GOP legislators pushing new bill to change Idaho Legislature’s administrative rulemaking process

A new bill in the Idaho Legislature would make significant changes to how legislators approve state administrative rules, which can address everything from public school academic standards to hunting license fees to Idaho Department of Health and Welfare rules to immunization guidelines. 

The rules review process is a complicated and nuanced process that falls to the Idaho Legislature each year. Rules are important because of how many there are and because once rules are adopted, they carry the force of law. 

One of the hallmarks of the rulemaking process currently is that it takes both legislative chambers — the Idaho House of Representatives and the Idaho Senate — to reject most pending rules that don’t involve a fee. That means it only takes one legislative chamber to approve a pending rule, which has contributed to a yearslong fight of authority and influence between the Idaho House and Idaho Senate. 

The new bill would change that process so that both legislative chambers would have to approve a pending rule for it to be enacted. 

If enacted into law, the bill would make several other changes:

• All administrative rules would be put on a staggered eight-year expiration cycle, which would ensure the rules are periodically reviewed.
• State agencies would be required to accept remote public testimony on proposed administrative rules by video conference or over the phone, in addition to the current requirement to accept public comment orally or in writing. 
• Recordings of public testimony would be required to be posted on the agency’s website for at least three years. 

The new bill was sponsored by House Speaker Mike Moyle, R-Star, and presented to the House State Affairs Committee by Rep. Vito Barbieri, R-Dalton Gardens. 

“The complexity and volume of the rules themselves are so vast that it is very difficult for a part-time Legislature to get their hands around and address the volume of the administrative rules that we are constitutionally allowed to review and approve,” Barbieri told the committee on Wednesday. 

“This is a fundamental change,” Barbieri added. “As you may know, one house approving a rule and another house rejecting a rule — unless it’s a fee rule — that rule has become effective.”

Idaho Legislature’s rules review process has led to disagreements in the past

The Idaho Legislature’s rules review process has led to big disagreements and power struggles between the Idaho House and Idaho Senate in recent years. For example, in 2020, the House Education Committee voted to repeal all the academic public school standards in English, math and science, Idaho Education News reported. But the Senate voted to approve academic standards, essentially overruling the House Education Committee and infuriating some House Republicans. 

The fights over rules goes back even further. Beginning in 2019, the Idaho Legislature allowed all of the state’s administrative rules to expire each year, forcing Gov. Brad Little to republish thousands of pages of rules each year. By allowing the rules to expire, that ensures legislators will have the opportunity to review those rules each legislative session. 

The House State Affairs Committee voted to introduce the new administrative rules bill on Wednesday, which clears the way for the bill to return to committee for a full public hearing. 

The new bill did not yet appear on the Idaho Legislature’s website Wednesday afternoon, likely because it was amended on the fly during its introductory hearing that morning. The bill is expected to be posted online later Wednesday or on Thursday. 

The new bill about administrative rules is the latest example in a series of nuanced and complex changes Republican legislative leaders are pushing this session that could result in significant changes to how the Idaho Legislature does business. 

Other examples include: 

• House Bill 68, which would eliminate the bipartisan committee that oversees the independent Office of Performance Evaluations and move that office’s oversight to the GOP-controlled Legislative Council. 
• Moyle’s effort to change how the Joint Finance-Appropriations Committee votes and split the committee’s votes between House and Senate members. On Feb. 9, JFAC co-chairs announced they had reached an agreement where JFAC would continue to vote jointly but the House and Senate votes would be announced separately. The GOP’s agreement also indicated JFAC co-chairs would continue to look at the voting process during the interim period after the 2023 legislative session ends. 

Moyle’s decision during the organizational session to remove one of the two House Democrats serving on JFAC, which Democratic leaders said is unfair and leaves them underrepresented on the powerful budget setting committee.