a result, all agency rules technically expired at the end of the fiscal year.
Agencies bridged the gap by proposing a long list of temporary rules — such as the Human Rights Commission regulations. The Legislature is now reviewing those rules, to decide which should become permanent.
Bedke said House Republicans still want to resolve this dispute — but the resolution necessarily involved the Senate giving ground and being willing to change the status quo.
Barring that, he said, “I don’t think the House will hold its nose and vote for a going home bill, as per usual.”
William L. Spence may be contacted at email@example.com or (208) 791-9168.