February 02, 2012 04:50 AM UTC

So Much For "Cutting Red Tape?"

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• by: Colorado Pols

From the American Heritage Dictionary:

red tape

n. The collection or sequence of forms and procedures required to gain bureaucratic approval for something, especially when oppressively complex and time-consuming.

(From its former use in tying British official documents.)

We spent much of this afternoon listening to the state Senate Judiciary Committee’s debate over of a pair of odd Republican bills worth retelling the story of. Senate Bill 12-027, sponsored by GOP Sen. Mark Scheffel, and Senate Bill 12-073 sponsored by Senate Minority Leader Bill Cadman, attempted to impose additional review processes and criteria for rules promulgated by executive branch agencies. Which is a long way to say they “added red tape.” After debate this afternoon, SB12-027 was laid over until Monday. SB12-073 was killed on a party-line vote.

SB12-027’s summary:

The bill creates an additional rule review process for rules adopted on or after November 1, 2011, that are determined by the staff of the committee on legal services (the office of legislative legal services) to be related to legislation enacted during any legislative session, regular or special, commencing on or after January 1, 2011. The rules are to be reviewed by a committee of reference of the general assembly. The legislative council staff determines what committee of reference appears to be the most appropriate based on the principal departments assigned to each committee of reference as specified in legislative rule. The committees of reference must review all assigned rules no later than the 45th day of the legislative session. Each committee of reference may establish its own procedures for the review, but the bill sets forth minimum requirements for at least one public meeting. The bill allows the committees of reference to disapprove a rule for any reason, but provides the committees of reference some minimum considerations.

And SB12-073’s summary:

An executive branch agency is prohibited from adopting a rule pursuant to the “State Administrative Procedure Act” unless the agency finds that the rule is consistent with the clear legislative intent of the general assembly as supported by the public record of committee hearings and floor debates, including any public statements made by the principal sponsors or proponents of the bill or an amendment to the bill before its adoption.

The bill adds another ground for the committee on legal services and its staff, the office of legislative legal services, to use when it reviews rules adopted by executive branch agencies: A rule shall not extend in scope or impact beyond the clear legislative intent of the general assembly as supported by the public record of committee hearings and floor debates, including any public statements made by the principal sponsors or proponents of the bill or an amendment to the bill before its adoption…

In short, SB-027 would send adopted rules back to their committees of reference to perform an additional review early in the subsequent session, giving committees the power to reject rules “for any reason.” SB-073 required agencies to evaluate all rules by additional criteria to determine if they conform to the “clear legislative intent of the general assembly,” to the point of requiring them to comb through debates, legislative testimony, maybe even press clippings.

Coming from a pair of rock ribbed “red-tape slashing” conservative Republicans, it’s fair to say that nobody really knew what to make of these bills in Senate Judiciary today.

SB-073 seems to have been redundant busywork mandated to be undertaken by every agency at state expense, because legislative intent is already a required factor in rulemaking–and they get a chance to fix it every session if it’s not followed. The bill would have increased the legal standard that must be met from simply “intent” to “clear intent,” which has legally unexplored implications all by itself. But above all, this would have required agencies to analyze the intent of sponsors and “principal” proponents for every promulgated rule–what about those who supported it for other reasons? In the case of truly ambiguous language, do the homework. But requiring this pedantic exercise for every rule stemming from legislation? It’s ridiculous.

SB-027 is described by sponsor Sen. Scheffel as a “variation on the same theme” as Cadman’s SB-073–sending adopted rules back to the committee of reference for the legislation in question at the beginning of the next session for mandatory review. Because the legislation would allow rules to be rejected by the committee for “any reason,” it could open a dubious new path to killing rules passed by a prior session that the current body simply doesn’t like. It would weigh down committees differently, as some committees are responsible for more rules than others. But the effect is the same–another round of committee level second-guessing for every rule.

In both cases, we understand what they’re getting at, but in both cases there is already redress for the problem they are trying to solve–and the opportunity for legislative shenanigans and obstruction created by these bills is wide-ranging, to the point of possibly…being the intent?

In any event, one bill is dead and the other on life support. Sen. Mark Scheffel promised to bring SB-027 back in an unspecified but less-onerous form on Monday. But we thought a better explanation of what was attempted here would help readers understand–before the low-information, high-acrimony press releases begin to fly.