Legislative Oversight of Rulemaking Bodies

In today’s post, we’ll continue our look into how to be a more effective regulatory agency advocate. Today’s podcast concerns the unique role of the California Legislature in the rulemaking process.

There is a number of ways that the Legislature influences the rulemaking activities of state agencies. One way that the Legislature can do this is by adopting statutory changes to expand or limit a specific state agency’s authority to adopt regulations. This is an important power because it is the underlying statute that confers either broad or limited quasi-legislative powers to a state agency. The Legislature can also utilize the power of the purse strings through the annual budget process to influence an agency’s rulemaking activities.

There is also a legislative review of regulations under the joint rules of the California Legislature. The California Joint Legislative Rules Committee, as well as the respective rules committees of the Assembly and State Senate, can approve any request from a legislator to give priority review of a regulation. Under the same rule, any State Senator may request the Senate Committee on Rules – and any Assembly Member may request the Speaker – direct any standing committee in their respective houses, or the Assembly Office of Research or the Senate Office of Research to study any proposed regulation.

When reviewing the request, the Senate Rules Committee or the Speaker must determine, first, the cost of making the study; second, the potential public benefits derived from the study; and third, the scope of the study. Per the joint rules, the study may consider, among other things, seven different items:

• Do the proposed or existing regulations exceed their agency’s statutory authority?
• Does it fail to conform to the legislative intent of the enabling statute?
• Does it contradict or duplicate other regulations adopted by federal, state, or local agencies?
• Does it involve an excessive delegation of regulatory authority to a particular state agency?
• Does it unfairly burden particular elements of the public?
• Does it impose social or economic costs that outweigh its intended benefits to the public?
• Does it impose unreasonable penalties for violation?

These items of consideration differ from the Office of Administrative Law’s six standards of review, which we will cover in my next post on regulatory agency lobbying.