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.

2017 SJR 34: Proposal for controls on administrative rules

What SJR 34 Does

Senate Joint Resolution No. 34 was sponsored by Senator Knopp.  The bill proposes to add a Section 5 to Article III (Separation of Powers) of the Oregon State Constitution which would demand that the Legislature can block Administrative rules that meet certain criteria until such time that the Legislature approves the rule.  After approval, the rule would automatically be revoked after 6 years, and I assume there is nothing that would prevent re-approval.  We have seen similar proposals for allowing the Legislature to get involved in Executive branch business here and here.

My View

This proposal is clearly flawed and serves, I feel, only as a symbolic political document that truly was never intended to go anywhere.  In this proposal the mechanism for prohibiting rules is not spelled out in any way.  Second, if you look at the criteria in subsection (2), these are quite subjective and would lead to wrangling no doubt the first time someone proposed to use this provision.  Third, the writers would have included re-approval in the sunset clause if they had been serious.
The other proposals linked above definitely had more merits that this bill.

2017 SJR 33: Legislative veto on administrative rules

What SJR 33 Does

Senate Joint Resolution 33 was proposed by Senator Knopp and Representative Nearman.  This resolution proposes to add a new Section 5 to Article III of the Oregon State Constitution to add in that the Legislature can repeal administrative rule or amendment to a rule by passing a resolution by a majority in each house.  See also what I have written on SJR 26 which is in a similar vein.  This bill also includes a preamble which explains that the authors believe that the government, specifically the executive branch, has overreached and through this overreach has strangled small business and also raised the cost of living for Oregonians.  Therefore it is imagined by the authors that if the executive passes some egregious rule that burdens people to have to do something, or prohibit some act, this can now be repealed by the Legislature and thereby the Legislature can swoop in like a knight in shining armor to save small business and ordinary residents from the scaly dragon of the bureaucracy which threatens to breath fire and eat them whole.

My View

If I couched the end of the above in overly dramatic terms, it is because I think that this will not, in practice, aid small business and ordinary residents.  Government works through leverage.  Leverage will be applied by those who have it to where it can be applied.  This bill would create a new leverage point in the Legislature which big business, large unions and other powerful interests can exploit through typical lobbying activities already present.  While the executive branch does have some political appointees as well as a few elected officials, by and large, the larger part of the cogs and gears of the executive branch of the government are not political appointees onto which such lobbying tactics can be applied.
In summary, I do not support this bill.  I think that this creates a temptation of large powerful organizations to influence the legislature.  The separation of powers exists for a reason and this bill would meddle too deeply in that balance.

2017 SJR 32: Precision in raising revenue, Article IV, Section 25

What SJR 32 does

Senate Joint Resolution 32 was filed by Senator Knopp and Representative Nearman.  This resolution proposes to amend Section 25 of Article IV (Legislative Branch) of the Oregon State Constitution.  The resolution amplifies what is intended by the term "bills raising revenue".  As original written, the constitution calls for bills that create laws that are sources of revenue for the government must be passed by a three fifths majority of both the house and senate.  This proposal specifies in detail to assure that bills which increase fees and fines, adjust who has to pay a tax, fee or fine, changes in tax rates all have to be passed with 3/5 majority.  Further, if there is a cut to revenue, such a bill has to be passed by a 3/5 majority.

My View

I think that this would be a good bill to pass.  This bill seems to reflect the reality that legislation is often complicated and out of this complication can come attempts to argue that the criteria of "raising revenue" is exempted even though the direct result will do that.  I feel that this amplification of the language is worthwhile.  The notations in the constitution indicate that this subsection was present in the original constitution and was amended in 1996.

2017 SJR 31: Combined City/County Government, Article XI

What SJR 31 does

Senate Joint Resolution No. 31 was introduced by Senator Knopp.  This measure proposes to change Article XI, entitled Corporations and Internal Improvements, Section 2a of the Oregon State Constitution.  This allows municipalities of greater than 500,000 population to essentially become their own counties.  There is also a provision that if there is a municipality that is greater than 700,000, that it can be split so long as the pieces all have more than 100,000 people in them.

My View

I wrote about Section 2a, Article IX here.  There is indeed a problem in that there are multiple levels of government which can end up being redundant.  For large urban areas, the city government, out of need of co-ordination and economies of scale, end up doing a lot of what the county government is responsible for.  Here in Oregon, at least we really only have one particularly serious instance of the question, that being the city of Portland in Multnomah county, although I think that the city also extends into Washington County in a few places.  Overall, having a large urban center being a county all by itself could really be a good thing, however, changing borders is always fraught with emotions and trivial emotional concerns that can end up as effective roadblocks since changing borders on a few things would achieve exactly the same as this proposed amendment.
Subsection (4) of the proposal is virtually a gilded invitation for the rich neighborhoods to secede from the rest of the urban area and is really a bad idea.  Because of that, in its current form, this proposed amendment has got to be a no.

2017 SJR 30: Amending Article IV, Section 25

What SJR 30 does

Senate Joint Resolution No. 30 was introduced by Senator Girod.  This proposes to amend Article IV, entitled "Legislative Branch", article 25 of the Oregon State Constitution which defines how resolutions are passed in the Legislature.  This amendment proposes that during even numbered years, that resolutions all require a two-thirds majority in both houses to pass and be given to the Governor for signature.

My View

I wrote about Article IV, Section 25 here.  There was a different resolution which had the same kind of proposal, although it was more focused whereas this one is uniform.  I think this essentially leads to gridlock during the even numbered years and for that reason, I don't think it is a good idea.

2017 SJR 29: Redistricting - Article IV, Section 6

What SJR 29 does

Senate Joint Resolution No. 29 was introduced by Senator Girod.  This resolution proposes to replace Article IV, entitled Legislative Branch, Section 6 with an entire new tract of text in the Oregon State Constitution.  This proposal is to create a redistricting commission of 11 persons who will review the district boundaries after the decennial Federal Census.  The 11 commissioners will be selected by the county commissioners.

My View

Frankly, having had a look at some of the proposals for redistricting here, this proposal strikes me as being convoluted and opaque.  There are a number of aspects to this which are currently tuned to the state of how things are in Oregon now that could be quite different in 20 or 30 years.  Re-districting is a controversial issue currently and assuring that no gerrymandering happens is important to keeping the flame of representative democracy alive so bringing up as many ideas as possible is a good thing.  Unfortunately, there is not anything in this particular proposal that I feel is better than those so far reviewed by this Blog.