In my humble opinion, one of the practices most damaging to our republic has been the incredible expansion of government through the use of rule-making authority. It basically transfers power from elected officials who are accountable to the people, to a group of nameless, faceless bureaucrats who oftentimes create rules that expand the power of the bureaucracy, to the detriment of the people they were hired to serve.
Rule-making authority begins when a legislative body passes a bill that’s long on policy and short on details. They basically tell the agency where they want to go and let the agency figure out how to get there. The problem is these rules have the force of law and the rules propagated to administer a law can be hundreds, or even thousands, of times more voluminous than the law itself. Perfect examples are the Federal Clean Air and Clean Water Acts. The original acts, themselves, are fairly compact, but the regulations promulgated by the Environmental Protection Agency require an army of regulators to enforce, and the cost to the economy can be immeasurable. And it doesn’t only happen at the Federal level; we have our own examples right here in Montana.
During the 2015 legislative session, we talked about Senate Bill 289, a bill to generally revise Montana campaign finance laws. We fought that bill and pointed out that huge portions of it were patently unconstitutional. Parts of the law were challenged, and those cases are still on appeal. But as we pointed out in testimony, even more worrisome was the amount of rule-making authority granted to the Commissioner of Political Practices.
As pointed out by one federal judge, it basically allowed the Commissioner to deem himself judge, jury and executioner. As predicted, the Commissioner granted himself so much power that it raised eyebrows in the legislature itself, and in this session one of those legislators who voted for the original bill has introduced another bill to claw back some of the power that the original bill gave away.
This afternoon the House will debate Senate Bill 368, which, ironically, has the same title as the original bill, “Generally Revised Campaign Practice Laws.” Unlike the original bill, however, this bill grants no additional rule-making authority; in fact, it describes in excruciating detail, how the Commissioner shall conduct his investigations, and how his preliminary findings are now able to be appealed before they become final. That was a bridge too far. Current Commissioner Jonathan Motl spoke against the bill, arguing that it would affect his independent authority to oversee campaign finance and reporting laws; in short, it takes away his ability to act as judge, jury and executioner, which is exactly what it’s designed to do.
C.B. Pierson, a political activist who has worked closely with Motl in the past, said that the bill would roll back gains made in the 2015 law, which is also exactly what it’s designed to do . Legislators can, and do, make mistakes, and giving the Commissioner of Political Practices virtually unlimited rule-making authority was a big one. Senate Bill 368 is their chance to undo some of that damage. The bill passed the Senate 48 to 2, and we hope it passes the House by large margins, as well.
