CORRECTING A CONSTITUTIONAL IMBALANCE OF POWER IN MISSOURI

A lightning-bolt decision from the Missouri Supreme Court in early January eviscerated the Missouri Legislature's coveted ability to suspend and rescind executive branch rules and regulations. The ruling exposed the fragile nature of our tripartite government and contributed to a widening imbalance in power among the executive, legislative and judicial branches.

This precarious imbalance, if left unchecked by the General Assembly, promises to further erode the ability of elected officials to ensure that rulemaking is politically accountable and hasten an unhealthy trend toward control of state government by unelected technocrats.

The court, in a unanimous decision, pointedly told the General Assembly that the Missouri Constitution does not tolerate intrusion into the execution of laws by the executive department. According to the court, once the Legislature enacts a law, its participation ends. Carrying out legislative directives through the promulgation of rules and regulations is an executive function.

As if to remove any lingering doubt, the court in a subsequent revision of its opinion added that the Missouri Constitution "expressly recognizes the authority of the executive branch to issue regulations," thus suggesting that state agencies, like their federal counterparts, may actually have inherent constitutional authority to issue regulations.

Following a brief period of shocked disbelief, the Senate introduced a bill cosponsored by 32 of 34 senators that would eliminate all rulemaking authority. This action, while only a shot across the bow, indicated that the General Assembly would not curtsy to the court.

Meanwhile, in one of the more responsible moves, Gov. Mel Carnahan quickly called for a "moratorium" on rulemaking to alleviate any concern that executive agencies would unleash a parade of suspect rules.

The Supreme Court's decision -- coupled with the prospect of inherent rulemaking authority, mandated term limits for elected officials and the continued growth of executive branch agencies -- has seriously attenuated the power of the legislative branch vis-a-vis the executive and the judiciary.

Over the years, as our society has become more complex, so have our laws and regulations. As a consequence, the Missouri General Assembly, like other state legislatures, has delegated more and more of its rulemaking authority to agencies within the executive branch. And with good reason: Part-time lawmakers simply lake the time, staff and technical expertise needed either to provide detailed directives to agencies or to draft specific regulatory language in lieu of delegating such authority.

In an attempt to slow this trend and to check unprecedented bureaucratic growth, the General Assembly in 1975 created the Joint Committee on Administrative Rules to review rules and regulation promulgated by state executive agencies. Originally, this select committee served as a watchdog over state agencies and made recommendations to the entire General Assembly.

However, in subsequent legislation, the General Assembly granted the committee the power to suspect rules, the right of prior approval of rules and the power to nullify existing rules.

It is these more recent powers, granted by the Legislature, that were ruled unconstitutional by the Supreme Court in its January decision. Although the court may be right in its legal analysis, modern changes have outpaced traditional constitutional analysis.

Any proposed solution to the widening imbalance of power among our three branches of government must take into account the clear message from the Missouri Supreme Court that JCAR cannot be resurrected in its current form, short of a constitutional amendment, which failed in both 1976 and 1982. There are, nevertheless, numerous procedural reforms that not only would help allay the need for traditional JCAR review, but also would help ensure that agency rulemaking authority is within the scope of its delegated authority -- rather than arbitrary or capricious -- and is otherwise responsive to the needs of a larger community.

A three-pronged approach to reform of the administrative rulemaking process is required. First, it is important that public participation be increased at the front end by requiring agencies to consult that affected parties prior to proposing detailed rules.

This procedure currently is being used on a trial basis at the Missouri Department of Natural Resources as a result of an agreement between director David Shorr and the Regulatory Environmental Group for Missouri, an industry group.

Second, virtually all proposed rules should undergo the crucible of a public hearing. According to the Model State Administration Procedure Act, agencies should schedule a public hearing if, within 20 days of published notice of a proposed rule, a written request for a hearing is submitted by a political subdivision, an agency, or 25 people acting individually.

Third, there should be an opportunity for a "constitutionally permissible" review of agency rules. Although various alternatives have been proposed in the General Assembly, two have surfaced as the most discussed.

The first, a Senate bill sponsored a President Pro Tem Bill McKenna (D-Barnhart), advances a full range of reforms, including a new role for JCAR. In essence, McKenna's proposal would continue JCAR's authority to hold hearings on both existing and proposed rules. JCAR's ability to rescind rules would be replaced by allowing the committee to place a "stamp of disapproval" on a rule, and require this disapproval to be filed with the secretary of state and with appropriate officials in the General Assembly, including the committee that handles agency budgets.

The other measure is sponsored by Rep. Glenda Kelly (D-St. Louis), who chairs a bipartisan interim committee on this issue, and is cosponsored by all but one House member. Though similar to McKenna's proposal, Kelly's bill is less demanding of the agency.

Like the Senate version, the House bill maintains a role for JCAR by giving it the ability to review and make recommendations on any proposal or final rule. However, unlike the Senate version, this proposal requires that all substantive rules (those that affect private rights) be reviewed by the House and be presented to the governor for his signature.

Both bills deserve careful scrutiny in the final weeks of the legislative session. Although JCAR's most powerful functions cannot be resurrected, it is impressive that lawmakers take proactive steps to correct an increasing imbalance of power in Missouri government and to ensure that rulemakers are responsive to the citizens of Missouri.

Roger Walker is general counsel for the Missouri Chamber of Commerce and president of the Regulatory Environmental Group for Missouri.