Gloves Come Off -- General Assembly Targets Strickland Administrative Rule-Making Power

It's time to wake up the media and the public about House Bill 685, introduced last week and on the fast track to quick passage in a matter of a few weeks. Although Republican legislative leaders Sen. Bill Harris (R-Ashland) and Rep. Jon Husted (R-Kettering) have said they wouldn't take action in the lame duck session to interfere with the incoming Strickland administration, this bill does just that.

As a Democratic governor saddled with a Republican-dominated General Assembly, Ted Strickland (D-Lisbon) will rely heavily on adminstrative agency action to implement his policy agenda. Administrative agencies act largely through rule-making. Such rules implement the broad policy dictates of legislation, and by defining the details they shape policy. Just consider the importance of Clinton-era rule-making in advancing his environmental agenda, and of Bush-era rule-making in killing it.

On the state level, new and revised rules proposed by Ohio agencies are reviewed by the Joint Committee on Agency Rule Review (JCARR), staffed with six Republican legislators and four Democrats. Currently JCARR is limited to assessing whether proposed or revised rules follow legislative intent and stay within the scope of statutory authority, a function that yields only limited opportunity for obfuscation. Now the Republican majority intends to railroad through a drastic expansion of JCARR's role that will hamstring administative power.

HB 685 is a classic power-grab. Administrative agencies will now be required to pay a $50 fee (required to come out of each agency's own appropriation) for each new or revised rule. Rules cannot be accumulated under one fee, so a package of 50 rules will cost $2,500. (The fee does not apply to rules that merely track federal regulation, revealing the anti-regulatory ideological animus of the change.)

The real damage, however, is not the fee but an expanded scope of review and broad new power on the part of JCARR to delay implementation. Under HB 685, agencies are required to analyze any economic impact the proposed rule is likely to have upon Ohio businesses in the rule summary and fiscal analysis (RSFA), including which businesses are affected, how much it will cost to comply with the rule, the additional time businesses will spend on compliance, measuring the regulatory burden on business, and "any other information" needed to "fully explain" the impact on Ohio business. If 6 members of JCARR (i.e., the Republicans) decide that the RSFA is "incomplete or inaccurate," they can return the rules to the agency or simply postpone consideration for 60 days. After the 60 days have passed, the rules are treated as if they were the original version of the rules, apparently meaning that they can be postponed again and again. In other words, unlimited delay and obstruction.

Bottom line, this law gives six Republican legislators unbridled power to stall administrative rule-making by the Democrat-controlled executive branch of government. It's a direct strike at Ted Strickland's ability to govern the state effectively.

It's time to sound the alarm, before this drastic change is whisked through the General Assembly during the lame duck session. Write to your local newspaper, post a comment on a blog or forum, talk to your friends and neighbors. Public outcry is the only thing that can stop it.

Cross-posted at Buckeye State Blog and Ohio Daily Blog