The issue of unelected bureaucrats at state agencies adopting rules that overstep their authority has long been a complaint of the business community.  Many believe agencies have increasingly used the rulemaking process to adopt onerous regulations that should be under the purview of the elected Legislature.

One of the most egregious examples was when the state Department of Labor & Industries adopted sweeping ergonomics regulations in 2000.  The complex and controversial rules would have significantly restricted how employers do business in Washington state.   Under the agency’s rule, many employees would only be allowed to work three or four hours a day, resulting in a significant reduction in their personal income and creating production issues for their employers.  The ergonomics regulations were estimated to cost the business community over $700 million a year with no scientific evidence the burdensome rules would actually reduce ergonomic injuries.

Even Governor Locke’s Competitiveness Council questioned the cost and necessity of the regulations.  The Seattle Times editorialized the job-killing ergonomics regulations are “overreaching, vague and costly...Washington should follow the federal government in keeping ergonomics requirements voluntary.”

Despite these concerns, and the fact Congress had previously voted to repeal the federal ergonomics regulations and forty-eight other states had rejected ergonomics regulations, L&I pushed forward with the new rules. 

An initiative was filed to overturn the agency’s precedent-setting rules.  I-841, which was supported by a bi-partisan coalition of business leaders, small business owners and elected representatives, was overwhelmingly passed by voters and the agency’s ergonomics rules were invalidated.

Senator John Braun has sponsored legislation that would ensure agencies do not overstep their authority and ensure the elected Legislature has the final say on new regulations. SB 6396 would prohibit agencies from adopting or amending a rule without first submitting it to the Attorney General for an opinion as to its constitutionality and legality.   The bill would also set a one-year expiration date on agency rules unless the Legislature passes legislation to extend the rule.  If the Legislature allows a rule to expire, agencies would be barred from adopting the rule again unless expressly authorized by statute.

SB 6396 is a common-sense solution to a very serious problem.   The rules adopted by agencies carry as much weight as those passed by the Legislature.  Citizens must comply or face legal and financial consequences.  But when unelected bureaucrats create such rules there is significantly less accountability, transparency and public debate than when elected representatives in the Legislature pass new laws.  Senator Braun’s bill would install a much-needed check and balance system on agency rulemaking activity.

SB 6396 received a hearing in the Senate Government Operations and Security Committee, but has not yet been voted on by the Committee.