Legislative effort to dial back rules seems to have intended effect

Anecdotally . . . the pushback on state regulations promulgated by agencies, boards, commissions, and officials engineered by Senate Majority Floor Leader Chris Garten (R) and Rep. Steve Bartels (R) in the past two years seems to be having its intended effect.

While it is extremely difficult to quantify (you can’t simply review the number of regulations, because some may be comprehensive – an entire package regulating an individual trade, profession, or industry – while some may simply be a sentence or two or a minor change to an existing rule) and some may be procedural vs. substantive . . . we’ve certainly noticed a significant drop in the number and extent of regulations over the past six months or so.

The Indiana Register now seems to be filled more with digital pages filled with justifications for – and responses to comments about – proposed regulations (and even the occasional rescinded rule) and some of the other new requirements triggered by the fiscal impact of proposed rules than the regulations themselves.

Some of this regulatory inactivity, however, may be due to where the state finds itself in the cycle.

We’re now one-third of the way through the eighth and final year of the Holcomb Administration, the 20th year of Republican control of the executive branch. Philosophical changes to state rules have likely been rendered long ago, and the final year of a second-term administration is generally not conducive to new activity as a governor has had a seven-year  opportunity to leave his personal imprimatur on the state bureaucracy, and state agency leaders are typically in the twilight of their respective tenure, not looking to rock the boat or engage in creative (or otherwise extensive) rulemaking.

Some regulatory problems or fixes or politically thorny issues may simply be deferred, left for the new administration or the next session of the General Assembly to fix, if they decide to become involved.

One recent example: Access to terminated pregnancy reports (TPRs).

After we were first to report that the Indiana Public Access Counselor in December had effectively deemed individual such reports to be off-limits to access in an informal advisory opinion (23-INF-15), lawmakers chose not to address the issue in legislation during the 2024 session.

Sen. Andy Zay (R) later requested and received an Attorney General Official Opinion (24-2) in early April on the issue. Attorney General Todd Rokita (R) determined that individual TPRs were subject to public release, touting his conclusion in a live-streamed Fort Wayne news conference with congressional hopeful Zay.

You no doubt noticed that the Indiana Department of Health – which had sought the initial PAC ruling “argu[ing] that the required quarterly reports should suffice in terms of satisfying any disclosure and transparency considerations” took no action to change its rules to either comport with or circumvent the AG Opinion . . . seemingly leaving it to the next gubernatorial administration or General Assembly to address. Query whether there would be a different reaction in the first or second year of a given gubernatorial administration (or first or second year of a second term).

So while it may be difficult to quantify, particularly so soon after the latest round of legislation changing the regulatory regime and the most recent session itself (there may not have been sufficient time for agencies to begin the process of promulgating rules implementing and complementing 2024 legislative changes), the early returns would seem to suggest that the Garten and Bartels hurdles appear to be having their intended effect: a reduction in the number and extent of rules.

We’ll leave it to others to judge whether this is having a positive, negative, or neutral impact on the ability of Hoosiers to conduct their activities in a more efficient manner balanced against protecting their individual health and safety.