Analysis: Legislature cedes rulemaking approval to Little

By Melissa Davlin

Over the last several years, the Idaho Legislature has paid closer attention to the administrative rulemaking process — a critical bureaucratic function of the government in which departments and divisions create rules that specify how certain statutes are carried out.

But in an attempt to center more power with the Legislature, the House and Senate just surrendered significant authority to Gov. Brad Little.

At the end of the 2019 session, the legislature failed to reauthorize the state’s existing rules, as they normally do every year. The reason: A fight between the House and Senate over how those rules should be approved. Currently, just one body’s vote ensures a rule is approved. The House wanted both bodies to sign off to save a rule from rejection, giving the legislature more control over the process.

Without any action from Little and his staff, all 8,000-plus pages of those administrative rules would expire at the end of the fiscal year on July 1.

Instead of calling a special session to make lawmakers finish their homework, however, Little is using his executive authority to re-up those rules. And in the process, “Governor Little ultimately will make the decision before July 1 whether to let a rule expire,” according to a Tuesday press release from his office. 

Administrative rules have the full force of law, and cover a wide range of topics — which immunizations school children need, what types of medications pharmacists are allowed to dispense, what an electrician needs to do to get a license. Common core curriculum is in administrative rules, as are the hotly debated climate change standards.

While Little has said he didn’t want this to happen, and that he doesn’t plan any major changes, he still has ultimate authority over which rules will carry over into the next fiscal year.

Agencies will also get the chance to weigh in.

“Governor Little’s administration will use the unique opportunity to allow some chapters of Idaho Administrative Code that are clearly outdated and irrelevant to expire on July 1, 2019,” the press release states. “An agency must notify the Division of Financial Management (DFM) if it identifies a rule that could be eliminated. DFM will solicit public comment on any proposed rule elimination.”

In a fight over an obscure bureaucratic process, this could either set a wild precedent for future years, or teach the legislature to finish its chores before leaving to play.


Renewing urban renewal

By Seth Ogilvie, Idaho Reports

The Idaho tax commission recognizes 86 urban renewal districts in Idaho. House bill 217 will significantly change how they operate.


The bill has been characterized by many as an attack on the Boise library and stadium projects, but the other 86 districts will have to follow the same rules.

The significant change coming to urban renewal in Idaho is how much money is required to force a vote. A vote, after Governor Brad Little signed the bill, would now be necessary if 51% of the money used on a project was urban renewal money or “any other public funds, not including federal funds or federal funds administered by a public body.” The project would also have to exceed one million dollars.

The election would work much like a school bond election, but unlike a school bond election that requires 2/3rds of the voters to pass, these elections would require only 60% of people to approve the project.

Proponents of the bill argue this will create more civic engagement and accountability within the system. They say people who live within the urban renewal district would have greater control over how their tax dollars are spent.

Senator Maryanne Jordan thinks the bill will have unintended consequences because the law does not distinguish between urban renewal money and other public funds.

Sen. Jordan laid out this example; “a city saves $2,000,000 to remodel their City Hall. The urban renewal district contributes $30,000 to a public plaza outside the building. A plaza is not an exception under the statute, so the whole project is forced to a vote.”

The project would then have to be delayed until the next scheduled election, or a special election would have to be called. “The special election will cost more than the urban renewal contribution,” said Sen. Jordan, “for what amounts to 1.5% of the project.”

The election could also have an unintended impact on contractor availability and costs. Developing construction bids for city projects that are still uncertain may be unappealing to contractors, driving up prices or leaving cities without options for building their projects.

Over the next few months, local government officials across the state will likely meet with lawyers and experts to find out if any of these unintended consequences will come to their town.


Voter initiatives and administrative rules bill DOA in Senate, Winder says

By Melissa Davlin, Idaho Reports

While the House was at ease to add in amendments to Senate Bill 1205 — changing the Senate legislation into a previously rejected House version that would force both bodies to approve administrative rules — Senate Majority Leader Chuck Winder told reporters in no uncertain terms that the amended bill was dead on arrival.

Why? First of all, the Senate had already rejected the House’s proposal about two months ago, Winder said. He also cited previous administrative rules fights, such as one over whether climate change should go into Idaho’s public school curriculum.

“In that case, I think common sense prevailed,” Winder said. He doesn’t want to give the House more authority over the rules.

Also dead on arrival? House Bill 303, which resurrects part of the previously vetoed voter initiative bill. Winder said he supports the idea of the legislation, which would require initiatives to have a fiscal note and funding source, as well as focus on a single topic. But, he said, it’s too late in the session to consider it. Expect it to come back next year.

Does the House have any recourse? They just passed their last appropriations bill — the budget for the State Board of Education — but they will have to approve the trailer bills for the Medicaid work requirements appropriations passed out of the joint budget committee on Tuesday.

In other words, this isn’t over yet. (But all signs point to sine die. And we all hope that’s the case.)


What we know now

By Seth Ogilvie, Idaho Reports

The quote of this year’s legislative session, uttered in so many variations that it would be unfair to attribute it to one individual, was that “the people did not know what they voted for in November.”

As the session nears an end, it might be the time to entertain the idea that these legislators and lobbyists are right.

Rep. Megan Blanksma and the rest of legislative leadership promised a session with better communications and transparency. Instead, the legislature has delivered last-minute, almost secret meetings, they banned the people from photographing how their elected officials voted on critical amendments, and continued ahead with vastly unpopular legislation despite hoards of people testifying to the contrary.

Gov. Brad Little also promised a new level of transparency and competency. As he entered the office, Idaho citizens expected a younger, bolder version of C.L. “Butch” Otter, an Otter 2.0, the newer version with all the latest bells and whistles.

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This legislative session points to us having received an Otter Beta. In the state of the state, Little rolled out only one novel idea, the homeowner’s savings account. That idea currently sits in a drawer with little chance of going anywhere.

Otter could have given the rest of Little’s State of the State speech last year, and in fact, many of the ideas turned into law Otter had put in previous speeches. Teacher raises had been a core principle of Otter’s taskforce; the third-grade literacy initiative was one of Otter’s main talking points for years. If the governor’s office sat empty this year, it’s hard to imagine the legislative session going much differently.

Little did appoint new staff, and they are happy to tell you they have several new people in new positions, but a majority of the people in the high profile positions are Otter department heads and staffers who were merely moved to a new role. The titles are different, but the people are the same. The Otter team is still intact, just in slightly different positions.

That leaves the one significant change: Little’s use of the veto. Otter did have a few high profile hiccups, and it appears Little wanted in on the action.

Little vetoed the ballot initiative bill on Friday. In that veto, he made several claims, the first being that “the bills invite legal challenges that likely will result in the Idaho initiative process being determined by the liberal Ninth Circuit Court of Appeals.”

The veto also cited “the same Circuit that recently decided Idaho should pay for gender reassignment surgery for a transgender inmate serving time for molesting a child.”

Idaho Reports asked the governor’s office why the veto connected transgendered people to child molestation, and if Little believes that transgendered people and child molestation is related.

In a statement to Idaho Reports, the governor’s office said they didn’t want to expand on the veto “further than what is stated in his transmittal letter to the Legislature.”

At the beginning of the legislative session, Little told the press he would be incredibly open and transparent. Apparently just not on the most significant decisions he makes.

That leaves the people of Idaho not knowing if the governor thinks transgender people have a propensity for child molestation or what the topic has to do with a ballot initiative.

On Tuesday, Little signed into law the Medicaid sideboards bill. Signing the bill apparently was a surprise to whoever posts news on the governor’s official website. The website initially referred to the transmittal statement as a  “veto letter.” The letter was also published with large chunks missing. The mistakes were corrected soon after, but not before members of the public and press corps noticed. A call to Little’s office hadn’t been returned by the end of the day.

Even when Otter turned in his late veto, he turned in the complete statement and knew he was vetoing the bill rather than signing it.

This year is also the first in years that Idaho Reports didn’t have an interview with the governor during the legislative session. That isn’t for lack of trying. Idaho Reports had an interview scheduled with Little for Feb. 27th, but that week, Little’s office canceled, citing scheduling conflicts. Little’s office declined to reschedule, offering instead an interview after the session.

As we reach the end of the legislative session and entertain the question of whether people knew what they were voting for, it would probably be a good idea to ask if the legislature has been transparent and responsive to the people. Has the governor’s office been fresh, open, competent and laid out a bold new agenda? Then discuss whether people were informed when they voted.


Who watches the watchers?

By Devon Downey

Freshman Senator C. Scott Grow has become the center of Idaho politics this year because of his initiative bill, S1159. Proponents argue it gives rural Idahoans more say while also modernizing the process. Opponents call it unconstitutional and punitive. Governor Little said in his veto letter that “the bills invite legal challenges that likely will result in the Idaho initiative process being determined by the liberal Ninth Circuit Court of Appeals”.

S1159 would’ve reduced the time petitioners have to gather signatures by two-thirds. It would’ve increased the percentage of registered voters needed in each district from 6%-10%. It would’ve also increased the number of districts required from 18-32, among other changes.

The bill saw a strong public backlash. The House tried to address the criticism and introduced a trailer bill, H296.  It took the house two days to craft, debate and, pass the legislation. H296 would’ve made it so that the time reduction is only half (270 days as opposed to 18 months) and made it so that instead of 32 districts being needed to sign on, 24 districts would’ve been required.

Together, the changes would’ve reduced the time allowed to gather signatures by half, increase the signatures needed by nearly 67%, and require 6 more legislative districts to qualify for the ballot.

These bills drew bipartisan condemnation from across the state, with four former Attorneys General, the previous Secretary of State, and multiple newspaper editorial boards to request this bill be stopped before the Governor vetoed the bills.

So how did legislation as unpopular as these two bills make it to the governor’s desk? Partially because of Idaho lawmakers fears of outside money.

Senator Mary Souza argued that the bills were needed because “big money, whether it is from within the state or outside the state and very professional management groups are being used to bring in high technology… to pinpoint votes all over the state.” When debating H296, Souza continued by quoting a LA Times article about a California labor union that invests in The Fairness Project (a political committee that spent over $500,000 in both itemized and in-kind contributions to Idahoans for Healthcare in favor of Prop 2). “That [union] is simply one example of national groups that are targeting voter initiatives across the country as a way to advance their own agendas.”

These concerns cross political ideology, but with how much of the debate focused on outside money coming to the initiative process, we started looking at how this impacts other elections. Candidates also need to raise money for their own elections. Presumably, any concerns about influence from contributions by those outside of the area should also carry over to the legislators themselves. That means legislators should be just as concerned about money that is contributed from outside of the state or their districts as they are about outside money for initiatives.

Grow being at the center of the initiative bills means that he should be sensitive to these concerns, right?

Combing through the campaign finance data shows two things. First, that Grow didn’t gather the 50 signatures to qualify for the ballot but instead opted to pay the $30 fee to the Secretary of State. Second, it turns out that a majority of his money came from outside of his district.

Grow raised an astounding $114,000 for his 2018 campaign. For context, that was more than the winning candidates for Secretary of State, Treasurer, Superintendent of Public Instruction, Controller, and Attorney General raised.

Of that $114,000, $102,525 were itemized contributions to his campaign; the rest were either in-kind donations or below the reporting threshold. 61% of his itemized contributions came from outside his district. If that number sounds familiar, it is because 61% is roughly the same percent that Proposition 2 passed with statewide. Just over 55% of all of his contributions came from outside of District 14.


While this is a large amount of money for a legislative race, it should be noted that one of his primary opponents raised over $80,000 and another over $30,000. District 14’s Republican Primary for the state senate was highly competitive, with five candidates receiving more than 10% of the vote. Grow won the primary receiving only 35.2% of the primary vote.

Grow’s main argument for his bill was that rural Idahoans deserve to be a part of the process, but it is hard to classify his own district as rural. District 14 has the largest number of voters, and because of the growth of the Treasure Valley, has seen many new residents since the last time districts were drawn.

The totals in District 14 also implies that his district likes having the initiatives. Both propositions passed in District 14, and over 98% of ballots cast in the district voted on the propositions.

Rep. Heather Scott noted in her floor debate against the initiative bills that Idaho’s demographics are changing, and that seeing the writing on the walls is not a good enough reason to change constitutional protections. She also expressed her disappointment that her constituents and their policy ideas are rarely taken up by either chamber of the legislature.

As supporters of Proposition 2 noted, having frequent ballot initiatives like California can be problematic. Reclaim Idaho founder Luke Mayville told the state affairs committee that it should be hard to get an initiative to qualify for the ballot so that doesn’t happen.

Money and influence in politics are universally panned, but as the Supreme Court has clarified, political spending and campaign contributions are considered protected speech under the First Amendment. While none of the money raised by either Proposition 2 or Senator Grow for their campaigns was illegal, concerns about out of district and out of state money are rampant.

For legislators who feel that there is undue influence on the ballot box by outside money, a better way to deal with the problem directly may be to tighten up the campaign finance rules.


Tribal exemptions for work requirements? Arizona set the precedent.

By Melissa Davlin, Idaho Reports

In today’s Medicaid expansion debate, expect to hear more questions about why the work requirement proposal exempts members of American Indian tribes.

The issue came up in the March 21 House floor debate on expansion, with both Reps. Fred Wood and Mat Erpelding expressing concern over House Bill 277 exempting tribal members from proposed work requirements. (Though the Senate Health and Welfare Committee held 277 in committee, the Senate as a whole reconstructed it in amendments to Senate Bill 1204, which the House is amending Thursday.)

So why is the exemption in the bill? It comes down to tribal sovereignty. A 1974 Supreme Court decision, Morton v Mancari, recognizes tribes as separate political entities.

In other words, the exemption isn’t based on one’s ancestry or race. Rather, an enrollee would be exempt from work requirements only if they are a member of a federally recognized tribe. So if someone has American Indian ancestry, but they aren’t a tribal member, they would still be subject to those work requirements.

Arizona set the precedent by adding exemptions into its Medicaid work requirements for tribal members last year. In January, the Centers for Medicare and Medicaid Services approved the request, after initially saying it believed the exemption would violate equal protection laws.

According to the Associated Press, Maine and Wisconsin allow tribal members to satisfy requirements by working in tribal work programs, and Maine also exempts tribal members from paying premiums. 

In an April 3 joint letter to members of the House, representatives from Idaho’s five federally recognized tribes supported the inclusion of the exemption in Senate Bill 1204, and hinted at a lawsuit if the exemption is removed by lawmakers. “American Indian and Alaska Native populations are treated distinctly under the Affordable Care Act (ACA), which makes it appropriate for states who implement ACA programs to mirror that treatment,” the letter says. “As counsel for the tribes, we view the tribal exemption as a significant legal issue and one we would very much like to avoid if possible.”


If they opposed it, why didn’t they kill it?

By Melissa Davlin, Idaho Reports

Have some questions after House Health and Welfare sent the Medicaid requirements bill to general orders? I did too! Here are a few answers.

-Why did the five Republicans who opposed the original work requirement bill vote to send the Senate bill to general orders instead of kill it? Because there are some needed tweaks, like a waiver to use Medicaid funds to pay for mental health care, said Rep. Jarom Wagoner, vice chair of the committee. Wagoner acknowledged it’s a long shot that the House will vote for just those uncontroversial tweaks to Medicaid expansion, but it’s worth a shot, he said. Expect multiple amendments, some of which will compete with each other. 

-Is the court decision striking down work requirements on the House’s radar? Yes, said Rep. Megan Blanksma, House Majority Caucus Chairwoman and member of the committee. But, she said, she doesn’t know what will come out of those discussions. As of Wednesday’s committee meeting, the House hadn’t had a chance to caucus and examine the Senate’s amended bill.

-Will we see amendments before they hit the House floor? Only if the amendment authors choose to release them to the public and reporters. Typically, those amendments and fiscal notes are submitted directly to the House clerk, and no one sees them until the House takes them up. That said, authors can choose to share them ahead of time.