Fighting Back Against the Regulatory State

“The inability of democratic assemblies to carry out what seems to be a clear mandate of the people will inevitably cause dissatisfaction with democratic institutions…. The conviction grows that if efficient planning is to be done, the direction must be ‘taken out of politics’ and placed in the hands of experts, permanent officials or independent autonomous bodies” (Friedrich Hayek, The Road to Serfdom)

There have been many bills and lots of activity in Richmond during this most recent session of the General Assembly. At times it is difficult, almost impossible, to keep up. Everyone who watches these proceedings has their favorite initiatives and ones they hope to see die. The fact is, however, that few Virginians pay any attention at all and you would be hard pressed to find more than a few of your neighbors who are even aware the Assembly is in session, never mind what bills they are considering.

All Virginians who favor limited government power should take note of one initiative, however, Senator Jill Vogel’s (R-Fauquier) “Regulatory Rollback Amendment,” SJ 295, and a similarly successful House version, HJ 545, offered by Delegate Christopher Head (R-17, which includes parts of Roanoke City, Roanoke County and Botetourt County). Vogel’s Amendment, SJ 295, passed the Senate for its first time on February 7th by a 21-19 margin. It reads as follows:

SJ 295 “[g]rants to the General Assembly the authority to review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement, or enforce. The amendment provides that after such review, the General Assembly may approve or reject, in whole or in part, any rule as provided by law and that the approval or rejection of a rule by the General Assembly shall not be subject to veto by the Governor.”

Constitutional amendments must be passed by both chambers in two consecutive years, and then be approved by the voters during state wide elections. The Governor cannot veto them. That is a good thing, because should it pass both chambers, and again next year, and be approved by the voters, the Regulatory Rollback Amendment could put the General Assembly firmly in control by giving them a de facto veto over the Governor’s administration when it comes to regulations.

In support of her effort, Jill Vogel (who is also a candidate for Lieutenant Governor, and who, full disclosure, I support) put out a statement saying, “I introduced this amendment because of the economic challenges Virginia faces in competing with other states for new jobs and investment. Strengthening our checks and balances and providing additional regulatory transparency will help right-size Virginia’s regulatory scope by maintaining the core regulations we need while easing the burdens imposed by rules which are outdated or overly broad.”

This may be the most significant legislative initiative of the year, and promises to be a major issue in the upcoming election as well as next year. Candidate Vogel is sure to benefit from popular support of reduced regulatory power. Conservatives know that the Executive Branch, whether in the Commonwealth or at the Federal Level, has increasingly used regulations to increase the scope and power of government – well beyond the intent of the legislative branch and the people, and therefore should be very pleased. Business people who know that the Governor and his administration have allowed Virginia to suffer from over-regulation and a decreasing competitive environment vis-à-vis other states should be optimistic. Freedom loving people everywhere who know that it is the legislature where their voice is most powerful should welcome the opportunity to fight back against the ever-growing administrative state. This initiative is a welcome move by the legislature to take back its rightful power to make law and seize back the control of what the state does from the “experts” and “permanent officials” who have promulgated regulations to substitute their judgement for the will of the people.

Senator Vogel and Delegate Head have seized on a mood, and they are spot on. The people are no longer going to permit the executive branch to legislate via regulation. After decades of regulatory growth, which often amounts to legislation from the executive, the people are primed to swing the pendulum back towards legislative branch power.  As Senator Black was quoted in the Richmond-Times Dispatch, “unelected bureaucrats who enact their own laws….diminishes the power of voters to influence their government.”

Without doubt this move will bring about a struggle, and opponents are already conjuring up fears of violations of the separation of power. The close votes before crossover (21-19 in the Senate and 54-40 in the House) are an indication of how difficult it may be for the people to prevail. Senator David Marsden was keen to make a stand, saying “We’re messing with the balance of power…,” and that the amendment is “very dangerous.” One would be correct in asking Mr. Marsden, “dangerous to whom?” I submit it is, in fact, dangerous to unelected regulators. Hopefully the voters will get to decide in 2018. If given the opportunity, it is likely they will opt for more power to the people, choose to roll back the regulatory power of the executive, and vote to get off of the Road to Serfdom. If they do, we will have Jill Vogel and Chris Head to thank.

So as to not post an article without an obligatory Trump reference, I quote the President during his inaugural speech. “January 20th, 2017 will be remembered as the day the people became the rulers of this nation again.” Hopefully Virginians are paying attention, and will once again assert their right to rule the Commonwealth.

  • MD Russ

    Yes, the old canard of “unelected, faceless bureaucrats trampling the freedoms of the people with no accountability.” I love it. Who appoints the heads of these regulatory agencies? The chief executive. Who confirms their appointments, passes the enabling laws that are the foundation of their regulations, and appropriates their operating budgets? The legislature.

    And yet, somehow, the voters have no say whatsoever in the regulations imposed on them? Senator Marsden is right. The key to balance of power is the veto authority of the chief executive, esp. when he is a member of the party in opposition to the legislature majority. Anything that weakens the veto power weakens the balance of power. Republicans should be very careful what they wish for. One day there will be a GOP governor and a Democratic majority in the GA. Then, it is going to hurt like Hell when the shoe is on the other foot.

    • Jay McConville

      It is more likely Republican Governors won’t feel the pinch of the legislature commenting on their regulations, as they are very less likely to support regulations as a way of increasing the power of government, and much more likely to be happy for the assist in paring back an over-reaching bureaucracy.

      • MD Russ

        See, there is the problem, Jay. People like you assume that government regulations are inherently bad and over-reaching. I don’t accept that. We live in a highly complex, technological society with one of the highest standards of living ever known in the history of human civilization. That means that regulations are necessary to ensure the health, safety, welfare, and economic security of the members of society. Traffic laws are government regulations. So are pure food and drug laws. So are securities and banking regulations. The list is endless and so is the “bureaucracy” necessary to formulate the regulations and keep them current. A few years ago, my wife and I invested almost a quarter of our net worth on the down payment for a house and farm to retire on. Without government regulations known as building codes, the house could fall down around our heads in the middle of a thunderstorm or burst into flames in the middle of the night from faulty electrical wiring.

        I don’t want to live in the society that the Libertarians envision.

        • Jay McConville

          Never did I say that all regulations are bad…never. But to argue that ALL regulations are good, and that bureaucracies tend to build their own empires, is to ignore the lessons of history.

          • MD Russ

            Never did I say that all regulations are good. But the bureaucracy can be reined in without changing the Constitution. Your advocacy of this amendment, it appears, is based on an objective to limit the power of Democratic governors, particularly the current incumbent. That is a political problem and not a Constitutional flaw.

          • Jay McConville

            So when some regulations are bad, and the administration uses them to increase power beyond what the legislature wants, who checks them? This amendment says it right…the legislature does. When the legislature runs afoul who checks them? The people do. Delegates stand for election every two years. That is good checking and balancing.

  • Nathan Larson

    I would favor amending the Virginia Constitution to eliminate elections for Governor altogether, and instead have the Governor serve at the pleasure of the General Assembly. That would be similar to how county boards of supervisors appoint a county executive, and can dismiss him at will. Separation of legislative and executive powers is poor governmental design, and ends up requiring awkward workarounds, such as Vogel’s proposed amendment, to keep the executive in check.

    • MD Russ

      You assume that the executive needs to be kept in check. Who will keep the legislature in check, esp. since the members are not term-limited like the Governor? It is called balance of power, Nathan.

      BTW, the reason that the Virginia Constitution prohibits the Governor from serving two consecutive terms is to lessen his power in comparison with that of the General Assembly. Let’s not make him any weaker than he already is, regardless of Terry McAuliffe. Amending the Constitution because you disapprove of an incumbent is banana republic politics.

      • Nathan Larson

        So let’s limit legislators to one term apiece, so we can get some new blood in there. I think it’s awesome that the governor can only serve one term. Look at all the people who have gotten an opportunity to serve as governor (and been able to use that as a qualification for higher office, such as U.S. Senate, President, etc.), and how quickly we’re able to get rid of a bad governor when we needed to, without having to worry that he would get re-elected. It has helped keep Virginia politics vibrant rather than boring and uncompetitive (as the legislative elections often are).

        Banana republic politics usually involves the executive resolving gridlock between himself and the legislative branch by seizing all power just so he can get stuff done. It’s one of the hazards of a presidential system (as opposed to a parliamentary system).

        The most important check is the check on the executive, since the legislature is a less dangerous branch, given that it doesn’t have cops under its command. Most of the populous counties choose to have their police department under a chief who is accountable to the board of supervisors, rather than give all that power to a separately elected sheriff, for that reason.

        • MD Russ

          You will never get an argument from me about not having term limits. But one term is probably too short, given the length of the legislative session. Too much on-the-job training for the members gives enormous power to the staff, who really are “unelected, faceless bureaucrats.” As with all political matters, there is most likely a good compromise between one term and a career in the General Assembly.

          BTW, you have to wonder why someone would raise and spend over half a million dollars to win a state senate seat that pays $18,000 per year. Term limits would certainly reduce whatever motivators that are in play to make such a bad investment attractive.

          • Nathan Larson

            The staff can be powerful even when the appointment is for life (as in the case of the U.S. Supreme Court). It depends on what the workload is. If there’s not enough time for legislators to read all those bills, then staff will be pretty influential.

            In third world countries, people use their political power to obtain money. In the U.S., people use their money to obtain political power. I guess it’s just supply and demand. In the third world, wealth is what’s harder to come by, so officials will become corrupt for a relatively small bribe. In the U.S., wealth is relatively abundant, so political power is what’s scarcer (given that there’s only a fixed amount of it available, kind of like real estate) and therefore what people are willing to trade a bunch of money for.

            Arguably, the higher you make the salary, the less corruption there will be, because people will run for office just to get the salary rather than so they can make money off speaking fees, which are just a way that people pay for access to politicians who may be on their way up to higher offices. Of course, if someone like The Donald is running, he doesn’t need the salary or the speaking fees or even the campaign donations all that much.

          • MD Russ

            Agree, except for the last paragraph. Donald’s assertion during the primaries that he would “self-finance” his campaign was absolutely bullshit. First, he borrowed tens of millions of dollars from his own companies at standard interest rates which the campaign repaid–to his companies. Then, he took tens of millions of campaign donations from billionaires. How do you think that Tillerson (ExxonMobil) and DeVos (Amway) got cabinet appointments that they had absolutely no qualifications for?

            And all the while, blue collar workers are eating up his bombastic nonsense about how he is working for the “forgotten workers” and will bring jobs back to MAGA. Meanwhile, his sons are traveling to the Middle East at US taxpayer expense with Secret Service protection details to open another Trump resort in Dubai. P. T. Barnum was right.

          • Nathan Larson

            Hmm, this is an interesting point. But given our two-party system, I can imagine that if I tell Trump supporters this, they will say, “He’s still better than Hillary! Whatever he had to do to get in there is worth it.”

          • MD Russ

            That logic always amuses me: Trump is bad, but Hillary is worse.

            Hillary: Clinton Global Initiative
            Trump: Trump Enterprises, Trump University, et al

            Hillary: Secret email server with classified information
            Trump: Discussing classified North Korean missile data in a public dining room and making situation room calls on an unsecured Android cell phone

            Hillary: Lying about Benzhazi
            Trump: Lying about, well, just about everything from his campaign finance self-funding to Michael Flynn

            It would be funny if it wasn’t so sad.

          • MD Russ

            More.

            Hillary: Arrogant, out-of-touch bitch but who can connect with liberal feminists
            Trump: Arrogant, out-of-touch bastard but who can connect with redneck racists

            Hillary: Dismal failure at foreign policy, weakening the US standing in the world through incompetence
            Trump: More of the same

            Hillary: Favors wars of convenience like the pointless bombing of Libya
            Trump: Fire up the Enola Gay and hand me the nuclear codes; fuck NATO

            Hillary: Make the wealthy pay their fair share of taxes; wealth redistribution is good–except for me and Bill
            Trump: Taxes? No, I won’t release my tax returns because 1) I don’t pay taxes and 2) I’m not worth near as much money as I claim that I am. Did you really believe that I was going to run for President on my own dime?

          • Nathan Larson

            The voters usually just want a candidate who’s going to pay lip service to the values they support. Trump knew that, and was happy to oblige.

            “Lock her up” was a prime example. Nobody cares that Hillary isn’t actually going to prison. Trump’s supporters are just happy that he SAID he was going to send her to prison.

            It was about making a point. They showed her who was boss by electing a candidate who said he wanted to lock her up. It doesn’t matter that he won’t actually follow through with on his threat. The fact that maybe he COULD follow through with it, by appointing a special prosecutor, if he wanted to, is enough to satisfy them.

            It’s like when a schoolyard bully acts like he’s going to hit you, and then is satisfied just at making you flinch in front of all the other kids. He doesn’t actually have to beat you up; he just wanted to show that he could make you afraid he was going to beat you up.

            I see a dynamic now, in which people have such animosity toward leftists and the mainstream media that a politician can get a lot of votes just by provoking outrage, indignation, and moral condemnation from these groups. The more the talking heads on the news say, “Trump’s talk is very dangerous, and reminiscent of Hitler and other autocrats,” the more people say, “Oh, good, the media doesn’t like him. That must mean he’s a good guy.”

            I think this was what Trump meant when he (hyperbolically) said he could shoot someone and still win the election. If he shot someone, Hillary Clinton and the media would’ve denounced him, and people would’ve said, “Wow! He’s so brave to do whatever he wants, and not care what the ruling class and their puppets in the media think. I’m gonna vote for him, because if he has enough cojones to shoot a random guy in the street, he probably has enough cojones to stand up for my interests against the privileged elites.”

  • Randy Janssen

    Jill Vogel don’t like Mexicans. Please watch this:

    https://youtu.be/YzgC6Rtk420

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