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Legislation of the Year

Hundreds of bills have been enacted into law over the last few months and, of course, even more got flushed down the proverbial gender-neutral toilet. The media has blown up stories over bathrooms, counselors, Bibles, and guns, but I think one of the best bills passed this year is one you never heard of. It could prove to be very important in controlling state government. And its potential impact became even more apparent by the Fourth Circuit’s “bathroom bill” ruling this week.

Try to stay calm as I tell you that the bill made changes to the Uniform Administrative Procedures Act. How, you think, could a person like me be excited about something as boring and irrelevant sounding as administrative procedures? I’ll tell you what the bill did that is so good, but you have to understand why the regulation of administrative procedures is so important.

In case you don’t know, administrative rules and regulations issued by government agencies are increasingly subversive of representative government.

The best, most current example is what has happened with Title IX. When Congress enacted Title IX, it prohibited discrimination in educational opportunities on the basis of sex. But Congress left its job undone (as is par for the course anymore), because it didn’t spell out how the law applied in a variety of situations, like with bathrooms and locker rooms.

So the U.S. Department of Education (DOE) started promulgating regulations to “interpret” the law, and those regulations have the force of law the same as if voted on by Congress. Congress lets DOE and its other agencies run wild.

For example, for two years Congress has let the Department of Education run around telling schools that the word “sex” in Title IX really means “gender identity.” Now the Fourth Circuit Court of Appeals said that what the department has been saying goes as law unless Congress does something to change that in the future (which it won’t).

But unlike Congress, Tennessee’s Legislature has done something about agency regulations. Except in certain instances, agencies must bring their rules and regulations before the House and Senate Government Operations Committee for review. When I was in the Senate (then controlled by Democrats), they were affectionately called the Government Oops Committees, because they had no power to do anything and consequently did nothing.

That has changed in recent years as the committees have increasingly used their power to discontinue agencies to “encourage” them to make changes. That has been good, but Senate Bill 2389/House Bill 2068 literally takes some power back from the government agencies.

First, the agencies can no longer just say to the committees that they need some regulation and explain why. The agencies must “demonstrate [to the committees], by convincing evidence, that consideration of [certain] factors . . . in their totality, justifies the continued existence of an agency rule.”

Those factors now include such things as proving that “the rule is necessary and essential for the agency to serve persons affected by the rule” instead of just necessary for “public policy considerations,” the old law. The agency must show that “the rule will result in economic efficiency for persons served by the agency and persons affected by the rule.” In other words, the question now is more whether the regulation is good for us, not the agency.

But the new law also gives the Government Operations committees a new power. In the past, the committees could vote to ask the agency not to adopt a rule, but that was it. Now the committee can vote to request that the General Assembly repeal the regulation. This isn’t huge, but a vote of a 19-member committee directed to the 99 members of the General Assembly to the effect that a regulation should be repealed will carry a lot more weight in the consideration of legislation to repeal that regulation than if the legislation was simply filed by a legislator unhappy with the regulation.

The Legislature beginning to assert its control over government agencies that can pour out rules and regulations faster than citizens can keep up with them is a good first step toward restraining government and putting government back in the hands of those who are more accountable to the people, our legislators instead of bureaucrats. Thank you, Sen. Bell and Rep. Daniel for bringing this legislation.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Statement on Sponsors’ Decision to Postpone Action on SB 2566

FRANKLIN, Tenn. (February 19, 2014) —The following statement was made by David Fowler, president of The Family Action Council of Tennessee, regarding the decision this week by the sponsors of Senate Bill (SB) 2566 not to proceed with the bill. SB 2566 would have prohibited the government from forcing religious organizations and business owners to participate in certain activities in connection with private marriage ceremonies that violate their sincerely held religious beliefs.

Fowler stated:

Because the language of Senate Bill 2566, as filed, was over-broad in some respects and too easily subject to interpretations that could lead to unintended consequences, the bill’s sponsors decided not to proceed with the bill this year.

However, the issues raised by the bill need to be addressed because they are vitally important to ensuring respect for the fundamental liberty in our country: religious liberty.

Therefore, our organization encourages the state legislature to address the issue of religious liberty raised in this bill in its session next year.  We look forward to seeing legislators enact legislation that prohibits government from forcing people in private settings to engage in activities that violate their religious beliefs.

The Family Action Council of Tennessee, which Fowler heads, was formed in 2006 by a group of citizens concerned about the growing negative impact of public policies on the family. FACT’s mission is to equip Tennesseans and their elected officials to effectively promote and defend a culture that values the traditional family, for the sake of the common good. For more information, visit factn.org.

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Hot Waters May Brew Strong TEA For Election Day Party

Should an employer make an investment to grow a business and create more jobs if the government can change the rules in a way that favors his or her competitor? Of course not.

U.S. Representative Maxine Waters (D) recently said the TEA Party could go “straight to hell.” Okay, her words were not appropriate, but maybe there’s a sense in which we should hope she gets her wish.

In a speech this past weekend, Representative Waters was certainly hot about the TEA Party. In a community meeting at which folks were hot over the economy and lack of jobs, Representative Waters got fired up. Essentially her remarks were a way of trying to redirect the people’s ire at the TEA Party because, in Waters’ opinion, it prevented the increase in government spending she thinks is necessary for the government to create jobs.

Are we so blind as not to see from the last 50 years or so that the government does not do a good job at creating private sector jobs? Rather than creating private sector jobs, the federal government is doing a pretty good job of killing those jobs with increased regulation and regulatory uncertainty. Who wants to make an investment if you don’t know what the rules are going to be from one minute to the next?

Most of us don’t create jobs; we work at jobs. So let’s put this in a context we employee-types may understand a bit better. If you were to take your paycheck to Las Vegas, how likely would you be to put your money on the blackjack table if you knew the dealer could change the rules of the game while you’re playing your hand? And what would be the odds you’d play if the dealer could change the rules just applicable to you or change the rules to favor the other players? No chance you’d bet your paycheck.

Well, the same thing is true for an employer. Should an employer put his or her money “on the table” to expand and grow the business if the government can change the rules of the game as soon as he or she makes the investment? Of course not. Should an employer make an investment to grow a business and create more jobs if the government can change the rules in a way that favors his or her competitor? Of course not.

So, if you ask me, if Representative Waters gets her wish, then maybe the TEA Party can come back by next November and bring back the heat with them. And then maybe they can get enough politicians of her ilk in enough hot water that she can spend her time at home sipping tea while looking through the want ads for a new job in the private sector.

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The End of Civil Debate

My guess is that liberal General Session Court Judge Casey Moreland, who is more than happy to grant “free speech” rights to college students disrupting alegislative session,won’t see the First Amendment value of letting you disrupt his courtroom.

A recent decision by a Davidson County General Session Court Judge is a great example of fuzzy-headed, liberal thinking. With more judges like this one, it’s no wonder that civil political discourse seems to be coming to an end. Maybe he should be given a taste of his own medicine.

Back during the legislative session, the Education Committee for the Tennessee State Senate was conducting hearings on collective bargaining rights relative to the teachers’ union in Tennessee. Lots of people on both sides of the issue showed up. The issue was controversial.

But during the public hearing, some young college-aged students started yelling and chanting and disrupting the meeting. When they would not quiet down after half an hour and be respectful of those in the room trying to listen to the debate and engage in that debate, they were asked to leave the hearing room. Some did. But several lay down on the floor and locked arms, refusing to leave. Eventually they had to be dragged out by Capitol Police. As would be expected they were charged with resisting arrest and disorderly conduct.

Well, General Session Court Judge Casey Moreland recently found them not guilty. After all, according to the Judge, these students were just asserting their First Amendment Rights to political free speech.