Establishment of Institutions

[Jonathan Buhacoff]

Proposal:

The Legislative Branch shall establish an institution by enacting a law with a two-thirds majority with the name of the institution, its intended purpose, an enumeration of its powers and responsibilities, and its minimum annual budget formula.

The legislature shall elect the director of a newly formed institution no earlier than 30 days prior to the the formation date of the institution and no later than 90 days after the formation date of the institution. If the election occurs prior to the formation date of the institution, the director shall receive a stipend paid by the legislature’s general fund in an amount not to exceed the director’s first year salary for a period of the same length and reimbursed by the institution after its formation.

An institution’s annual budget shall be determined as the result of applying its minimum annual budget formula plus any additional amount authorized by the legislature for that year. The legislature may enact a law to authorize an additional amount for an institutions budget for one or more years.

An institution shall create, update, and revoke regulations within its powers, authority, and responsibility.

The legislature may enact changes to the institution’s powers, authorities, and responsibilities or override its regulations with a two thirds majority vote.

The legislature may impeach a director of an institution with the same impeachment process used for impeaching the chief of the executive branch.

Intent:

The establishment of institutions by law enacted with two thirds majority and the requirement of a two thirds majority to amend an institution’s charter is intended to ensure that the institution’s important work continues into the future, protected from a reversal by an executive order or an abolishment by a legislature with less support than it took to establish the institution.

The intent of the minimum budget formula is to prevent a dysfunctional future legislature from accidentally de-funding an institution by failing to pass a budget. The minimum budget formula enables the institution to operate at a minimum funding level. The legislature may approve additional amounts each year through its normal budget process.

The legislature can still respond to extreme budget emergencies by reducing budgets all across the government, including the reference points used in the minimum budget formula, but not to a specific institution individually.

Institutions employ subject-matter experts and consult with other government offices and the public prior to proposing to create, update, or revoke regulations. To protect the public from an out-of-touch institution, all such changes to regulation require confirmation by the legislature. To protect the public from a legislature that refuses the advice of experts and attempts to draft its own regulations, the legislature is prohibited from creating, editing, or revoking regulations that would fall within the scope of an empowered institution and instead is limited to confirmation of regulation proposals by that institution. If there is a stand-off, the effect would merely be to slow things down until a consensus is reached wherein the institution proposes regulations that the legislature would confirm.

Discussion:

The establishment of institutions will help to protect them from frivolous attacks on their legitimacy.

For example, in the United States the National Environmental Policy Act of 1969 required all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment. The following year, President Richard Nixon signed an executive order forming the Environment Protection Agency (EPA) and the EPA was later ratified by committee hearings in the House and Senate. However, executive orders can be rescinded by future administrations and committee hearings are not law. Those hearings should have been immediately followed by enacting a law establishing the EPA and enumerating its powers and limitations. The failure of the legislature to do that has left the EPA vulnerable to attacks on its legitimacy by people who would prefer less regulation so they can make more profits at the expense of the current and future public who will be left to struggle with the pollution and its effects.

When establishing an institution, the legislature would typically empower it to create, update, and revoke regulations within its authority. Such regulations do not require confirmation by the legislature because they are within the authority of the institution. However, if the director of the institution finds that a law or regulation is needed which is outside the powers of the institution, or if a court has stuck down a regulation of the institution as being outside of its authority, the director may appear before the legislature to advocate for the change and ask for the legislature to enact an appropriate law.

The legislature shall enact a law to fund the institution each year with a minimum budget formula. To avoid using a specific number which would have to be continuously adjusted to stay relevant, the minimum funding of an institution should be set as a percentage of some other item, for example the budget for the operations of the legislative branch or executive branch. The percentage could be greater than 100% if an institution requires a larger budget than its reference point to be even minimally effective.

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