Testimony: Restoring Legislative Oversight of Rulemaking (LD 383)


Testimony in Support of LD 383: 
“An Act to Restore Legislative Oversight of Rulemaking”

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 on LD 383.

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. In fact, 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.

In 2021, a Mercatus Center analysis of the burden on Mainers from federal regulation found an association “with an increase in the number of people living in poverty by 13,140 (151,458 after vs. 138,318 before) and an increase in the poverty rate of 1.01 percentage points (11.6 percent after vs. 10.59 percent before).” In addition, the analysis found the following regressive effects to Maine’s economy:

  • 1.9 percent higher income inequality
  • 53 fewer businesses 
  • 608 lost jobs annually
  • 7.35 percent higher prices

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. These are pertinent reforms for this committee to consider this session, in addition to LD 383.

We commend Rep. Andrews for submitting this simple but important bill; LD 383 would require all future rulemaking to follow the “major substantive” level of public scrutiny. The biggest difference between “routine technical” rules and “major substantive” is the extent to which the legislature is involved in gathering information and ultimately giving preliminary consent to the proposed rule. Under “major substantive” rulemaking, due process exists. Under “routine technical” standards, very little oversight exists. Mainers ultimately pay the cost.

Section 8071 outlines current standard for agency rulemaking to be considered “major substantive” as those that, “in the judgment of the Legislature…Require the exercise of significant agency discretion or interpretation in drafting; or…are reasonably expected to result in a significant increase in the cost of doing business, a significant reduction in property values…or other serious burdens on the public or units of local government.”

One could argue that any use of bureaucratic power, since it carries the force of law, would be “reasonably expected to result in a significant increase in the cost of doing business.” Why shouldn’t every rule promulgated by the executive branch be subject to legislative scrutiny?

Why do legislators so easily cede legislative authority to unelected bureaucrats to decide the extent of their own power? It is a system with very little balance, and it is Mainers who bear the brunt of it. Agency rules are not lawmaking, they are executive decrees, supported by little more than a legal opinion from the regulating agency itself, yet they carry the force of law and often significantly affect the economy. 

Please deem LD 383 “Ought To Pass” and help save Mainers from unnecessary costs and compliance burdens stemming from overzealous state agency rulemaking. Thank you for your time and consideration.