The Winner of the 2004 Budget Fiasco?

Probably Cross-the only guy not getting negative publicity and for good reason.

But more than a party fight, this was a separation of powers fight and Rich Miller details the key element of that fight.

The administrative rule changes are a staggering increase in the power of the Lege and probably a very bad institutional organization, though certainly understandable given the current Governor. Miller describes it thusly:

The new powers given to the Joint Committee on Administrative Rules provide the Legislature with a huge weapon to check the governor’s previously awesome authority to run his administration. In the past, it was immensely difficult to stop a new administrative rule.

Rulemaking authority has been almost equal to, and in some cases has exceeded, legislative powers of passing bills. The importance of that rulemaking power can’t be overstated. Essentially, the governor could rewrite state laws to his own liking through the way he chose to implement them. Now, all it will take is a vote of eight out of the twelve JCAR members and a proposed rule is just about dead. That’s a big thing.

We elect Governor’s to implement policy. That’s their job as the Executive. Within that role is an amount discretion as to how to carry out laws with a check on it through administrative procedure rules and the ability of the courts to oversee the process. One of the reasons we do that is the assumption is that expertise is needed to decide how to specifically implement bills in highly technical areas. Expertise the legislature doesn’t generally have easily available nor does it have time to oversee such processes.

In reasonable times, the Lege looks for warning signs—or in the literature what is called as Fire alarms. When something wrong is brought to their attention from the bureaucracy, it is because there is a big shining light flashing over a problem. This is generally good because it catches the big problems and allocates legislative energy towards the most important areas of oversight.

The other way they could do this is called police patrols which means they monitor budgets and performance with regular audits. That job is generally given to the State Auditor except at budget time. It simply is too time consuming and ultimately, a Governor is elected to make single, coherent decisions within the legal framework.

If the trust breaks down between the branches as it has now down (the 50 Memorandums is staggering), the Lege starts to act more like a police patrol and in this case, they just institutionalized that method bureaucratic oversight.

While it takes up too much legislative time, the larger problem is that it trades a single coherent top-down bureaucracy into a bureaucracy with several masters—a recipe for incoherence and special favors. Instead of the Governor and the Lege settling their differences in enabling legislation, the rule making issue moves that bargaining process to a daily fight in the Lege leading to slower government. And we already see how this Governor does in negotiations with the Lege.

So the Governor didn’t just lose for himself, he lost for the institution as well.