Hearings on Separation of Powers and Legislative Oversight Presentations: Professor Jack M. Beermann, Boston University School of Law Gary Ciminero, Rhode Island House Policy Office Before the House Committee on Separation of Powers March 24, 2004

2 Today’s agenda Separation of Powers and Legislative Oversight Chair Elaine Coderre—Introduction of Today’s Expert Testimony: Jack M. Beermann, Professor of Law Presentation of Professor Beermann: “SEPARATION OF POWERS AND LEGISLATIVE OVERSIGHT” Reply to Requests for Information Posed at the Last Committee Hearings on March 10 th : Gary Ciminero

3 Separation of Powers and Legislative Oversight SEPARATION OF POWERS AND LEGISLATIVE OVERSIGHT SLIDES ACCOMPANYING TESTIMONY OF— Jack M. Beermann Professor of Law Boston University School of Law [SEE WRITEUP OF TESTIMONY ELSEWHERE ON THIS WEBSITE]

4 Separation of Powers and Legislative Oversight James Madison, Federalist 48 “The political [maxim separation of powers] does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other.... Unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be maintained.”

5 Separation of Powers and Legislative Oversight Legislative oversight of the executive branch is a central and vital element in separation of powers. Oversight preserves the value of separation of powers, by disallowing excessive accumulation of power in the hands of the executive and by ensuring that all legislation is carried out according to the intent of the legislature and will of the people.

6 Separation of Powers and Legislative Oversight Four prongs to oversight: Budget Policymaking Rules Implementation—which includes performance review.

7 Separation of Powers and Legislative Oversight Related staff resources: Experience at the federal level and in other states shows that in order to conduct effective oversight the legislative branch needs adequate staff and expertise including professional staff capable of obtaining and processing information to make it useful to the legislature.

8 Separation of Powers and Legislative Oversight Methods of Oversight—Formal and Informal

9 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Appointments: Under the proposed Rhode Island referendum amendments, the appointment power for officials exercising executive power is presumptively in the Governor with advice and consent of the Senate. However, if an official is an inferior officer, then the GA can designate alternatives. The Legislature may appoint its own officials to aid in the process of legislation.

10 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Oversight of Rulemaking: Many states have Joint Committees that engage in year round review of administrative rules

11 Separation of Powers and Legislative Oversight Methods of Oversight—Formal The Legislative Veto

12 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Report and Wait: Legislatively reject rules

13 Separation of Powers and Legislative Oversight Methods of Oversight—Formal The Power of the Purse and Appropriations Riders

14 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Additional Reporting Requirements

15 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Precise Statutory Language

16 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Strict Judicial Review

17 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Specification of Procedures

18 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Sunset Provisions

19 Separation of Powers and Legislative Oversight Methods of Oversight—Formal Independent Agencies

20 Separation of Powers and Legislative Oversight Methods of Oversight—Informal Research and Investigations

21 Separation of Powers and Legislative Oversight Methods of Oversight—Informal Legislative Hearings

22 Separation of Powers and Legislative Oversight Methods of Oversight—Informal Tacit Agreement on the Use of Funds

23 Separation of Powers and Legislative Oversight Methods of Oversight—Informal Informal Influence over Appointments

24 Separation of Powers and Legislative Oversight Methods of Oversight—Informal Participation in Agency Processes

25 Separation of Powers and Legislative Oversight SUMMARY & CONCLUSION

26 Legislative Oversight Reply to Requests for Additional Information— Posed at the 3/10/04 Hearing Gary Ciminero Rhode Island House Policy Office

27 Legislative Oversight — Reply to Requests for Additional Information — 3/10/04 Hearing REPRESENTATIVE PAUL W. CROWLEY’S REQUEST for INFORMATION on PROFESSIONAL STAFF COMPARISONS ACROSS STATES Recall that at the prior hearing of 3/10, rankings from NCSL were based on total full-time staff per legislator by state—see next slide Rhode Island Ranked 23 rd at 2.63 total legislative staffers per legislator

28 Legislative Oversight Capacity — 2003 Full- Time Staff per Legislator

29 Legislative Oversight — Reply to Requests for Additional Information — 3/10/04 Hearing REPRESENTATIVE PAUL W. CROWLEY’S REQUEST for INFORMATION on PROFESSIONAL STAFF COMPARISONS ACROSS STATES, continued: NCSL also has data on Professional Legislative Staff by State—see next slide On this fairer basis, Rhode Island ranks even better—with just 114 professional staffers it has –Just 1.01 Professional Staffer per Legislator –Ranking us 30 th among the states in relative staffing

30 Legislative Oversight Capacity — 2003 Full- Time Professional Staff per Legislator

31 Legislative Oversight — Reply to Requests for Additional Information — 3/10/04 Hearing REPRESENTATIVE PAUL W. CROWLEY’S REQUEST for INFORMATION on PROFESSIONAL STAFF COMPARISONS--concluded Based on a better measure, Full-time professional staff per bill enacted—with 518 bills enacted in RI— see next slide: –We have has just 0.22 professional staffers per bill –Ranking us 39 th, one of the lowest relative staffing levels compared with other states.

32 Legislative Oversight Capacity — 2003 Full- Time Professional Staff per Bill Passed

33 Legislative Oversight — Reply to Requests for Additional Information — 3/10/04 Hearing REPRESENTATIVE NICHOLAS GORHAM’S REQUEST for INFORMATION on PROFESSIONAL STAFF COMPARISONS with State Populations BASED ON FULL-TIME PROFESSIONAL STAFF PER CAPITA, RI RANKS 7 TH AMONG THE STATES—see next slide. HOWEVER, COMPARISONS WITH POPULATION SIZE DISTORT ANY CONCLUSION ABOUT STAFFING LEVELS –SINCE POPULATION IS A POOR MEASURE OF THE AMOUNT OF LEGISLATIVE ANALYSIS AND OVERSIGHT REQUIRED OF THE PROFESSIONAL STAFF. –BETTER MEASURES ARE THOUSE ALREADY DISCUSSED IN THE EARLIER SLIDES.

34 Legislative Oversight Capacity — 2003 Full- Time Professional Staff per Capita