American Habits: How unelected bureaucrats undermine the people’s representatives

Laws are not self-executing. The usefulness of a law depends on it being faithfully carried out. For that reason, legislators often rely on information from government bureaucrats. Unfortunately, many times our policymakers’ efforts are tripped up when bureaucrats provide misleading information or just flat out refuse to follow the law.

Thirty years ago, the Texas legislature passed a law requiring state agencies to reevaluate their regulations every four years to decide if they are still necessary or relevant. Regulations are technical and as technology and science evolve—as do as the conditions the regulations were originally designed to address—it stands to reason that regulations may no longer be relevant and could unreasonably impede progress and economic growth. It was unclear whether Texas agencies were conducting the reviews the 30-year-old reform required. Just to be sure, in 2023 Rep. Brian Harrison introduced a bill that would force the agencies to publish the results of the reviews online, and to ensure full compliance, it declares that any regulations that were not reviewed would be void.

Despite having been required to conduct reviews for the last 30 years, the agencies admitted they were not complying with the law and hadn’t conducted any reviews in recent memory. Not only that, but the agencies also threatened that they would refuse to follow the law unless the legislature appropriated $43 million over five years. With that revelation, it’s obvious the agencies have little respect for the legislature and the laws it passes.

The agencies surely would have loved to get the $43 million, even assuming it would cost that much to comply with the existing review law. But everyone who has worked in state policy knows the quickest way to kill any bill is to slap a big price tag on the policy, which is what the agencies did with their funding “request.” Texas, like most states, requires a balanced budget, so legislators hesitate to spend money outside of the annual or biannual budget bill.

It’s ironic that agencies designed to ensure that citizens comply with rules and mandates through hefty fines, loss of licenses, and sometimes imprisonment, don’t feel the need to comply with laws regulating the agencies themselves. What are the consequences for an agency that refuses to comply with the law? They demand tens of millions of dollars in what amounts to a regulatory ransom.

In the committee hearing on his bill to force state agencies to publish the results of their reviews, Rep. Harrison wondered out loud how the agency would respond to a Texas business informing the agency that it just didn’t have the cash to comply with the agency’s regulations but would readily comply if the agency chipped in a few million dollars.

Fiscal note mischief was also afoot recently in North Dakota. When legislators were debating a bill that would instruct courts to not defer to agency interpretations of regulations, the agencies responded that they needed millions of dollars to hire more lawyers to make sure their regulations were clear enough to understand. That’s an admission that bureaucrats are failing the public by writing convoluted regulations. The public shouldn’t have to pay agencies ransom to get clear, understandable regulations.

North Dakota agencies also put forward convoluted arguments to create doubt in legislators. The agencies raised questions about venue and application of federal law and the ability to implement federal programs. The proposed reform had nothing to do with those issues, and the agencies knew or should have known that. But the bureaucrats didn’t have to explain their concerns, they just had to sow enough doubt and confusion to run out the clock until the end of session. Then, in the minds of the North Dakota bureaucrats, they get a 21-month break from dealing with those meddling legislators.

In 2014, the Arizona legislature was debating exempting makeup artists from cosmetology licensing, when the cosmetology board told legislators that allowing unlicensed people to apply makeup to others would result in outbreaks of disease and that people would lose arms and legs from serious infections.

The legislature wisely ignored the apocalyptic prophecies of the cosmetology board and exempted makeup artists from cosmetology license requirements. Nine years later, there have been no reports of missing limbs due to unlicensed makeup application. When bright-eyed new legislators get to the capitol ready to fulfill campaign promises and clean up state government, they are often stonewalled by their own state’s agencies who are interested in keeping and retaining their power.

Across the political spectrum there are calls for more democracy—the voice of the people to be heard in government. Our elected officials act as the representative and voice of the people. If they act against the will of the people, they can be voted out. There is no such recourse for bureaucrats. So long as state legislators allow themselves to be bullied by runaway agencies and bureaucrats, the people’s voices are being drowned out.

Legislatures and governors need to rein in agencies and bureaucrats. Legislatures can put teeth into their policies and increase their oversight over agency rules and actions. Governors can demand accountability from their agencies through executive orders that require rules be approved by the governor’s office. And both can look at agencies with a skeptical eye and seek independent validation of the information they are being fed.

This op-ed was originally published in American Habits on November 1, 2023.