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S. Hrg. 115–188 

IMPROVING OVERSIGHT OF THE REGULATORY 

PROCESS: LESSONS FROM STATE LEGISLATURES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

OCTOBER 26, 2017 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

CHRISTOPHER R. HIXON, Staff Director 

MARGARET E. DAUM, Minority Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

JAMES LANKFORD, Oklahoma, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

MICHAEL B. ENZI, Wyoming 

STEVE DAINES, Montana 

HEIDI HEITKAMP, North Dakota 

THOMAS R. CARPER, Delaware 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

JOHN CUADERES, Staff Director 

JAMES MANN, Counsel 

ERIC BURSCH, Minority Staff Director 

ANTHONY PAPIAN, Minority Professional Staff Member 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 2 

Senator Carper ................................................................................................. 16 

Prepared statement: 

Senator Lankford .............................................................................................. 27 

Senator Heitkamp ............................................................................................ 29 

WITNESSES 

THURSDAY, OCTOBER 26, 2017 

Hon. Scott Bedke, Speaker of the House of Representatives, State of Idaho ..... 4 

Hon. Joshua A. Boschee, Member of the House of Represenatives, Legislative 

Assembly, State of North Dakota ....................................................................... 5 

Hon. Arthur O’Neill, Member of the House of Representatives, General Assembly, State of Connecticut ............................................................................... 9 

ALPHABETICAL LIST OF WITNESSES

Bedke, Hon. Scott: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 30 

Boschee, Hon. Joshua: 

Testimony .......................................................................................................... 5 

Prepared statement with attachment ............................................................. 34 

O’Neill, Hon. Arthur: 

Testimony .......................................................................................................... 9 

Prepared statement with attachments ........................................................... 47 

(1) 

1The prepared statement of Senator Lankford appears in the Appendix on page 27. 

IMPROVING OVERSIGHT OF THE 

REGULATORY PROCESS: LESSONS FROM 

STATE LEGISLATURES 

THURSDAY, OCTOBER 26, 2017 

U.S. SENATE, SUBCOMMITTEE ON REGULATORY, AFFAIRS AND FEDERAL MANAGEMENT, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

342, Dirksen Senate Office Building, Hon. James Lankford, Chairman of the Subcommittee, presiding. 

Present: Senators Lankford, Daines, Heitkamp, Carper, Hassan, 

and Harris 

OPENING STATEMENT OF SENATOR LANKFORD1

Senator LANKFORD. Good morning. Welcome to today’s Subcommittee hearing entitled Improving Oversight of the Regulatory 

Process: Lessons from State Legislatures. This hearing provides an 

opportunity to do something Washington should do more often—listen. Listen and try to learn to see what States do well, especially 

when it pertains to regulations. 

Today we have three States that have found effective ways for 

their legislatures to provide oversight over State rulemaking agencies. Strong and effective legislative oversight does not mean stopping agencies from issuing rules and it does not mean we must 

have an adversarial relationship with the regulators. When regulators do not trust or work with a legislature, they push the bounds 

of their authority. This leads to lawsuits, challenging nearly every 

aspect of rulemaking, which draws out the process, creating uncertainty for individuals and our communities. 

On the other hand, as we will hear today, a cooperative relationship between agencies and the legislative body leads to more effective and efficient rules that follow legislative intent and incorporate 

the views of regulated parties. Regulators working closely with the 

legislature, results in regulations that face far fewer lawsuits from 

stakeholders. 

The onus to improve the rulemaking process is not just on the 

regulators. As legislators, we must fulfill our responsibility to actually legislate. For decades, we have fallen into the habit of passing 

legislation that is vague on the details and tell the agencies to do 
2 

1The prepared statement of Senator Heitkamp appears in the Appendix on page 29. 

the hard work and figure out how to be able to apply it. Politically, 

this insulates the legislature, and we can say that we did our part 

but the agency messed up the implementation. It is not how government is supposed to work. 

Many States, like Connecticut, North Dakota, actively review 

State regulations to ensure they follow legislative intent. Other 

States like Idaho codify State regulations after a year or they expire. This causes the legislature to take responsibility for not only 

the bills they pass but also for the regulations that are a direct result of those lost. 

When we talk about regulatory reform, I frequently hear assertions that changes to our system will result in the ossification of 

the rulemaking process, clog the courts, prevent agencies from 

issuing needed regulations, or create significant risks to health, 

safety, or the environment. But many of the ideas that we have 

considered in Committee are already being used in success on the 

State level, and I think we can learn a lot today from this, so I am 

looking forward to the conversation. 

With that I would recognize the Ranking Member, Heidi 

Heitkamp, for her opening remarks. 

OPENING STATEMENT OF SENATOR HEITKAMP1

Senator HEITKAMP. Thank you, Chairman Lankford. First I 

would like to recognize a great friend and a great legislator, Joshua 

Boschee, who is from my home State of North Dakota. I have 

known Josh for a long time, fairly long time, and while he is a tremendous legislator he is an even better person, and I will tell you 

one of the finest North Dakota could send here. So thanks so much, 

Josh, for making the trip. He is someone who does not just talk 

about making things better. He rolls up his sleeves and goes to 

work, and I am glad that he can be here today to talk about how 

North Dakota does things right there back home. 

So over the past 3 years we have been leading this Committee, 

we have spent a lot of time examining the regulatory process, from 

the basic framework of the rulemaking process to the doctrines 

that are applied in court to the nitty-gritty of how decisions are 

made on an agency level. From these examinations legislators have 

flowed—legislation has flowed, trying to adopt different ideas that 

have been discussed in those hearings. 

What we have not done enough of is look beyond the process in 

Washington. This hearing is a great way to learn about the activities of our partners in governance, on the States, to learn about 

how they have tackled many of the same questions that we have 

considered in this Committee, and to basically let the 50 laboratories of government work and inform some of the practices that 

we do right here. 

If anyone has been following this Committee, they know that frequently I ask about the intersection between Federal regulation 

and State regulation, because a lot of challenges that we have here, 

for overregulation, are duplicative regulation, or inconsistent regulation is really that push between State and local regulation and 

Federal regulation. And a lot of us believe that if the State is al-
3 

ready protecting public health and safety, that that is the level at 

which those institutions are most accountable. 

And so we definitely want to hear not only your opinion about 

what you do but maybe some of the frustration about the duplication that you see in regulatory effort with Federal regulation. 

And so with that, Mr. Chairman, congratulations. This is a great 

opportunity for us to learn a lot more about how things could work 

better and how we could work better with State regulators. 

Senator LANKFORD. That is great. Thank you. At this time we 

will proceed with testimony from our witnesses. First up we have 

Mr. Scott Bedke. He is the Speaker of the Idaho House of Representatives, a position that he has held since 2012. He is serving 

his ninth term in the Idaho House, representing the 27th District. 

Speaker Bedke is a fourth-generation rancher from Oakley, Idaho. 

Following him will be Mr. Joshua Boschee, who is representing 

North Dakota’s 44th District in the North Dakota House of Representatives since 2013. He serves on the Government Finance 

Committee, Workers’ Compensation Review Committee, and Administrative Rules Committee. Representative Boschee is a resident of Fargo, North Dakota, and I fully expect to keep a stroke 

count of how many times I hear, between the two of you, ‘‘oh yes, 

you betcha’’ today. [Laughter.] 

So we will see if we can increase the number of times on that. 

Senator HEITKAMP. Ya. 

Senator LANKFORD. Third up will be Mr. Arthur O’Neill. He is 

representing Connecticut’s 69th District in the Connecticut House 

of Representatives since 1988. He has served as the Chair of the 

Regulations Review Committee as well as the Ranking Member of 

the House Appropriations and Judiciary Committees. Representative O’Neill is a resident of Southbury, Connecticut. Thank you for 

being here as well. 

It is a tradition of this Committee and the custom to be able to 

swear in all witnesses that appear before us, so I would ask all 

three of you to please stand and raise your right hand. 

Do you swear the testimony you will give before this Subcommittee will be the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Mr. BEDKE. Yes. 

Mr. BOSCHEE. Yes. 

Mr. O’NEILL. Yes. 

Senator LANKFORD. Thank you. You may be seated. Let the 

record reflect all the witnesses have answered in the affirmative. 

We do have a timing system. You can see a clock in front of you. 

As you start that will count down 5 minutes. We are not going to 

be strict on that but we do want to leave as much time as we can 

for questions, as Senator Heitkamp and I will pummel you with 

questions as soon as you finish up your oral testimony. 

So, Speaker Bedke, you are up first. 
4 

1The prepared statement of Mr. Bedke appears in the Appendix on page 30. 

TESTIMONY OF THE HONORABLE SCOTT BEDKE,1 SPEAKER 

OF THE HOUSE OF REPRESENTATIVES, STATE OF IDAHO 

Mr. BEDKE. Thank you, Senator, and Senator Heitkamp. Thank 

you for this opportunity to testify today. 

Legislative review of Executive Branch rules is a topic of great 

and recent interest in Idaho. Over the past 25 years or so, the 

Idaho Legislature’s authority to review Executive Branch rules has 

been the subject of Supreme Court cases and no less than two proposed constitutional amendments placed before the voters of our 

State. Within the past year, at the 2016 general election, the voters 

of Idaho approved a constitutional amendment providing that the 

legislature has the constitutional authority to review and approve 

or reject Executive Branch rules. As a result, the Idaho Legislature 

now has the constitutional authority to ensure Executive Branch 

rules are written in a manner consistent with the legislature’s intent. 

In Idaho, the legislature’s authority to review and approve or reject Executive Branch rules has been in place in one form or another since 1969. In 1978, the legislature passed a statute authorizing legislative subcommittees to meet in an advisory fashion to 

either accept or reject administrative rules. This advisory process 

evolved over time through statute to provide a more formal and enhanced legislative role. This statutory evolution provided the legislature with authority to review administrative rules and, upon 

finding a rule inconsistent with the legislative intent to reject that 

rule through Concurrent Resolution. In Idaho, Concurrent Resolutions require approval of both the House and the Senate and are 

not subject to approval of the Governor. 

In 1990, the legislature’s authority to review and reject administrative rules was upheld by the Idaho State Supreme Court in a 

closely decided decision, with a 3–2 decision. The court reasoned 

that the Executive Branch’s authority to write administrative rules 

is a power delegated to the Executive Branch by the legislature. As 

our Supreme Court has held repeatedly, only the legislature can 

make law. 

The Idaho Legislature takes its responsibility in this area very 

seriously. Each legislative session starts with an in-depth review of 

the rules proposed in the preceding year. Each legislative committee reviews the rules germane to its area of expertise and 

makes recommendations to the House and Senate as to whether 

those rules should be approved or rejected. 

The legislature has used its authority to reject rules judiciously. 

Over the past four decades, the legislature has reviewed more than 

5,000 administrative rules and has rejected approximately 300, or 

approximately 6 percent. Often a rejected rule is proposed again by 

the same Executive Branch agency the next year, but with the 

changes necessary to make the rule consistent with the legislative 

intent of the statute. In Idaho’s approach to this manner, the legislature’s review of rules does not hamper Executive Branch authority. It only assures that State agencies are following the law in the 

rulemaking. 
5 

1The prepared statement of Mr. Boschee appears in the Appendix on page 34. 

The legislature acknowledges that at times Executive Branch 

agencies may not understand or appreciate the real-life impacts of 

their proposed rules, so legislative committees and their elected officials listen to input from everyday citizens as to how a new rule 

may affect them. To reiterate, the time we take during this process 

is to listen to our citizens, and it has not resulted in sweeping rejection of administrative rules. It has, however, resulted in selective rejection of rules, constructive dialogue with the Executive 

Branch, and, ultimately, we believe administrative rules that are 

more closely aligned with the intent of the underlying statute. 

In order to safeguard the legislature’s authority to review administrative rules, and in light of the close Supreme Court decision, 

the legislature chose to put a constitutional amendment before 

Idaho voters. The amendment placed the legislature’s authority to 

review rules in the State’s constitution. Recognizing the good government quality of this proposed amendment in the 2016 general 

election, a comfortable majority of citizens voted in favor of the constitutional amendment. 

In summation, we believe that allowing Executive Branch agencies the unreviewed authority to promulgate and implement administrative rules compromises the legislature’s authority to make law 

and, consequently, strengthens the Executive Branch at the expense of the Legislative Branch. The passage of the constitutional 

amendment strengthened and more clearly defined the legislature’s 

authority to review and reject Executive Branch rules. We believe 

that this is just good government. 

Thank you, and I look forward to your questions and our dialogue. 

Senator LANKFORD. Thank you, Mr. Speaker. Mr. Boschee. 

TESTIMONY OF THE HONORABLE JOSHUA A. BOSCHEE,1 MEMBER OF THE HOUSE OF REPRESENTATIVES, LEGISLATIVE 

ASSEMBLY, STATE OF NORTH DAKOTA 

Mr. BOSCHEE. It is an honor to be with you all this morning to 

talk about the administrative rules process in North Dakota and its 

relationship with the legislative assembly. As part of my testimony, 

I have provided a background memorandum prepared by our staff 

that was used as an introductory resource for our new members 

this past September. You will find that much of the technical aspects of my testimony are pulled directly from that memorandum. 

During my time on the Administrative Rules Committee, I have 

found the process to be one that is very collaborative between administrative agencies, the regulated community, the public, and 

legislators. North Dakota has a cherished history of providing access and transparency to our State citizens when it comes to developing policies at all levels of government and authority. As parttime legislators who create, amend, and rescind statutes only 80 

days out of each biennium, we rely on our State agencies to develop 

the policies and procedures required to enact the legislative 

changes made during each assembly. 

Our State agencies, commissions, and regulatory boards are comprised of employees, elected officials, and appointed citizens who 
6 

provide technical expertise and real-world experiences that inform 

the rules being developed throughout the interim. Whether responding to a policy change made by the assembly, a new Federal 

regulation, or the dramatically changing economy North Dakota is 

experiencing, the administrative rules process continues to be one 

that allows good balance of legislative oversight and professional, 

executive independence. 

In North Dakota, the Administrative Rules Committee is appointed, each biennium, with membership of the committee including at least one of the members who served during the most recently completed regular session of the assembly from each of the 

standing committees from either the House or the Senate. The 

committee meets quarterly to review administrative rules proposed 

by State agencies, as well as boards and commissions that have authority to regulate activities within the State. 

The committee is responsible for studying and reviewing administrative rules and related statutes to determine one of three 

things: whether administrative agencies are properly implementing 

legislative purpose and intent; whether there is dissatisfaction with 

administrative rules or with statutes relating to administrative 

rules; or whether there are unclear or ambiguous statutes relating 

to administrative rules. 

All rule changes, including a creation, amendment, or repeal, 

made to implement a statutory change, must be adopted and filed 

with legislative councils within 9 months of the effective date of the 

statutory change. If an agency needs additional time for the rule 

change, a request may be made to the committee and the committee may extend that time. 

Additionally, the committee has the authority to establish standard procedures for administrative agency compliance, whether it is 

notice of requirements for proposed rulemaking, establishing a procedure to distribute administrative agency filings, and to receive 

notice of appeal. 

A key component to our State’s rulemaking process includes the 

Attorneys General (AG) review of agency rules. The AG may not 

approve a rule as to legality if the rule exceeds the statutory authority of the agency or the rule is written in a manner that is not 

concise or easily understandable, or procedural requirements for 

adopting the rules are not substantially met. 

Agencies have the authority, with approval of the Governor, to 

adopt rules on an emergency basis, because of an imminent peril 

to public health, safety, or welfare; or because a delay is likely to 

cause loss of revenue appropriated to support a duty imposed upon 

an agency; or when reasonably necessary to avoid the delayed in 

implementing an appropriations measure; or when necessary to 

meet a mandate by Federal Government. 

An emergency rule may be declared effective no earlier than the 

date of filing notice of rulemaking with the legislative council. An 

emergency rule becomes ineffective if it is not adopted as a final 

rule, through the formal administrative rules process, within 180 

days after its declared effective date. An agency making emergency 

rules is required to attempt to provide notice of the emergency 

rules to persons the agency can reasonably be expected to believe 
7 

may have a substantial interest in the rules, as well as notification 

of the Chairman of the Administrative Rules Committee. 

North Dakota’s administrative rules process began in 1941, as 

the first State to adopt an Administrative Procedure Act (APA), 

which was based partly on an earlier tentative draft of what became the 1946 Model State Administrative Procedure Act approved 

by the Commission on Uniform State Laws. 

Before 1977, agencies were authorized to adopt administrative 

rules, but there was no compilation or central source of these rules. 

During the 1977 session, the assembly enacted statute which requires the legislative council to compile those rules through a code. 

Two years later, in 1979, the legislative assembly enacted statutes 

providing for legislative review. And finally, in 1981, the legislative 

assembly authorized the committee to make formal objections to 

agency rules. If the committee objects to a rule because the committee determines the rule to be unreasonable, arbitrary, capricious, or beyond the authority delegated to the adopting agency, 

the committee may file the objection in certified form with the legislative council, with the burden falling upon the administrative 

agency to determine whether or not it meets statutory regulation. 

In 1995, the legislative assembly enacted statutory authority for 

the committee to void all or any portion of the administrative rules 

on any of the following grounds: (a) the absence of statutory authority; (b) emergency relating to public health, safety, or welfare; 

(c) a failure to comply with express legislative intent or to substantially meet the procedural requirements of our century code, chapter 28, regarding the adoption of rules; (d) a conflict with State law; 

(e) arbitrariness or capriciousness; and (f) a failure to make a written record of its consideration or written and oral submissions respecting the rule during the hearing process and comment period. 

During the 23 years the committee has had the authority to void 

rules, only eight rules have been voided. 

Based on my experience, when the committee is considering the 

action of voiding rules, our practice is that we will table the section 

of rule of concern until the next meeting to allow the agency and 

any of the concerned public, whether it is individual citizens or the 

regulated community, ample time before the next meeting to come 

to an amicable agreement. This is rare and often comes up when 

the regulated community impacted by the new rules has strong objections that fall under one of the previously Stated grounds. It has 

been my experience that the agency and concerned stakeholder 

often find a resolution to the rules that are then presented to the 

next committee meeting. 

If the committee finds a rule to be void, the legislative council 

has to provide written notice to Legislative Management. Within 

14 days of receipt of the management, the adopting agency may file 

a petition with the Chairperson of Legislative Management for review by our legislative management for final decision. If the agency 

does not file a petition, the rule becomes void on the 15th day after 

adopting agency received notice from council. If, within 60 days 

after receipt of the petition, the adopting agency and Legislative 

Management has not disapproved the finding, the rule is found 

void. 
8 

In 2005, the legislative assembly enacted a bill providing that except for emergency rules, administrative rules do not become effective until after they have been reviewed by the Administrative 

Rules Committee. And in 2011, a final change was made that if an 

agency representative does not appear for a scheduled meeting, the 

rules will be held over to the next meeting. 

Since 2015, each adopting agency has been required to provide 

proof to the committee with written information demonstrating 

that the agency complied with the processes related to notice of 

hearing, as well as written statements for people that objected, either orally or through written form. 

Statute does allow the committee to change a rule after consideration of rules by the committee if the agency and the committee 

agree to rule changes is necessary to address any of the considerations for which the committee may find a rule to be void. This allows an agency to change an administrative rule when the committee expresses concern, and in those circumstances the agency is 

not required to commence a new procedure. If a rule change is 

agreed on by the committee and the agency, the rule must be reconsidered. If neither party objects to it, the rule has the opportunity to become effective as scheduled. 

Because the legislative assembly recognized that there are constitutional questions about the Administrative Rules Committee 

voiding rules, an alternative amendment is on the books which will 

take effect if the State Supreme Court rules the authority to void 

rules is unconstitutional. The alternative amendment is the same 

in all respects as the amendment allowing the committee to void 

rules but the alternative, rather, provides an opportunity to suspend the rules until the next legislative session, for approval by the 

legislative assembly. 

The Administrative Code, which contains all rules adopted by 

agencies, are subject to the Agencies Practices Act. It is published 

by the legislative council and has 129 titles. In North Dakota, 96 

of those titles contain rules of administrative agencies with 16 

agencies voluntarily publishing their rules within our code. The 

code is distributed free to each county auditor, to the Supreme 

Court justices, district court judges, and certain agencies, as well 

as can be accessed online through our legislative website for free 

by the citizens. 

Based on our nearly 80-year evolution of the administrative rules 

process in North Dakota, I am confident that our process is one 

that works well for our State. Changes have been made gradually 

over time and have been implemented with little friction between 

the agencies that are developing the rules and the legislative assembly. The only concern I have with our State’s process is ensuring that we continue to provide ample notification and time for citizens to participate in the process, as subscriptions to print newspapers decline, which is our formal process of notice, and we become more dependent on electronic means of official posting. 

This concludes my prepared testimony and I am happy to try and 

answer any questions the Committee may have. 

Senator LANKFORD. Thank you. Representative O’Neill. 
9 

1The prepared statement of Mr. O’Neill appears in the Appendix on page 47. 

TESTIMONY OF THE HONORABLE ARTHUR O’NEILL,1 MEMBER 

OF THE HOUSE OF REPRESENTATIVES, GENERAL ASSEMBLY, STATE OF CONNECTICUT 

Mr. O’NEILL. Thank you, Mr. Chairman, and good morning 

Ranking Member Heitkamp, Chairman, and Members of the Committee. Thank you for the invitation to testify. 

I am a 27-year veteran of the Legislative Regulations Review 

Committee (LRRC) of Connecticut and have previously served 6 

years as co-Chairman of the committee. 

The Connecticut General Assembly first began reviewing regulations in 1945. The Secretary of State was required to submit to 

each General Assembly all the regulations promulgated during the 

preceding biennium for its study, legislature meeting only biennially. Any regulation which the General Assembly disapproved was 

void and not reissued. 

In 1963, the first Regulations Review Committee was established 

by statute. This committee was and is a bicameral, bipartisan committee. It met during the interim between the sessions and could 

only disapprove regulations that were already in effect. This approval voided the regulation unless the General Assembly overrode 

the committee’s action at its next session, but the General Assembly was not required to act on voided regulations. 

In 1971, the current Legislative Regulations Review Committee 

was created pursuant to the Uniform Administrative Procedures 

Act (UAPA), which we adopted. Under the 1971 law, the committee 

was authorized to review proposed regulations. The committee’s 

disapproval of a regulation in 1976 led to a lawsuit challenging the 

legislature’s role on constitutional grounds, alleging a breach of the 

separation of powers principle. Connecticut Superior Court ruled 

that the committee’s activity was unconstitutional. The Supreme 

Court overturned that lower court decision but they did so on technical grounds, leaving the issue of constitutionality unresolved 

until 1982, when a constitutional amendment, approved by the 

electorate, became effective and confirmed the legislature’s authority to consider and disapprove administrative regulations. 

The Regulation Review Committee was established to ensure 

proper legislative review of proposed agency regulations. Administrative regulations have the force of law; therefore, closer scrutiny 

and control by the Legislative Branch is clearly in the public interest to ensure that regulations do not contravene legislative intent. 

The committee, which meets monthly, consists of 14 members, 6 

Senators and 8 House members. There are equal numbers of Republicans and Democrats. There are two co-chairs, a Republican 

and a Democrat, one from each chamber. Each term the co-chairs 

alternate, so the Senator becomes the member of the opposite party 

and the House member does the same thing. This is a system of 

subcommittees which usually consists of two members, a Republican and a Democrat from each chamber. 

The subcommittees are assigned to specific agencies. The subcommittees review, and if necessary, make changes to the regulations. The regulations and other required documents are provided 

to each committee member at least 1 month prior to the meeting 
10 

at which the action is to be taken. Legal opinions and recommendations from our legal staff and fiscal analysis from our fiscal staff 

are provided to us 10 days before such meeting. 

The committee can take the following types of action: approve in 

whole or in part; approve with technical corrections; reject without 

prejudice; or disapprove. Approval in part allows the committee to 

make deletions. When deletions are made, sections or subsections 

are deleted, not individual words. The committee cannot add words 

to a regulation. 

Technical changes are sometimes needed to correct spelling, 

punctuation, statutory references, and matters of style. Frequently, 

regulations are rejected without prejudice for lack of statutory authority. Rejection without prejudice requires the agency to resubmit 

the regulation with appropriate corrections within either 35 or 65 

days, depending on whether the regulation is mandatory or permissive. There is no limit to the number of times that a regulation can 

be rejected without prejudice. 

Disapproval is rare and signifies the committee’s interpretation 

that the proposed regulation is without statutory basis. Disapproval requires the regulation to be sent to an appropriate committee of the legislature for consideration during the next legislative session. The General Assembly then has the option to sustain 

or reverse the Regulation Review Committee’s action. Inaction by 

the legislature sustains the action of the committee. 

The committee meets as necessary to consider emergency regulations. 

The committee functions as intended. It is effective as a mechanism to protect the legislative intent from Executive Branch dilution or distortion. It provides an opportunity for individuals interested in or affected by a regulation to influence the process without 

the time and expense of litigation. The committee’s bipartisan and 

bicameral structure enhances its effectiveness. 

Some agency staffers who must deal with the Regulations Review 

Committee do not want to deal with the committee and the additional process that we require. I consider that to be evidence of the 

effectiveness of the committee in defending the authority of the 

Legislative Branch. 

And I welcome your questions. 

Senator LANKFORD. Thank you, all three of you. 

I will recognize Ranking Member Heitkamp. 

Senator HEITKAMP. This is always a challenge because there are 

two functions, right? There is the oversight function, which we, as 

legislators, all believe is absolutely critical, and there is not any of 

us who have ever been legislators who have not said, that is not 

what we intended. I do not know why they are doing it that way. 

I mean, it seemed clear when we passed it. Why is not it clear to 

them? 

But on the other side is this question of separation of powers, 

and whether, in fact, the Legislative Branch, being so critically involved and so strategically involved in regulatory analysis and potentially rewrite, that it flips over and results in a breach of that 

all-important separation of powers doctrine that is fundamental to 

State constitutions, fundamental to Federal constitutions. 
11 

So I want to explore kind of that line, and both of you—there is 

two of you who have basically said your States have confronted 

constitutional challenges, and the end result was a constitutional 

amendment in both cases—correct?—in the case of Idaho and Connecticut. 

Can you just explain to me the various constitutional provisions 

you did enact, whether they were tailored very narrowly or whether it weighed on the side of greater participation of the legislature 

in implementation of legislation, or whether they really just helped 

clarify what, in fact, was the oversight responsibility? 

And we will start with you, Representative Bedke. 

Mr. BEDKE. We were very careful in drafting the words in the 

constitutional amendment. I kind of glossed over that we passed it 

on the second try. What was such old hat for the legislature, if you 

will, turned out to be not, so in 2014, the voters narrowly disapproved the constitutional amendment, but there was zero explanation there. Like I said, what seemed to be self-evident to us was 

obviously not to the general public. 

I headed up a statewide campaign to go, to all the newspapers 

and all the media statewide, and explain what we were doing. So 

we were very careful. We believed that the line that we did not 

want to cross was, we could accept or reject, and when we—and the 

word says ‘‘in whole or in part,’’ but we—but that ‘‘in part’’ mean 

subsections of the rule. 

So we stopped short of amending, we stopped short of the Meade 

v. Arnell case, upon which is the Idaho Supreme Court case which 

was the basis for all this, was clear, and we attempted to just codify that ruling and not overreach, because of all the reasons that 

you stated earlier. So we were very careful not to cross that line 

and we feel like we found the balance in there. 

Now, the Executive Branch, through the Governor, objected 

to—came out with a campaign of his own, as did the State attorney 

general, saying that the legislature was overreaching. But we were 

very careful to delineate that line and not overstep, and we believe 

that it has resulted in the dynamic give-and-take that there needs 

to be at the State level. When the regulated public comes into the 

committee to testify about how it is affecting them, then their advocates are their elected officials, not the Executive Branch agency— 

and I mean no disparagement to those that work there, but they 

are not elected to represent the regulated public. 

And so that insertion of having the elected officials usher that, 

the regulated public through the rules, which are laws, we believe 

holds us accountable as elected officials and gives the citizens a 

voice in the process, rather than just passing vague laws, passing 

it off to the Executive Branch, and wishing everybody good luck. 

Senator HEITKAMP. Representative O’Neill, can you just explain 

kind of the constitutional development of your process? 

Mr. O’NEILL. Sure. As I mentioned, we had a court case, Maloney 

v. Pac. The lower court said we were unconstitutional, what the 

committee did, and the supreme court overruled it, but as I said, 

on technical grounds. So the constitutionality issue was never really resolved by the supreme court. And so very shortly after that decision came down is when the constitutional amendment was 

passed by the legislature and voted for by the public. 
12 

And what that did was say a couple of things, one of which was 

that we clearly had the right to delegate the lawmaking function 

if we chose to administrative agencies, and the second thing was 

we also have the power to review and, if need be, reject, disapprove 

the regulations that were adopted by the agency. 

It was a very short amendment. It was a broad grant of authority, really, to the legislature to pass laws to implement that constitutional provision. And so what it really did was, I believe, and 

it was intended to do at the time was to ratify the system that we 

had already created up until that point and to allow for its further 

development because it would be a clear constitutional basis for the 

committee to do what it was doing, and I think that is pretty much 

what it has done. I did not really change the way the committee 

was structured or the way the committee operated. 

Senator HEITKAMP. Just legitimized it? 

Mr. O’NEILL. I am sorry? 

Senator HEITKAMP. Just legitimized it? 

Mr. O’NEILL. Just legitimized it. 

Senator HEITKAMP. I do not want to belabor this but I want to 

explain the challenges that we have, because there are Federal 

court cases that talk about so-called legislative vetoes, and whether 

that is, in fact, in violation of the continuum of responsibility under 

separation of powers. And so we do not have the luxury of a process that is very accessible for changing our Constitution. And so we 

have to make sure that when we are drawing those lines that we 

are staying well on the side of legitimate oversight in terms of our 

legislative process. 

I, as a State agency, had both, as attorney general and as tax 

commissioner, spent a fair amount of time in front of the Administrative Rules Committee, justifying the rules. I think that having 

that process—I will tell you honestly—made us much more conscious of our outreach, much more responsive to concerns, and 

maybe even resulted in amendments, because we knew we were 

going to have that level of immediate accountability, not just judicial review but legislative review. And so I am someone who has 

seen that process work, both as an agency head and as somebody 

who fully participated. And so with that said, we are trying to figure out how your lessons, which seem to work really well in your 

States, how that can be kind of adapted and adopted here. 

One thing I will remarks, it is interesting, in Idaho, I mean, you 

are basically a one-party government. I mean, there is not a very 

robust second party in Idaho. That is not true of Connecticut. Obviously, the Governor frequently can be, and is a Republican. I do not 

know when the last Democratic Governor you had, or Democratic 

Party legislature. 

Mr. O’NEILL. It was Cecil Andrus, and so it has been a while, but 

there—of course, having a large majority party gives us the luxury 

of fighting amongst ourselves. And the Democrats, the minority in 

Idaho, they are not shrinking violets, and, if I may, most of our 

State constitutions—well, all of our State constitutions, with regard 

to the Article I provisions in the United States Constitution, I 

mean, they read very similarly. And, arguably, we have not let 

those Article I powers erode. 
13 

Senator HEITKAMP. Except in order to augment those Article I 

powers, you had to pass a constitutional amendment which is the 

point that I am trying to make, which is you may not have had, 

in Connecticut, you had a process, you were continuing that process 

under kind of color of authority. You clarified the authority and in 

your case, you responded to a critical and otherwise prohibitive 

court case. In North Dakota, we have not had that, in part, I think, 

because you have not reversed a lot of rules. And so we are just 

trying to figure it out. 

Representative O’Neill can you talk a little bit—and I know I am 

taking up some time, but I know there is not a big—we are the 

nerds here. What can I tell you? Can you explain how you believe 

that the kind of party balance that you have in Connecticut affects 

your ability to do this work or whether you see challenges? 

Mr. O’NEILL. Well, as I said, I think the bicameral, bipartisan 

nature of the committee helps it, because there is not the sense 

that it is one party that—let us say the majority party also is the 

majority party on the committee, would give the sense that this is 

basically coming from a partisan perspective. One of the little 

watch-words, phrases that we sometimes hear is that the other 

party is the opposition; the Executive Branch is the enemy. So we 

kind of—and that is spoken by both Republicans and Democrats 

because we all have similar experiences in trying to deal with an 

Executive Branch agency that is being recalcitrant. 

So I think that we have a very partisan system. I mean, we do 

things on a very partisan basis in Connecticut. I am surprised that 

sometimes when I talk to people from other States that the partisanship is not as intense. We can be bipartisan as well. We have 

institutionalized it in some places, such as this committee, and it 

occasionally occurs that there will be a 7–7 split along party lines, 

but that is fairly rare. 

And so most of the time the committee speaks with one voice, it 

is a unanimous decision, and the Executive Branch, whether it is 

the Governor or some commissioner who is trying to do something, 

or the treasurer because we review their regulations as well, and 

so on, gets the impression, this is the entity that is speaking on behalf of the legislature, as an entity. 

Senator HEITKAMP. Yes. I just want to make this point before I 

turn it over. I think some of the hesitation is this idea that the executive gets elected, different political party, and then the Legislative Branch, and, therefore, there is an automatic way that you can 

limit the ability of the executive, who is of a different political 

party, to actually make decisions that are executive in nature and 

really executive. 

What is interesting about your process—and we have been kind 

of chatting a little bit about it up here—is it really is about a legislative prerogative versus an executive prerogative, and building 

that support for the overreach in the executive. It is not a political 

thing. It really is a thing that challenges the relationship between 

legislative and executive, regardless of party. 

Mr. O’NEILL. Yes. If I could just point out, in the years that I 

have been on the committee, we had a Democratic Governor, Bill 

O’Neill, when I first got on, Lowell Weicker, former United States 

Senator, was Governor as an independent for 4 years, we had Re-
14 

publicans and then now we have a Democratic Governor, and the 

relationship between the committee and the Executive Branch has 

been pretty much the same consistently throughout all those different people, with their different political perspective and so forth. 

Senator LANKFORD. So I have to ask the question, you said the 

relationships have been pretty consistent. Is that consistently bad 

or consistently good? 

Mr. O’NEILL. I would say generally it has mirrored the relationship that the Governors have had with the legislature, in general. 

Senator LANKFORD. So if they are contentious about the legislature, it is a contentious committee as well? 

Mr. O’NEILL. Correct. 

Senator LANKFORD. Because one of the challenges here in the 

conversation is, it is no grand secret to the world that we have this 

very adversarial relationship at times with regulatory bodies here, 

where a law comes out and then, in our situation, not uncommon 

to have a year or 2 or 3 years later the regulations that mirror up 

to that law come out, and they seem to be completely disconnected 

from the statute itself. And then you literally have a new legislature, that was not the one that voted on it. It is now past an election cycle, there is a new legislature there, and this hostile connection between was this the intent of Congress? Was this not the intent of Congress? 

So my question for all three of you, if you want to just give me 

a quick answer on it, has this process improved the dialogue between the regulators and the legislature or have you seen a difference on that, or you all have done it so long you have not seen 

a real difference on it? 

Mr. O’NEILL. I think the dialogue has improved compared to 

what it used to be. Before this committee was really activated in 

the early 1960s, and even as late as the 1980s, there were a lot 

of secret regulations. Regulations were passed. You could not find 

them anywhere. The regulation books were years behind, in terms 

of publication, and they were very hard to get a hold of. They were 

not really even available in law libraries. Now we have everything 

online. I mean, that is obviously the electronic revolution that has 

facilitated that. 

But I think the committee has produced, and embedded into the 

process that the Executive Branch deals with, the idea that they 

are going to have to explain all of this in public and answer, and 

even to the point where agencies will withdraw regulation—I did 

not mention that but they can withdraw regulations up until the 

very moment we take it up, because they are afraid that it will get 

rejected, and that is considered to be a mark of dishonor, so to 

speak, within the agency. 

Senator LANKFORD. That would be very helpful. By the way, 

there are secret regulations in the Federal Government as well, 

among many, because it is a guidance, where a regulated entity, 

a business, whatever it may be, will contact their regulator and 

will say, ‘‘I need some advice on this,’’ and they will give them oral 

counsel on it but will not put it in writing, and that becomes a big 

issue as well, because then it depends on your regulator, what your 

regulations are. 
15 

So I want to complete the two of you to able to ask the relationship between the regulators and their legislature. 

Mr. BOSCHEE. In our State, in North Dakota, very similar to 

Idaho, it is a very strong one party across State agencies as well 

as within the legislature, and we are more representative of the 

fact that there is an equal—there is a proportionate number of 

Democrats on the committee as there are Republicans, based on 

the elected body. 

And so the relationship, I think, is pretty good and has continued 

to be good, and part of that, I think, is because as a legislative body 

we have implemented the system. We have created the rules of the 

administrative rules process. And so the administrative branch has 

to follow those rules and if they step out of line of the rules we 

have established, then we are in check there. And we have found 

great success there. 

Additionally, I think it is important to note North Dakota’s legislators, we often see ourselves as citizens first, legislators second. 

And so we participate in the administrative rules process not only 

as a check but also, during that hearing process, often you will see 

in the notes legislators participating in the field hearings or the 

hearing information up front. And so because of that, we are engaged with our community and the guidelines, and I think the regulators then get a good feel, especially if it is something, for instance, that has to do with agriculture community, and there are 

legislators who practice agriculture but also represent those communities, are very involved on the front end, not just waiting on 

the back end for it. 

Senator LANKFORD. Speaking as someone who has practiced agriculture as well as a legislator. Speaker Bedke, do you want to jump 

in on this, and talk about their relationships? 

Mr. BEDKE. Yes, I do. As was said, our system it mirrors North 

Dakota’s. And so, there is proportional representation on these 

committees. These actually are the standing committees that break 

themselves out into subcommittees, because all of the rules are reviewed, and most of them go right through. The ones that do not 

come back to the full committee, and based on the prerogative of 

the chairman, they will have a hearing. 

But as in North Dakota, the legislators are involved in this negotiated rulemaking that happens out in the field, because the agencies notice up their meetings, we have to promulgate some rules 

here to address this issue, and the local legislators show up. So 

they are involved in that process. 

We are a part-time legislature as well. We do meet every year. 

But, anyway, we are directly involved there. 

There is always creative tension, you might say, between the legislative intent and the Executive Branch. Regardless of party, regardless of sameness of party, there is always some creative tension, at best, that can devolve into something else, at worst. And 

so it keeps everyone honest, this back and forth. If the agency overreaches, then there is a self-governing check that happens in the 

rules review process. If the regulated agency is trying to get away 

with something or makes assertions that end up to not be true, 

then there is a check back on them, and the legislature has the 
16 

ability to say, ‘‘Yes, regulated industry, that is exactly what we 

meant, and we do support this rule.’’ 

So it balances out, and it is a custom and culture in Idaho to— 

that says this is true, good faith, negotiated rulemaking, because 

of this check and balance, that you have to come back to the legislature, and if there is anything untoward on either side of the 

table, so to speak, then that comes out in the hearing process, and 

it is corrected. And so it works well. I referenced good government. 

It is just basic good civics. It involves the elected official in the 

process. He becomes accountable to that regulated industry and becomes the advocate in the process with the Executive Branch, and 

it makes us write tighter laws, and then be involved to the final 

implementation of the rules out with the regulated public. 

Senator LANKFORD. Yes, accountable all the way to the end. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thanks. My first question would be for Mr. 

O’Neill. Are you from Connecticut? 

Mr. O’NEILL. Yes, sir, I am. 

Senator CARPER. Why do you always have such good women’s 

basketball teams? Seriously. 

Mr. O’NEILL. Well, I would have to give a lot of the credit to the 

coach, Geno Auriemma, and once you have developed a great reputation. But there are a lot of good women basketball players in 

Connecticut. My daughter was a star at Trinity at one time. 

Senator CARPER. No kidding. All right. 

On a more serious note, I am a recovering Governor, and had the 

opportunity to be Chairman of the National Governors Association 

(NGA) at one time, and I used to love to come before Congress and 

testify. And because Delaware is so close by, and I was the Vice 

Chairman and the Chairman, I got called on quite a bit. I love to 

do that. And you know why? Because it is the issues that they were 

discussing on most days, I actually knew more than they did about 

them. And it was just very helpful. 

And today it is kind of—I am reminded of that situation because 

you all know a lot more about this than some of us. And I have 

always said that the States can be laboratories of democracy, and 

this is a case where you all can really help us out, and I think help 

out the country. 

I have not read verbatim your testimonies but I am going to ask 

each of you to just give me maybe the two most important points 

in your testimony so that I can just mull that over, and then I have 

a couple of questions. But just give me the two most important 

points in each of your testimonies. Mr. Bedke. 

Mr. BEDKE. Two important points. Number one, we have always 

done rules review, at least in recent history, since the late 1960s, 

it became the custom and culture in Idaho to do that. We always 

knew there was a separation of powers issue that we did not want 

to cross. We orient new legislators on that because you will have 

firebrands that come in and think that they can come in, that this 

is the legislature’s prerogative to rewrite the rules. We caution 

them against the—we remind them of the Supreme Court prece-
17 

dents that we have nationally as well as at the State level. And it 

was ultimately challenged by a then-Governor. 

Senator CARPER. Which one? 

Mr. BEDKE. It was Cecil Andrus in a health and welfare case. 

And so the legislature prevailed there, with a 3–2 decision, and 

that made everybody tighten up our practices for the ensuing decades. But it was such a good government practice, as we described 

earlier, that we thought we should codify that decision in the 

State’s constitution, and that is what we ultimately did, and it is 

working. That is my take-home message. 

Senator CARPER. All right. 

Mr. BEDKE. And I believe, as seems to be the prevailing sentiment here, that there are some things that the Federal Government could do that would emulate this process, and it may iron out 

some things. Frankly, you all are not passing a lot of laws. The 

laws that are—— 

Senator CARPER. I have noticed that. Good thing we do not get 

paid this year by all the bills we pass. 

Mr. BEDKE. So the interaction with the Federal Government and 

our Nation’s citizens happens at the rules and regulation and 

guideline level. And that is an abdication, I believe, of the legislative branch’s power, and we need to balance that back, and that 

will have the effect of good government. It does not predict an outcome but it just ensures a good-faith, good process. 

Senator CARPER. All right. Thank you. Mr. Boschee, Joshua, like 

in the Bible. 

Mr. BOSCHEE. Yes. Thank you, Senator, I think the two most important aspects of the North Dakota process is that we are truly 

a review process. We do have the power to void but in the 23 years 

we have had that power we have only used it eight times, and that 

is really built off of, I think, the process being one in which we are 

involved as citizens as legislators, but then also on the back end, 

for that final review piece. 

I think the second part is our flexibility throughout the process. 

We do provide the opportunity that if a rule that has been proposed 

and they are out in the field doing hearings and taking testimony 

from folks, they are able to augment those rules a little bit to accommodate those concerns that are presented, as well as at the 

committee level, we can help amend, especially if there are lastminute concerns. If things have changed in the last 90 days that 

need to be adapted, we provide that opportunity throughout our 

process. We are responsive and flexible. 

Senator CARPER. Good. I am going to come back and ask you a 

question about why only 8 times in 23 years, but I will get that 

in the next round. 

Mr. O’Neill, two great takeaway points from you, please. 

Mr. O’NEILL. Yes, I think that the greatest strength of our system is that it has been institutionalized so that everyone accepts 

it. Our most recent Governor, Governor Malloy, has been something of an exception. He has tried a couple of times to undermine 

or weaken the regulation review process but the institution, the 

legislature, has resisted those efforts, and I think it is accepted regardless of party. 

Senator CARPER. What is his motivation? 
18 

Mr. O’NEILL. I think what he was claiming was that he wanted 

to streamline the regulation process by eliminating the review 

piece, which, of course, would streamline things, and nobody would 

know, necessarily, what was going on or be able to act as a check, 

which was the whole point of the review. 

Senator CARPER. Have you talked to him about this? 

Mr. O’NEILL. Not personally, directly. I have spoken with his 

aides that bring us these proposals and things like that, and they 

have said, ‘‘Well, because we think it would make things go more 

smoothly,’’ or because he wants to deregulate a lot of things and 

wants to pass deregulatory types of regulations, repeal things, and 

when repealers are done we look at them as well. So that was suggested as the reason why he was trying to do that. 

Senator CARPER. In Delaware, when our legislature was in session, we were in session off and on from January 1 through June 

30th, and they were out for weeks at a time, doing budgets and 

stuff like that. But whenever they are in session, in Dover, if a legislator—House, Senate, Democrat, Republican—wanted to meet 

with me, I would meet with them that day. We would find time. 

Mr. O’NEILL. Yes. I do not know that Governor Malloy does that, 

and, in fact, I—— 

Senator CARPER. You might want to meet with him and say, ‘‘I 

talked to a recovering Governor from Delaware and he said this is 

what he did with his legislators.’’ And I will say this—we had eight 

great years. It delighted a Republican House and Democratic Senate, and got along probably as well with the House as with the 

Senate. It works. 

OK. Go ahead. Your second point? 

Mr. O’NEILL. In addition to that is that I would say another 

strength of ours is that unlike what I am hearing from the other 

members of the panel, we reject a lot of regulations. Now that does 

not mean that they are dead forever because they are supposed to 

bring them back right away and fix them and correct them. We disapprove, which is really kill the regulation forever, very rarely, 

once every 4 or 5 years. So we do have an ongoing dialogue after 

we reject the regulation, with the agency. That is when we really 

get into a dialogue with the agency. 

If we look at what they have done and say, ‘‘You got it wrong 

and here is why we think it is wrong. Sit down and work with us, 

or, more importantly, have your lawyers talk to our lawyers and 

work out the details,’’ and that is when we, I think, are able to resolve conflicts and give the public a real opportunity to weigh in 

on those challenged ones, is when we have that dialogue of sometimes rejecting them two or three times before we get final approval. 

Senator CARPER. Thank you. Now, Joshua, I mentioned that I 

was going to come back and ask you about 8 times in 23 years you 

actually voided regulations. Why so few? That is a surprisingly low 

number. 

Mr. BOSCHEE. Senator, one of our practices on the committee is 

often if it comes to the review process to us and there are contentions between the regulated community and the agency, we often 

will table the rule for the quarter, and that is basically a shot 

across the bow to the regulators, saying, figure this out with the 
19 

regulated community so we do not void these on you, and oftentimes it has been resolved and it is amicable. They show up at the 

next meeting and say, ‘‘We have kumbaya-ed. We have figured it 

out and we would appreciate you all to approve what we have 

changed.’’ So, again, that flexibility that we allow. They do not 

have to re-notice. They do not have to re-hear. If they make that 

change, that is amicable, and we do not have to be in a contentious 

situation. It will then be reviewed at that point. 

Senator CARPER. OK. Could I just ask one more? Do you mind? 

Senator LANKFORD. Yes, you can. 

Senator CARPER. One says yes. The other says no. The Democrat 

said no. I am a Democrat. That is bipartisan. 

Do you have a lookback, generally—one of the things Barack 

Obama did when he was President, as my colleagues will recall, is 

he asked, I think it was Cass Sunstein, who was the head of the 

Office of Information and Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB), asked him to do a regular 

lookback, and just look back at our existing regulations and see 

which ones would I keep, which ones we have to get rid of. And 

we got rid of, quite a few over time. Do you all have that policy 

in your State, Mr. O’Neill? 

Mr. O’NEILL. Yes. We actually started doing that about 20 years 

ago. We passed legislation that required all of the agencies to review all of their regulations. We had a schedule of them to come 

in and report to us and tell us which ones ought to be removed 

from the books, and that worked well the first time we did it because there was a strong impetus to do it. 

They were supposed to come in on a 5-year rolling schedule to 

keep on doing this, and that has not worked out. So what we recently did was we shifted the responsibility for handling that from 

the Regulation Review Committee to the substantive committee. So 

a transportation regulation would be brought over to the Transportation Committee for them to decide, because they have a more regular contact with an agency to decide about those kinds of things. 

So this is new. We have not really seen how it works. We just 

changed the law last year. But after the first go-around, it just 

never seemed to get off the ground again, to keep going with that 

regularly scheduled review. 

Senator CARPER. That makes sense. OK. 

Mr. BOSCHEE. For us, Senator, we have not wholesalely—or 

wholesaled the process such as Connecticut. But generally, what 

we find is that when an agency brings forward something to do 

with a section of code and they want to update, or something is not 

relevant anymore, they will update it at that time and that is part 

of the process. 

Senator CARPER. I see. Thank you. And Scott. 

Mr. BEDKE. I think that the fact that we, maybe, North Dakota 

and Idaho, reject so few rules, and maybe we do more than they 

do, but I think that this involvement and this process that we are 

used to that has happened for decades preempts some of the problems. And so it has this leveling effect because no one tries to gain 

the system at the advantage of the other party. And so I think that 

we preemptively solve a lot of the problems because everyone 

knows that they are going to have to stand tall in front of the legis-
20 

lature, whether it is the regulated community or the agency, and 

justify their actions, and that has the effect of creating better behavior on both sides. 

In Idaho, we were able to also look back—everything—every rule 

is fair game. So the ones that are pending, if they become permanent, then we are—and there becomes a problem that everyone 

missed, then we are able to pull those back and review those again. 

But it prompts a negotiated rulemaking afterwards, and while we 

are in session, of course, they cannot promulgate a rule, but as 

soon as we leave then there becomes another temporary rule and 

they try to employ the lessons that they have just learned, or the 

new information that has just come forward. 

So I think the involvement preempts problems, and thus we have 

fewer rules rejected, because we have been doing it for a while and 

we have kind of found our own level. 

Senator CARPER. Great. Well, we have lot of folks who come and 

testify before us but this is an extraordinary panel, and we—some 

nice common-sense, practical, just really good advice, and straight 

talk. We appreciate that, and I hope you enjoy your stay here and 

you will come back and help us with other problems. All right? We 

will put you on retainer. 

Senator HEITKAMP. I have a quick question. Have any of your 

States looked at judicial review and whether there had been a reversal of a lot of rules before your process, and whether, in fact, 

there has been a decline, and probably maybe even an elimination 

of judicial reversal of regulations as a result of this process? 

Mr. BEDKE. That is an interesting question, Senator, and I can 

have the research done, but I do not have a straight answer for you 

at this point. 

Senator HEITKAMP. Off the top of your head, do you have any 

recollection at all of a recent censure process, since the constitutional process went into effect, of the court voiding any rule that 

came through this process? 

Mr. BEDKE. Keep in mind we only elevated this to the constitution last November—— 

Senator HEITKAMP. OK. 

Mr. BEDKE [continuing]. And so we have not had a challenge yet. 

But I believe that new legislators are going to have to be careful 

with the wording that we use, and if we begin amending rules—— 

Senator HEITKAMP. You are in trouble. 

Mr. BEDKE [continuing]. Rather than just accepting or rejecting, 

I believe—and I am not a lawyer, and forgive me for bragging—— 

[Laughter.] 

I believe that there is a line out there over which we should not 

cross, but we have not been challenged yet. Of course, that were 

some of the assertions in the campaign leading up to the constitutional amendment, that this was going to be challenged and whatnot, but the opponents could not come up with a scenario that was 

not addressed in our process. Now, my friend from North Dakota 

has gone into great length in the technical aspects of your State’s 

process. We have a similar technical way that we do it all. And so 

the opponents that debated me, during the campaign leading up to 

this, we were able to go into depth and to allay those concerns in 
21 

a way that allowed the process, or the measure, to pass with nearly 

60 percent of the vote. 

Senator HEITKAMP. Yes. I think one of the points that I am trying to make is that listening to you all, we are worried about 

whether you are usurping executive authority, but you are almost 

acting like a first judicial review of the regulation. And so where 

we have focused on this separation of powers, a lot of what you are 

doing is what you would expect a court to do on the front end. And 

I am just wondering if you see a reduction in the number of regulations that have been voided by the court because you have gone 

through this process. 

Senator LANKFORD. Let me add one thing to that and I definitely 

want to hear this answer. The court has the responsibility in law 

to define what the law says. You are actually saying, no, this is 

what the law says and you are not following it as a regulation. So 

that is why we are jumping into this. We have lots of follow-up 

questions on this issue at Judicial Review, but let us keep going. 

Mr. O’NEILL. We have been at it so long it is hard to tell, in 

terms of challenges, other than the Pac decision where it was voided, or the committee already was challenged as unconstitutional at 

the lower-case court and then later on was not, but that case was 

overturned but not resolved. 

We do not get a lot of court cases, as far as I can tell. I certainly 

could go through and see. We can try and do a comparison. Things 

were so different in the way people would be able to go to court 

and challenge things, back in the 60s, I would say, for regulations, 

before this committee really got rolling in the 70s. It would be hard 

to do a comparison. 

I do know that periodically, so people do still challenge our regulations—we will hear, because we are told, we have to subpoena all 

the records from the review committee’s proceedings to bring to the 

court because they are challenging a regulation on the grounds 

that something is being done, either inconsistent with that the 

committee told them to do and what the regulation was rewritten 

to say, or they are claiming somehow that there was something 

wrong with what the committee did. But that does not happen on 

a, as far as I can tell, a very regular basis. My impression is that 

most issues that would provoke a court action are resolved at the 

committee level. It is certainly one of the things I think of as 

strong points of this process is that you can avoid unnecessary litigation because you have someone on the bureaucracy side who simply will not listen. 

So that is my impression. We do not get a lot but we still do get 

some. 

Senator LANKFORD. OK. 

Mr. BOSCHEE. And my recollection is, we have not had too many 

court cases, judicial cases, related to this. But what I have seen, 

and I would have to think of an example—I cannot do it off the top 

of my head right now—is that advocates for a judicial change may 

go to an agency and say, ‘‘Can we make a change through the administrative rules process?’’ 

Senator LANKFORD. Say that again. 

Mr. BOSCHEE. Where advocates of a change—so instead of taking—— 
22 

Senator LANKFORD. So an outside citizen group. 

Mr. BOSCHEE. Right. 

Senator LANKFORD. OK. 

Mr. BOSCHEE. Or a business entity group, regulated community 

would go to the agency and say, ‘‘Instead of us doing this, can we 

come to compromise through the administrative rules process?’’ 

And, again, we have not had a constitutional challenge so that is 

unique, I think, compared to my colleagues here. 

Senator LANKFORD. Fine. I am still back in the same position. I 

am trying to figure out the process here, because, again, we see the 

animus. We are trying to figure out what is a legal process. What 

other States have done as they have walked through this. 

Several years ago, the House of Representatives was frustrated 

with the President—and I can fill in the blanks on this—basically 

not applying the law as they saw that had been written and done. 

And so they went to the court. The court, actually, for the first 

time, went to the President and said, no, the President does not 

have the constitutional authority to be able to do this. Here is what 

the law says. And, literally, the House of Representatives was 

suing the Executive Branch to go through that. 

That case is now determined. It is a famous case now dealing 

with the Affordable Care Act. But that is a case where the House 

is actually filing a suit against the actions of the President. What 

I am trying to figure out is, is that the natural connection point 

here, where at the Judicial Branch, which really says what the law 

says, steps into a regulation and says that regulation is not consistent with that group? And the reason it comes up so often here 

is, by the time the regulation is promulgated, it is a different Legislative Branch. 

You are saying it is already so with you all as well, that the promulgation of the rule and the finalizing of the rule, it is a new legislative group after an election that is actually going back and reviewing it. That has been the contentious point. It is not the same 

people writing it, literally. It is the same body but not the same 

people writing it, also saying this is what we meant or did not 

mean by it. Does that make sense? 

Mr. BEDKE. It does, and I believe that in—but because of the 

practice back at the State levels that we have described here, there 

are fewer aggrieved parties. And so going to the court for redress 

or relief is, that relief has been granted in the process that led up 

to the writing of the rule. And, so I do not presume to understand 

all the ins and outs of here, but you have, available to you, the 

Congressional Review Act (CRA) that you have employed—— 

Senator LANKFORD [continuing]. As recently as this week. 

Mr. BEDKE. That is right. And so that allows by concurrent resolution or—but the President has to sign that. Now we do not have 

that. The Executive Branch does not have to sign off on these. 

Many States have the ability. As we were doing our research for 

this constitutional amendment, there are many States that have 

rules where you process but they have to do that rules review with 

a bill that is passed as both bodies, and then is signed into effect 

by the Governor. 

And, I will use the phrase that is the ‘‘fox guarding the henhouse’’ to a point, very lightly. I mean no disparagement. But that 
23 

would seem to violate the separation of powers on the other side 

of the issue. It is the legislature’s prerogative to make the laws, executive carries them out, the judiciary—this is basic civics, and 

that is why I believe that if works so well. And, over time, if it is 

allowed to work, then you preempt a lot of problems. 

Senator LANKFORD. But that is the challenge of the Congressional Review Act, is that it does require Presidential signature, 

and often you have an Executive Branch creating a regulation that 

the Legislative Branch may say, no, that is not consistent with the 

law, but you have to go get approval from the people that wrote 

it the first time. 

Mr. BEDKE. That is my use of the term ‘‘the fox guarding the 

henhouse.’’ 

Senator LANKFORD. Yes. No, I picked up the nuance there on 

that, but that is also why it has only been used 15 times in the 

history of the Congressional Review Act, and it has always been 

with the transition of the White House. 

Mr. BEDKE. And, if I may, the political stars have to line up so 

that the President is of the same party—— 

Senator LANKFORD. Right. 

Mr. BEDKE [continuing]. As the—you get it. 

Senator LANKFORD. I do. So the retrospective, or going back and 

looking at old regulations as well, for all three of your States, you 

could look at any regulation, at whatever year, at whatever time. 

Is that correct, or is there a time limiting that you can only review 

it for the first year, or once it is promulgated or finalized? Do you 

have the ability to be able to look at any regulation at any time? 

Mr. BEDKE. We do. In Idaho we do. 

Senator LANKFORD. OK. 

Mr. BOSCHEE. I believe we do. I will double-check and get back 

to you. 

Senator LANKFORD. Representative O’Neill? 

Mr. O’NEILL. The committee cannot initiate that process other 

than through this legislation that we have that requires the agencies to periodically report. As I said, we just changed that. The 

committee gets regulations before they go into effect, but they do 

not go into effect unless the committee approves them or lets them 

go through—— 

Senator LANKFORD. So your committee has the ability—they propose the rule, go through the final language, the committee has the 

conversation. Before it ever goes into effect it has to be signed off 

by your committee. 

Mr. O’NEILL. That is correct. 

Senator LANKFORD. OK. Same for both of you as well? It cannot 

go into effect until it has a signature? 

Mr. BEDKE. For Idaho, it is after the fact. All of the rules that 

are promulgated come back to the legislature, and if there is a rule 

that is in the archives or is not a pending rule for that year, then 

an individual legislator drafts the concurrent resolution, brings 

that to the committee, and then the committee has the prerogative 

to go back. Certainly the ones that are permanent rules—well, 

nothing is permanent—— 

Senator LANKFORD. I have noticed. 
24 

Mr. BEDKE [continuing]. But there is a greater buffer of protection, if you will, from the legislature there than there is. But an 

individual legislator can draft a resolution, bring that to the committee. If the chair agrees then it proceeds. 

Senator LANKFORD. OK. Go ahead, Representative Boschee. 

Mr. BOSCHEE. I was going to say, we do not sign off as part of 

our review. The committee only would vote on the review if we 

have made a language change as part of the process. So if we 

amend it to make it more friendly to the regulated community, or 

if something happened in the last 30 days that we need to also 

make part of this rule, then we would, as a legislative action of the 

committee, change it. 

Senator LANKFORD. But you could change text, add text to the 

regulation. 

Mr. BOSCHEE. Correct. 

Senator LANKFORD. Both of you are basically saying you are not 

adding many words. You could delete words or get rid of it entirely. 

Mr. BEDKE. That is correct, Senator. 

Mr. O’NEILL. That is right. We cannot add a word. 

Senator LANKFORD. OK. This is extremely helpful. Let me ask 

one last question on that. I would be very interested in anything 

else you want to contribute to the record, here, to be able to get 

in. 

My one last question is, is there a State that you would recommend that we also look at, based on your own research and your 

own interaction with other States, to say they also—we do not do 

it exactly like they do but I think you should look at that State and 

how they do it? 

Mr. BEDKE. Senator, right off the top of my head I cannot think 

of other States, other than Connecticut, which is what we looked 

at a lot in the lead-up to ours. You will find that many States have 

a similar process, maybe, in the low 20s, and then there will be the 

rest of the States, in the high 20s, that have the insertion of the 

Governor in the process, I believe. 

Senator LANKFORD. The fox in the henhouse conversation. 

Mr. BOSCHEE. I am sorry. I am not able to provide any other 

States. 

Senator LANKFORD. OK. There is no State better than North Dakota, is what you are saying. 

Mr. BOSCHEE. Correct. 

Senator LANKFORD. OK. I get it. 

Mr. O’NEILL. Well, I am always told that Connecticut has sort of 

been the creator of the most advanced system in this. 

Senator LANKFORD. You have had a lot time to be able to develop 

this system. 

Mr. O’NEILL. Yes. 

Senator LANKFORD. OK. Gentleman, I appreciate it very much. 

What I would ask of you is as you have other ideas and thoughts 

on it, feel free to be able to share that with me or with our staff, 

because we continue to be able to gather these ideas. 

This has been an issue that plagues us, because of the number 

of regulations that we have and the number of agencies that are 

creating them, and the difficulty of the checks and balances. The 

Office of Management and Budget process was created to try to 
25 

help Congress manage that, though it is in the Executive Branch, 

but we are still in the same mode of trying to figure out how to 

be able to manage that and how to be able to get back to, Speaker 

Bedke, as you mentioned as well, the person that is elected being 

held accountable when the final regulation is done. 

My only thought is, is there a moment when the Executive 

Branch has to challenge the Legislative Branch, that when you 

see—let us say a bill is passed, the regulation is done, the legislature looks at it and says, ‘‘That is too onerous. That is too overreaching,’’ and their response is, ‘‘That is what the law says. This 

is the only way to do what you asked us to do,’’ that the Legislative 

Branch has to come back and say, ‘‘You are right. There is not another way to do it. We stretched it that we have to pass something 

new.’’ 

Has that happened to you all, where there has been a challenge 

to be able to step back and say, ‘‘We have to fix the statute because 

we asked them, the regulators, to do something that will be so expensive or so onerous that we are going to have to pull back the 

statute.’’ That becomes, again, a judicial question where the judiciary can step in and say, ‘‘No, that is what the law really says.’’ 

Mr. BEDKE. Senator, that has a ring of familiarity to me. I do not 

have the specifics but I believe that we have done a double-take. 

This return and report that is baked into this process gives pause 

both to, I am sure has given pause to the legislature in Idaho before, and then have gone back through the regular process and addressed the underlying issue in the law. And, not that we admit 

to mistakes on the legislature side—— 

Senator LANKFORD. Of course not. 

Mr. BEDKE [continuing]. But maybe things happen, and, anyway, 

we go, ‘‘Oh, I can see—’’ 

Senator LANKFORD. I would tell you I have had some colleagues 

that voted for the Dodd-Frank proposal when it came out, and after 

the regulations started being promulgated they said, ‘‘I did not realize it would mean that.’’ And so there is some push and pull on 

it. 

Mr. BEDKE. Naturally, and that should precipitate a law change. 

Senator LANKFORD. Right. Any thoughts on that? 

Mr. O’NEILL. Yes. We actually have one of those cases pending 

right now. We had a legislation that called upon, I believe, public 

health and the Department of Environmental Protection to develop 

some regulations jointly. They created the regulations and then 

each of the commissioners wrote us a letter saying that these are 

terrible regulations but we are doing what you asked us to do, and 

if you look at the consequences of imposing these kinds of regulations you are going to be jeopardizing public health, because it 

changes a lot of things about allowing people to sell foods that have 

not been properly tested, and that sort of thing. 

Clearly, somebody had an idea, it went through the process, and 

it did not get carefully enough reviewed before it became statutory 

law. And so what we have done, in the committee—and this may 

be an example of us stretching—said we are going to reject it, even 

though it does what the law says, we are rejecting it without prejudice, and do not bring it back until after the legislature has had 

a chance to sit down and review all of this again. So this does cre-
26 

ate that kind of an opportunity for the agency to have a second go 

at the legislative process and say, ‘‘Did you really mean to do 

that?’’ And we now have concluded no, we really did not. 

Senator LANKFORD. That is extremely helpful. 

Gentlemen, thank you again. Let us keep the dialogue going as 

we try to work this out. At some point, when we finally get it all 

resolved, you will be able to tell your grandchildren ‘‘I fixed that,’’ 

and was a part of helping getting that resolved. So I appreciate it 

very much. 

Any final comments? Anything that needs to get on the record? 

Mr. BEDKE. And let us tell our children, not our grandchildren. 

Senator LANKFORD. Yes. I would be very good with that. Any 

other final comments? 

Mr. BOSCHEE. Thank you for the opportunity. 

Senator LANKFORD. Thank you. Thank you all for being here. 

I will make a final statement and announce the next hearing. Today’s hearing is concluded. The hearing record will remain open for 

15 days until the close of business on November the 10th, for the 

submissions of statements and questions for the record. 

This hearing is adjourned. 

[Whereupon, at 11:24 a.m., the Subcommittee was adjourned.] 
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