2017 SJR 35: Legislature blocking rules, Article III

What SJR 35 Does

Senate Joint Resolution No. 35 was proposed by Senator Knopp.  This proposal is to add a new Section to Article III, Separation of Powers, of the Oregon State Constitution.  This proposal adds to the Legislature the power to block a rule prior to its coming into power, or in the case of an emergency rule, within 12 months of its coming into power.  It does not define any need for cause and these would all be simple majority votes.  One thing that is not considered here is whether or not the Governor can veto legislation blocking a rule as defined in Article 5, Section 15b.  There were some number of other bills filed that discuss this same topic that I have reviewed: here, here, and here.

My View

This would fundamentally change the tone of government, which well may be the goal of the writers of the bill.  While it is appreciated that governmental regulations can delve into areas where it does harm rather than good and that the writers of the proposal imagine that the good Legislature will be able to sort these issues out, the reality is that it is unlikely that the Legislature can take on this task without having it run out of time to write actual Legislation rather than just run after the executive trying to stop all the rules that are being promulgated.
Creating laws and regulations is quite hard.  These create unintended and unforeseen consequences that once realized have to then be addressed.  And it can lead to a kind of arms race between those who seek to manipulate the law for their gain vs. those are trying to stop certain kinds of behavior.  There is a calculus that you could try to perform.  Without the law in place, determine the cost to society vs. with the law in place what is the net change of the original calculation.  But you run into problems trying to quantify the effects.  Let me take and example of a proposed rule of using an chemical in apple farming to increase yields.

• This chemical has the following observable effects:
• The manufacture and distribution of the chemical employs 100 people.
• The use of the chemical on average increases apple yields 10%.
• 3 people die annually from poisoning by the chemical: this is accidental overexposure of apple farm workers; for the sake of argument I am assuming it is safe to consumers.
• The chemical interferes with the reproduction of a species of songbird and it has been documented that over the last 10 years of use, areas where the chemical has been used, the population of the songbird has disappeared or become very rare.

So the question is how do you do the math to determine if using this chemical is a net positive or a net negative to society?  Employment and increase in yield are easy to quantify in economic terms.  Premature death is quantifiable in actuarial terms, but is it valid to just simply subtract the actuarial value from value of the wages and increased yields?  And what do we do with the potential extinction of a songbird?  This last issue is an externality that does not have any quantifiable economic value.  It becomes impossible to make the calculation and thus the decision lies on a value judgment between the various factors as well as to the indeterminacy of whether we have all of the relevant information.  Value judgments are moral in nature and depend on the beliefs held by the people.  One of the assumptions of democracy is that the Representatives and Senators (and executive and judicial branch as well) have values that are a good representation of the people who elected them.  Clearly this is also not always true.
Returning back to the bill, I do not think this is a good proposal.  We have to trust that the value judgments being made when creating or amending rules are representative of the social compact which was agreed (See Article I, Section 1) at the formation of this great State of Oregon.