Testimony: Rein in the Administrative State
Testimony in Support of LD 1840, “An Act to Reform the State’s Administrative and Rule-making Procedures”
Senator Nangle, Representative Stover, and the distinguished members of the Committee on State and Local Government, my name is Nick Murray and I serve as director of policy for Maine Policy Institute. We are a free market think tank, a nonpartisan, non-profit organization that advocates for individual liberty and economic freedom in Maine. Thank you for the opportunity to testify in support of LD 1840.
The administrative state is out of control. A review of all 50 states’ small business climates published by the Pacific Research Institute in 2015 ranked Maine 5th-worst in the nation. Though PRI has not conducted another analysis since then, the regulatory burden on Maine people has not gotten better; far from it.
An analysis of the 2018 Code of Maine Rules (CMR) found that it contains 113,862 regulatory restrictions and 8.1 million words. Author James Broughel noted that “it would take an individual about 449 hours – or more than 11 weeks – to read the entire 2018 CMR, assuming the reader spends 40 hours per week reading at a rate of 300 words per minute.”
These regulations are not empty words; each is backed by the force of law, bearing costs for those tasked with complying with them. The child care industry alone faces 200 pages of state regulations. This is the likely reason why, despite climbing prices, more entrepreneurs aren’t entering the market. With LD 1840, these rules would have been scrutinized every five years, a reasonable timeframe to assess effectiveness in the real-world.
As part of his work on Maine, Broughel also provided a framework for capping onerous rules and regulations in order to promote an environment of economic growth, including a yearly review of agency regulations and implementing automatic sunset provisions. We are pleased to see similar provisions in LD 1840 which require adopted rules to automatically expire at the end of the fifth fiscal year following filing.
LD 1840 also allows the governor oversight in the adoption or amendment of executive branch rules, so that he or she may veto such rules if deemed to be too onerous on Mainers.
The bill would also provide better guardrails around agency use of routine technical rules, which do not require legislative oversight or approval. In this way, it requires emergency rules be treated as “major substantive,” a self-evident, common-sense reform that should have been in place for decades. LD 1840 redefines major substantive rules as those which will result, or are likely to result in an annual economic effect of $50 million or more, or cause significant effects on economy or social and cultural relations among citizens.
Perhaps most critically, this bill targets a clear threat to stable, predictable regulation: what is known as the Chevron doctrine, outlining the judicial branch’s deference to executive branch interpretation and enforcement of law. This doctrine allows for unencumbered government overreach into all areas of life. Provisions in LD 1840 which proscribe that court’s shall interpret statutes or rules de novo, or anew, when weighing the effects of agency powers over individuals.
While we are sympathetic to the extra effort complying with this bill would require of state officials, we believe it is absolutely crucial for public transparency and ensuring the highest levels of accountability in how the government interacts with the people. Because agency rules carry the force of law, they should be subject to legislative scrutiny.
The standard for public transparency and accountability should be squared with those who are subject to the rules, not with those who make them. Please deem LD 1840 “Ought To Pass” and restore a sensible level of executive branch power over Mainers’ everyday lives. Thank you for your time and consideration.