Voters to decide rules-review measure

COEUR d'ALENE — A familiar proposal to change the Idaho Constitution will be back before voters on the Nov. 8 ballot.

The measure, House Joint Resolution 5, would amend the state constitution to ensure the Legislature can approve or reject agency rules and regulations without any veto power for the governor.

The Idaho Supreme Court case of Mead vs. Arnell in 1984 gave legislators such rules-review power, but most legislators, including House Speaker Scott Bedke, R-Oakley, are concerned a future court could rule otherwise, so they're asking voters to enshrine the power in the constitution.

"In Idaho, (legislators) are the ones who determine if the rules are consistent with the original law," Bedke told The Press editorial board on Wednesday. "We've been doing that since 1984. This constitutional amendment enshrines that ability. It's an affirmation."

Voters narrowly rejected a similar measure during the 2014 General Election. A simple majority (50 percent, plus one vote) is needed at the polls for constitutional amendments to pass, and 49.4 percent of voters statewide were in favor at that time. In Kootenai County, 14,975 were in favor, 19,309 against.

Bedke said he believes the previous measure was poorly worded and perhaps many voters weren't even aware of it, so he's leading the charge at the request of residents who support the measure to help educate voters statewide this time.

During the last legislative session, the House voted 62-3 in favor of sending the proposal to voters in November and the Senate 34-1 in favor. A constitutional amendment measure must pass the House and Senate by two-thirds votes to reach the ballot.

The 2014 measure passed both sides of the Legislature unanimously before being rejected by voters.

Mark Warbis, a spokesman for Gov. Butch Otter, said the governor's office hasn't taken a position on the proposal.

Attorney General Lawrence Wasden was unavailable to comment on the measure on Wednesday, but expressed concerns during a Land Board meeting in April calling the proposal an "overreach" by the Legislature.

Wasden said the Idaho Legislature having this power is unique among states and alluded that legislators should listen to what voters decided two years ago, according to the meeting notes.

At the same meeting, Secretary of State Lawerence Denney expressed support for the measure.

"Secretary Denney remarked that two years ago there was not any effort to inform voters as to the necessity of having that opportunity to review rules," the minutes state.

Rep. Luke Malek, R-Coeur d'Alene, said he supports the measure because he believes it's protection for the people's voice. It also ensures legislators are accountable to their electorate.

"The only people harmed by this are those who want a stronger Executive Branch," Malek said. "This ensures that the intent of the people and the lawmakers that they elect are preserved."

Bedke said a local example of how the rules-review power came in handy was during the last session when it was discussed whether to give submersible pump users two years to work out compliance issues with the state Office of Building Safety. The state is planning to phase out use of submersible well pumps in open water due to the risk of electric shock.

"The ability to do rules review forced us to get to the bottom of the problem, get both sides and mediate a path going forward," Bedke said.

Legislators don't — and still won't if the measure passes — have the ability to amend rules. They can only accept or reject them.

Malek said overregulation is a factor behind legislators taking the steps to have the rules-review power protected in the constitution.

"What's driving this is the fear of overregulation," Malek said.

Bedke said the measure is one of the few recent acts of bipartisanship at the Legislature.

"The far right and far left are in favor," he said. "When problems (with laws) bubble up, elected officials have the ability to deal with those versus a faceless bureaucrat. This is a good process when it comes to promulgating the rules. It's a process that's been working to those of us who want it to continue."

Bedke said most legislators don't want to follow the federal government's example when it comes to rules and regulations.

"The only things that come out of Congress law-wise are regulations and rules that Congress doesn't review," he said.