In defense of the bureaucracy | Opinion

Agencies provide subject matter expertise, and the Legislature can rein them in if need be

June 2, 2021 6:06 am

The Minnesota State Capitol in St. Paul as the sun sets on Election Day, November 3, 2020. Photo by Tony Webster.

Thirty years ago, my dad missed a very important turn. Driving my mother to the hospital, and perhaps owing to the end-of-May legislative session, he was fatigued and dwelling on last-minute legislative work for his state agency. Fortunately, the missed turn did not preclude a healthy baby boy from being born, a “session baby.” So when — as this session baby — I hear arguments for switching to a full-time Legislature, I hesitate to accept that the switch is needed to solve the Legislature’s recent purported trend of being unable to finish when the state Constitution mandates. 

And working on rulemaking as a state employee, I view even more skeptically the additional argument that a full-time Legislature would better hold agencies more accountable, as this legislative session demonstrated that agencies are already held accountable in various ways by both the legislature and public.

One issue in the legislative spotlight this year, rife with legislative complaints about accountability, has been the so-called clean cars rule from the Minnesota Pollution Control Agency (PCA). Some believe that the Legislature should override the PCA’s subject-matter expertise and legislatively delegated statutory authority and either block the rule or write the rule’s standards into statute. 

Yet previous Legislatures have detailed the process that the PCA must use to adopt its rule, a process that rests on standards dating back to the 1940s. Major legislative changes to the process occurred in 1957, 1975, 1995 and 2001. Each of these reforms served to uphold and further two main tenets: agency accountability and transparency.

The clean cars rule exhibited how this process — rulemaking — engenders agency accountability and transparency, as the rules garnered about 10,000 comments — including commenters from outside Minnesota — during the formal rulemaking process. And the PCA further showed an overall exceptional effort to inform and involve the public by: 

  1. holding public informational sessions before formally proposing the rule;
  2. developing a clear and engaging website written in plain language; and
  3. meticulously categorizing and responding to public comments before, during and after the rule hearing.

Then the PCA’s rule had to undergo a stringent legal review from the Office of Administrative Hearings (OAH), a nonpartisan state agency of attorneys and administrative law judges. Since 1975, OAH has consistently demonstrated that rulemaking — and its substantive legal and procedural requirements — efficiently functions to fill in legislative policy gaps. And during the pandemic, OAH has increased its efforts to hold agencies accountable to the Legislature and public by ensuring that virtual rulemaking hearings are accessible and involve an engaged public.

Even after going through rulemaking, the PCA is still accountable to the Legislature, as the environment omnibus bill is being held up over legislator requests to delay the rule. And the Legislature could still: 

  1. hold hearings on the rule; 
  2. pass legislation prohibiting or modifying the rule; or 
  3. pass a resolution delaying the rule for a year, a tactic that was recently done in 2018 on a Department of Agriculture rule. 

Some Republican legislators have shown similar creativity in holding other agencies accountable. For example, Republicans stated that they would cut the Attorney General’s budget proportionally for every fine the office levied for business-related restrictions during the pandemic. This legislative power of the purse is a robust tool that holds agencies accountable, and combined with the Legislature’s law-making power, reinforces the Legislature’s significant role within the three government branches.

In addition to the Legislature and OAH are two other strong, interlocking groups that already help hold agencies accountable. One group is the media, which is highly effective at shining a light into state government. Not only do the media’s muckraking stories make agency actions noticeable to the public and the Legislature, but they can often lead a special state office to more deeply investigate and report on agency actions. 

That would be the Office of Legislative Auditor, which produces the best-written state-level government documents and has a stellar record of holding agencies accountable. Many of its reports spur legislative change or agency rulemaking actions. Along with the media, the office sparks the public and Legislature to strive for positive change.

So whether through rulemaking, legislative law-making power, or the media, it is difficult to imagine how a full-time Legislature could provide even more accountability. Arguably, too much second-guessing could erode the biggest benefit agencies provide: Extensive subject-matter expertise and a dedicated commitment to serving Minnesotans.

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Ian Lewenstein
Ian Lewenstein

Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone.