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In a Nutshell
- Many elements of effective and ongoing legislative oversight are already in place, including a constitutionally empowered Auditor General, the Legislative Council, oversight elements in the appropriations process, actions by standing policy committees, and reviews by both legislative oversight committees.
- Should Michigan want to move to a more active and comprehensive system of legislative review – one conducted by lawmakers themselves – lawmakers should consider making sunset legislation a more comprehensive aspect, rather than the current political tactic system.
- To take full advantage of the existing direct and implied oversight authority provided to the Michigan Legislature, lawmakers should, first, establish a framework for such authority in a formal setting; at a minimum, as part of legislative rules or through statute.
Michigan’s legislative oversight system is considered relatively weak compared to many other states. Michigan has no significant statutory requirements for a robust, direct legislative oversight system of state government operations.
Much of the legislative oversight conducted of state government is done by the Office of the Auditor General, but even that admirable work is inconsistently reviewed or used by lawmakers.
Yet legislative oversight is and should be a critical function of state government, helping assure that executive operations are efficient and effective. It also provides lawmakers with the ability to look more intensively into critical issues facing state residents, businesses, and government, and to update or repeal laws as necessary.
Oversight is critical to assure the public that government is actively taking steps to effectively implement programs and policies. Through review, legislators, as well as the executive branch, can also get a greater understanding of new and evolving issues.
Legislative Oversight History
The concept of legislative oversight goes back centuries and is premised on the need of lawmakers to have adequate information to properly legislate. It is, of course, a method of asserting authority over the co-equal executive branch, or at least, maintaining an equal position with the executive.
While oversight has been a permitted function of the legislative branch throughout U.S. history, it has taken a more prominent role with the increasing size and scope of government beginning in the early 20th century. For some, oversight is seen as a way of better rationalizing and if possible, reducing the size of government. For others, it’s purpose is specifically to act as a check on the executive. Still others see it as the primary way to ensure government is run both efficiently and responsively. All the reasons are legitimate, but for oversight to be particularly effective it needs a structure and commitment.
Oversight is an implied and inherent authority, but not necessarily spelled out in either the United States or Michigan Constitutions. Some aspects of how the legislature may use oversight could be spelled out constitutionally or statutorily.
Throughout much of Michigan’s history, the oversight role was largely tackled by the regular legislative committee structure. With the adoption of the 1963 Michigan Constitution, the legislature began slowly to reduce and broaden the scope of its committees. However, specific oversight committees were not established until the 1999-2000 legislative session.
Michigan’s Overall Oversight System
Despite having various opportunities and structures already in place that could result in a stronger legislative oversight system, Michigan’s legislative system is considered “generally lax” by researchers that have studied state systems.
The evidence bears out that conclusion. Michigan lawmakers are not doing nearly as much as they can to operate a good legislative oversight system that looks at the overall effectiveness of government structures.
Michigan’s legislative infrastructure provides many of the key ingredients for a more robust and effective oversight system. For example, the legislature meets full-time, meaning it does not face the same time pressures that part-time legislatures in other states face to complete their work. Michigan legislators are paid well relative to their national colleagues, meaning they can dedicate their full attention to legislative business as opposed to having to maintain another occupation.
The Michigan Constitution’s explicit and implied authorities to the Legislature are broad. It provides for two ancillary authorities the legislature can employ to help conduct oversight: the Office of the Auditor General (OAG) and the Legislative Council.
The 1963 Michigan Constitution provided for the creation and powers of the Auditor General, a provision not commonly found in other state constitutions.
Much of the ongoing oversight in Michigan is conducted, in fact, by the Office of the Auditor General (OAG). Yet there are no requirements that the legislature respond to the results of the audits. And there is no requirement, nor expectation, that the legislature review and respond to how departments react to the audits.
The Constitution provides the legislature authority to direct the OAG to conduct investigations based on its auditing authority.
An explosive audit can result in direct legislative action to compel changes. But the OAG has considerable influence on compelling agency changes to improve performance. It has, therefore, the practical effect of legislative oversight and power albeit without the statutory and appropriations authority.
And the OAG can negotiate with the agency prospective changes to correct performance deficiencies. An agency negotiating those changes and following through with the agreed changes can stave off direct legislative action that might result in statutory changes and/or funding cuts dealing with the program(s) or service(s) being audited.
The Legislative Council is created by Article IV, Section 15 of the Michigan Constitution to be a bi-partisan body. As statutorily implemented, it is made up of six members from each chamber with not less than two from each chamber coming from the minority party.
While the council’s primary function is drafting legislation and resolutions at the request of House and Senate members, and providing legal history and background to lawmakers, the Constitution also specifically states the council “shall periodically examine and recommend to the Legislature revisions of the various laws of the state.”
Inherent in that stricture is oversight on how laws are working, how they affect the public, how they are implemented and followed, and how the courts have interpreted those laws. This specific requirement was partly implemented when the state created the Law Revision Commission (which itself is an oversight system dealing with the specific task of reviewing and proposing changes to Michigan’s laws).
An ongoing problem that faces the OAG, the Legislative Council, and legislative oversight in general in Michigan is how to get and maintain legislators’ attention.
Legislators are swamped with information and materials to review. Staff are often tasked with reviewing the reports themselves, though they also feel lawmakers should spend more time on the issues.
A structured oversight system in Michigan, where it becomes the specific task of at least some legislators and staff to study oversight and revision questions, could help attack that problem.
Other Oversight Tools
The Michigan legislature also provides oversight through the appropriations process, relying on the fiscal agencies to provide vital services and analyses as the legislature develops the state budget. Much of the oversight activity through the appropriations process, however, is reflected in “boilerplate” language sections accompanying appropriation line items. Generally, boilerplate language both establishes policies for departments and requires reports on policies and agencies.
Standing policy committees also perform oversight functions, through both investigations and review of legislation. Much of the oversight function consists of committee hearings of public issues, designed to both inform committee members as well as the general public, instruct members and the public, and provide a place to question authorities.
There are also the oversight committees. But as already indicated, the state’s legislative history with oversight committees is relatively brief. And their activity is not prescribed, but reliant on the committee chair and House and Senate leadership.
Sunset legislation is a policy action that creates a structure for legislators to assert oversight on executive branch agencies as well as the overall effectiveness of enacted legislation, premised on the fact an agency’s existence or statute could end automatically without that review.
The principle of sunset legislation states a specific time an agency or program will be eliminated, if not renewed by an affirmative action on the part of legislators and the executive. The concept and practice have been in place for hundreds of years, though not generally referred to as sunset.
Sunset Legislation Currently Among the States
Most states have enacted an overall sunset system, many enacted during the period when the system was most touted. There is no one consistent model for the sunset provisions, though, as the states vary in how extensive the oversight process outlined shall be in their government structures.
At its height of popularity, sunset legislation was seen by supporters not only as a way of helping ensure efficient and cost-effective government, but as a way of establishing and ensuring the legislative and executive branches were more co-equal. It is no coincidence that much of the push for sunset legislation occurred following the Watergate scandal, the resignation of former President Richard Nixon and worries about growing executive authority both at the federal and state level.
As of 2018, according to the Council for State Governments, 25 states had well defined sunset legislation. These legislative models specifically define an entity that will conduct preliminary evaluations of state agencies and programs. In most of those states, there is also either a specific or general life expectancy to each agency under review. In several of the other states the legislature determines the life expectancy of the agency.
Michigan is among 10 states (the others being Idaho, Minnesota, Montana, Nebraska, Nevada, New Jersey, New York, Virginia and Wisconsin) that have not enacted a specific sunset law but use sunset provisions in various sections of law for specific programs.
Sunset legislation has also been repealed in some states that had overall laws. Oregon repealed its law early on, in 1993. Overall legislative oversight is discretionary in that state.
And South Carolina, which is considered to have one the better legislative oversight systems, repealed its general sunset law in 1998.
In terms of sunset’s success in controlling or reducing government’s costs, particularly state government costs, there has not been much specific research on the subject. One exception was a 2009 dissertation by Jonathan Waller of Auburn University who concluded there was little statistically different results in per capita expenditures between sunset states and non-sunset states. His research, however, showed that sunset laws do cut expenditures, but those reductions come more from the oversight practice rather than closing agencies.
Recommendations to Strengthen Legislative Oversight
Both Michigan House and Senate current leadership have expressed a renewed commitment to legislative oversight in recent years. These efforts are important to the checks and balances among the branches of government and to the pursuit of an economical, accountable state government.
- Many elements of oversight are already in place – a constitutionally empowered Auditor General, the Legislative Council, oversight elements in the appropriations process, actions by standing policy committees, and oversight committees.
- Should Michigan want to move to a more active and comprehensive system of legislative review – one conducted by lawmakers themselves – making sunset legislation a more comprehensive aspect rather than the current political tactic system will be a judgment for lawmakers.
- One thing also appears clear: if lawmakers wish to have greater oversight authority, they need to set the framework for such authority in a formal setting, at a minimum as part of legislative rules, ideally the joint legislative rules, or through statute.
- Based on the experiences of other states, the legislature should consider a number of actions to enhance oversight. These concepts can be adopted as part of any legislative oversight plan, with or without a general sunset concept:
- The system should have a clear, institutionalized structure. Whether by statute, joint rules or separate rules of each house, a legislative oversight system must have an established, written, ongoing, institutionalized purpose and structure that outlasts the strictures of term limits. The details of how and what and why a committee or commission acts and decides must have an established, agreed-upon and written basis behind it.
- To combat some of the ill effects of term limits, if a specific oversight committee – either a bicameral panel or one each in the House and Senate — is created, its members should serve on the committee for their entire terms of office. If House members of the committee are elected to the Senate, they should be appointed to the Senate committee once there is a vacancy. Doing so will reduce the chance of institutional amnesia.
- Also to combat the ill effects of term limits, the legislature should adopt a practice to add to bills statements of the problems being addressed or legislative intent. Depending on the sunset dates adopted, the legislators creating agencies or enacting laws today are not likely to be part of the legislative body reviewing their effectiveness. Statements of legislative intent will give future legislators a basis to better perform legislative oversight.
- If separate oversight committees are created in the House and Senate, they should both have the same overall rules and structures. They don’t need to review the same agencies or programs at the same time, but they should each review them following the same process.
- Staff will be needed. Whether the staff is specific to that committee, made a part of the OAG or the fiscal agencies, an oversight committee needs to have staff dedicated to its functions. The size of legislative staff was reduced to address the budget balancing difficulties common in the first decade of this century. It is likely that additional staff will be needed to carry out oversight activities and funding for that staff should be insulated to protect against the whims of budget balancing exercises.
- True bipartisanship must be established. Doing so helps create both credibility as well as overall buy-in of results from both parties. If equal numbers of Democrats and Republicans is unfeasible, then the committee should create a chair and one vice-chair, both from the opposite parties. Oversight hearings held to promote partisan purposes instead of policy improvements weaken perceptions of oversight as a legitimate legislative activity. Similarly, a non-partisan, objective decision-making process should be developed to guide the use of sunset provisions.
- Transparency is vital, and every step to ensure it in transparency’s fullest form needs to be established. Oversight is a tool to ensure accountability to the people. Actions that occur behind closed doors are contrary to this objective.
- The public should be invited to participate, both by appearing and testifying in hearings, but also by proposing agencies or programs that should be reviewed.
- If sunset legislation is adopted, the legislature should consider fixing deadlines to eliminate a program or agency if it fails to meet requirements ordered of it in a review. However, the legislation should steer clear of eliminating whole departments or attempting to limit the governor’s ability to reorganize state government. Such legislation should also
- If instead of legislative committees conducting or overseeing the oversight function, lawmakers want the oversight process handled by the Auditor General, the Legislative Council, or the fiscal agencies, then they should show the same level of commitment to their efforts. They should commit that reports and reviews generated by any of those agencies will be subject to public review and hearings. The committees should be empowered to direct the Auditor General or Legislative Council or fiscal agencies to conduct certain reviews, get more information if needed, and to take the first steps in directing corrective action if needed based on those findings. And this process too must be structured and bipartisan.
- Legislative commitment to act on findings should be assured. This report documented information gathered in pursuit of oversight and accountability that seemingly gains little attention from legislators. Auditor General reports without policy actions and reports filed in compliance with appropriations boilerplate provisions can further the goals of legislative oversight, but not if they are filed only to sit on shelves.
- To meet the constitutional issues former Attorney General Kelley raised, and to assist in an oversight process, however the legislature decides to undertake that process, lawmakers should also include specific authority to end a program or agency in a bill’s title, and then include an opening section on legislation creating new programs, agencies or policies, explaining why the action is being enacted.
Michigan citizens need the assurance state government is operating as effectively as it can, and a robust system of legislative oversight would be critical to providing that confidence.
But the public should also have the assurance any oversight is as free from overt partisanship as possible. The public also has to have confidence Michigan’s legislature handles oversight in a professional manner, not at the whim of a committee chair or caucus leader.
Michigan’s constitution and laws, as well as the structure of its legislature, provide the basics for a good oversight system. Lawmakers can build off the impressive work done by the Legislative Auditor General’s office, just for one example, to create a system of authoritative oversight.
Michigan’s lawmakers have to be the ones to determine they do want to seem to be lax in dealing with what could prove to be an important function and benefit to the state.