by Frank Knapp, Jr., The State
Complying with state regulations is a time-consuming and expensive proposition for businesses and citizens. Essentially, these regulations are nothing more than laws from our state government that must be followed. But, unlike legislation that is passed by our elected leaders in the General Assembly, regulations written by government employees actually go into effect without an affirmative vote by our legislators.
The business community and many legislators have long thought this process to be ironic and wrong. Why should laws written by the people we elect require a positive vote by our Legislature, but regulations written by agency staff go into effect without the same affirmative legislative review?
In an April 1 editorial, The State argues for the existing process, saying that agencies are simply writing the steps people need to take to comply with laws passed by the General Assembly. If the lawmakers don’t like the way a regulation is written, they have 120 legislative days to pass a joint resolution to block the regulation before it goes into effect automatically. Plus, any existing regulation can be overridden by new legislation.
In theory this separation of legislative and executive responsibilities may seem practical; in reality, this process often favors state agencies, which, with only a few supporters in the General Assembly, can thwart the wishes of the majority of our legislators and allow unnecessary or unfair regulations to become law, creating problems for businesses and individuals. This can happen because, as The State correctly points out, “a determined minority of lawmakers” can stop a law from passing, including a joint resolution to block a regulation.
The unintended, negative consequences of the current process can be seen in this example. On May 5, 2001, a state agency promulgated a regulation. On April 3, 2002, a joint resolution to block the regulation was introduced, stopping the 120-day clock with only 18 days remaining before the regulation would have gone into effect automatically. The joint resolution was not passed that year, however the proposed regulation, by law, was still alive.
When the new two-year session started on Jan. 14, 2003, the 120-day clock started again with only the 18 days remaining. Then on Jan. 29, 2003, another joint resolution to block the regulation by the Agriculture, Natural Resources and Environmental Affairs Committee was introduced, stopping the clock again just two days before the regulation would have gone into effect.
So far this joint resolution has stalled in the Legislature, and if it fails to pass this year, by the third day of next year’s session this regulation will go into effect unless another joint resolution to block it is quickly introduced.
This is exactly how a regulation in 2000 regarding the development of subdivision water supply and sewage treatment and disposal systems went into effect, causing so many problems for the home builders of our state that the regulation was finally modified this year.
The S.C. Senate soon will vote to make the long-needed change to this process. A bill will require all promulgated regulations receive legislative affirmation before they can become law. Other states that have similar provisions have not found the process to be cumbersome or unconstitutional, as some have warned.
If this bill had been a regulation, the 120-day legislative clock would have allowed it to become the law by now. But instead, this bill requires an affirmative legislative vote. So should all regulations.
Mr. Knapp is the president and CEO of the S.C. Small Business Chamber of Commerce, www.scsbc.org.