Legislative Updates - 13 February 2023

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Dear Friends:

This is GrassRoots’ 5th weekly legislative update of this year’s General Session of the Utah State Legislature. At this time (5 weeks into the session), there are about 820 numbered bills for this session on the Utah Legislature website. Here are some bills and issues that we consider to be noteworthy.

Bills catching our attention this week

HB127, “Reauthorization of Administrative Rules”, sponsored by Representative Birkeland and Senator Bramble, would reauthorize all rules of Utah state agencies except Subsection (2)(c) of R277-552-7, Requests for a New Satellite School for an Approved Charter School. The rule proposed not to be reauthorized may currently be found and read at https://adminrules.utah.gov/public/rule/R277-552/Current%20Rules?searchText=undefined.

HB127 still awaits action by the House Rules Committee, but, given historical precedent, there is reason to believe action on this bill will soon be swift, as it is a decades-long tradition to reauthorize administrative rules every year.

As we read Subsection (2)(c) of R277-552-7, we are in agreement with not reauthorizing this rule.

But should the rest of the thousands of administrative rules be reauthorized by the Legislature? We believe not, and some of our reasoning is as follows:

Separation of Powers--specifically Separation of Executive and Legislative Powers. Utah State Constitution, Article V, Section 1 states: "The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted." Any time the Legislature empowers an executive department entity to make rules that are legislative in their nature, this strikes us as a violation of the just-quoted section. We think it is unfortunate when the Legislature chooses to do this. We think it is also unfortunate when the Legislature "re-blesses" this practice in its annual "reauthorization" thereof.

Mockery of Representative Government. We believe it is a mockery of the principle of Representative Government when representatives vote to regulate us (their constituents) in ways that they have neither read nor understood. And we would guess that most legislators have read and reasonably understood far less than 10% of the thousands of administrative rules.

Lessons of the Covid Response. There are other examples that could be mentioned, but the recent Covid response, with oppressive business shutdowns, mask mandates, vax mandates, and stoppages of freedom of assembly (to name a few) is a classic example of the tyranny that can and does result when legislative powers are exercised by executive entities. (Few, if any, of these oppressive mandates and shutdowns were ordered by the elected representatives of the people; rather they were mostly ordered by Governors, a President or 2, and executive department bureaucrats that have had legislative powers "delegated" to them (or maybe they were totally usurped in some cases).)

If administrative rules are not reauthorized, we will still have in place in Utah Code the laws that have been passed by the elected representatives of the people over the years. But we will be relieved of the thousands of regulations wrongly written by executive branch entities.

We would hasten to add that our complaint with the thousands of administrative rules is with any rules that are legislative in their nature, because legislation should only be passed by the Legislature after due deliberation. To the extent that any of the rules are executive in their nature, and constitute a natural function of the executive branch, there is no need for the Legislature to reauthorize them, as our state constitution specifies that “The executive power of the state shall be vested in the Governor who shall see that the laws are faithfully executed” (Article VII, Section 5).

GrassRoots favors a “no” vote on HB127.

HB281Substitute, “Social Credit Score Amendments”, sponsored by Representative Acton and Senator McKell, would, according to the bill’s Long Title:

• require the Division of Consumer Protection to establish a system that allows a consumer to report a financial institution's or company's use of a social credit score;
• prohibit a governmental entity from using, enforcing, providing data for use in, or otherwise participating in the creation or use of a system that, based on a social credit score, discriminates against, advocates for, or causes adverse or preferential treatment of a person;
• provide rulemaking authority; and
• create reporting requirements.

HB281Substitute passed the House 57-13 on Feb 16th, and is scheduled as Item 13 on the agenda of the upcoming meeting of the Senate Business and Labor Committee on Tuesday, February 21st, 7am, at 220 Senate Building. (As Item 13, it is conceivable that time will run out before the bill is considered.)

Certain steps proposed by this bill look good to us. Social credit scoring as a tool of discrimination is a matter of some concern to us. Not only is social credit scoring a well-known tool of the Chinese Communist Party, but it also seems to be a growing practice in the United States as various institutions have taken steps to discriminate against individuals for their vaccination status, or their views on “climate change” or the Second Amendment. We enthusiastically agree with reasonable efforts to avoid governments’ use of and support of unwarranted discrimination. Also it appears to us that there is Probable Cause for government to take note of consumer reports of financial institutions’ use of social credit scoring.

We disagree with this bill’s provision for additional rulemaking powers for the Division of Consumer Protection. To the extent that any rules that are made by said division are legislative in their nature, this would seem contrary to the Separation of Legislative and Executive Powers prescribed in Utah State Constitution, Article V, Section 1. To the extent that any rules are executive in their nature, there is no need for the Legislature to authorize them as executive power is vested in the Governor (see Article VII, Section 5 of our state constitution).

We see some good and some bad in this bill. GrassRoots takes no position on HB281Substitute at this time.

Updated status on social media regulation bills covered in past GrassRoots updates:

In past updates, we have been open to the possibility that there might be Probable Cause for some government regulation of social media companies. But we also mentioned several problems to look out for in HB311 and SB152, including:

• violations of Separation of Legislative, Executive, and Judicial Powers;
• intrusions on privacy;
• violations of Freedom of Speech and Freedom of Association;
• lack of due process of law, including Jury Trial, before punitive action is imposed; and
• disposition of fines and civil penalties in ways that might cause a conflict of interest for law enforcement.

In some cases, these problems were obvious in these bills, while, in other cases, we might only be highlighting a concern as a potential problem.

Now, here is some updated status on HB311 and SB152.

HB311Sub2, “Social Media Usage Amendments”, sponsored by Representative Teuscher and Senator Cullimore, would enact the Utah Social Media Regulation Act, regulating interactive computer services and the use and design of social media platforms. Additional coverage of HB311Substitute (prior version of this bill) and HB311Sub2 may be found in our update of February 6th (which also discusses constitutional principles that should be remembered in efforts to regulate individuals and other private sector entities), and in our update of February 13th.

HB311Sub2 passed the Senate 2nd reading 22-5 on February 16th, and is on Senate 3rd reading calendar table (due to its fiscal impact).

We are not opposed to all provisions of this bill. However, as mentioned in last week’s update, we are still concerned about HB311Sub2: a) apparently empowering the Division of Consumer Protection to audit the records of a social media company without a court order based on Probable Cause (see lines 253-255 of the bill); and b) creating a “rebuttable presumption” of liability in certain circumstances (see lines 244-247 of the bill). GrassRoots still favors a “no” vote on HB311Sub2.

SB152 was replaced by SB152Substitute, “Social Media Regulation Amendments”, sponsored by Senator McKell and Representative Teuscher, which would still enact provisions related to the regulation of social media companies and social media platforms, and is substantially the same as (and having the same problems as) the original SB152. Additional coverage and description of SB152 may be found in our updates of February 6th and February 13th.

SB152 initially failed to pass the Senate 2nd reading, but after a motion to reconsider, SB152Substitute replaced SB152 and passed the Senate 2nd reading 28-1 on February 13th and the Senate 3rd reading 23-4 on February 15th. SB152Substitute is now scheduled as Item 4 on the agenda of the next meeting of the House Judiciary Committee, Tuesday, February 21st, 8am, at 110 Senate Building.

We are not opposed to all provisions of this bill. We are not opposed to regulation of social media companies if and where there is Probable Cause to do so.

However, SB152Substitute still appears to transform social media companies into collectors of personal information without Probable Cause. It violates Separation of Executive and Judicial Powers by empowering the Division of Consumer Protection (division) to impose administrative fines. It appears to violate Separation of Legislative and Executive Powers by providing for rule-making powers by the division.

We are also concerned about proceeds from fines and civil penalties being deposited into the Consumer Protection Education and Training Fund, rather than into the General Fund (with maximum control by the Legislature); thus potentially creating conflicts of interest and distortion of law enforcement priorities in the division.

GrassRoots favors a “no” vote on SB152Substitute.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Vice-Chairman, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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