Book Reviews

Legislative rulemaking:
pros and cons

By DAVID H. EVERSON

James R. Bowers. Regulating the Regulators: An Introduction to the Legislative Oversight of Administrative Rulemaking. New York: Praeger, 1990. Pp. 140 with appendix, references and index. $38.95 (cloth).

What happens when the Illinois General Assembly attempts to "regulate the regulators"? James Bowers' case study of the Joint Committee on Administrative Rules (JCAR) illustrates once more the sheer perversity of political reform. What is intended is seldom fully achieved; what is not intended, often is.

Bowers, who has a Ph.D. in political science from Northern Illinois University and is now an assistant professor at St. John Fisher College in Rochester, N.Y., examines one of the most important, yet most obscure issues in representative government - abuse of bureaucratic discretion. The problem results from the growth of administrative rulemaking — the establishment by the bureaucracy of rules that have the force of law. Administrative rulemaking is inherent in modern government, but the potential for abuse is substantial. Over 40 states have some form of rules review, and JCAR had its origins in this national movement.

Why does this arcane issue matter to the average citizen? As Bowers explains, many more administrative rules are promulgated each year than statutes. Ironically, one of the reasons is the inability of legislatures to enact precise laws; therefore, legislative authority is "re-delegated" to agencies. The critical issue is whether their exercise of this authority is always consistent with legislative intent. In an extreme case, a runaway bureaucracy could become an unelected super-legislature, frustrating representative government.

Bowers informs us that two devices have been invented to check administrative discretion in rulemaking: the legislative veto and rules review. The legislative veto is a controversial device whereby one or both houses of a legislature may veto proposed regulations. The legislative veto is ordinarily not subject to check by the executive branch. Although the veto has been adopted in Illinois, it is rarely used, and its status is in doubt because of the U.S. Supreme Court decision in Immigration and Naturalization Service v Chada (1983), which found that the legislative veto violated the separation of powers.

Bowers explains that rules review has been employed at the state level since the early 1940s; its frequent use began in the late 1960s. Part of the motivation for rules review in Illinois and elsewhere was to respond to complaints from business and other sectors about "burdensome" over-regulation. Rules review is "usually part of a state's administrative procedure act requiring all state agencies to submit all proposed regulations to a specifically designated committee for its prior review or prior approval before the regulations are formally adopted and implemented by the issuing agency." Now that the legislative veto is effectively dead in Illinois, rules review is advisory.

Bowers uses personal interviews, observation and examination of public records to scrutinize the way rules review has worked in Illinois. JCAR was not cooperative with his study; indeed, he had to use the Illinois Freedom of Information Act in order to gain access to some of JCAR's files. In general, though sympathetic to the goals of rules review, Bowers is critical of the way the process has evolved in Illinois.

His major conclusions, based on the Illinois experience, are (1) that, although policy neutrality is a goal in rules review, it is not always possible; (2) that, for most legislators, rules review will have little legislative relevance; (3) that eventually rules review will become the domain of the small group of legislators for whom review does have relevance; and (4) that the senior staff of the reviewing agency can dominate the process so that, in effect, a new legislative bureaucracy will be regulating the old one. Bowers also argues that much of the "rules review undertaken by JCAR's staff appears to be driven by staff management's interest in organizational survival."

The effectiveness of rules review is highly dependent upon voluntary compliance of the state agencies. That compliance, in turn, is affected by the relationship between the rules review agency and those under review. In Illinois, these relationships are adversarial. Bowers asserts that Illinois agencies have a "remarkably low level" of compliance with "committee objections that question the statutory authority of their proposed regulations.'' Although rules review in Illinois is advisory, the General Assembly as a whole can enact corrective legislation, and Bowers gives us a case study of a conflict between JCAR and the Illinois Department of Nuclear Safety in which a legislative compromise was ultimately reached.

Bowers draws two general conclusions about the utility of rules review: First, ". . .it clearly provides some degree of oversight of the administrative discretion in rulemaking," and second, " . . .an advisory rules review process can educate state legislators to the importance of revising rulemaking authority in light of administrative experience and . . . [make] state agencies responsible to the rule of law rather than the vague expectation of informal politics.'' This is a far cry from reasserting legislative control of runaway rulemaking.

Regulating the Regulators is not light reading, but it is a clearly written and a perceptive look into the Illinois General Assembly's wrestling with the problem of administrative discretion and the creation of its own little bureaucracy.

David H. Everson is professor of political studies and public affairs at Sangamon State University. He is also editor of Comparative State Politics.

January 1991/Illinois Issues/29