Gaines: Bureaucrats are making the rules—and you’re paying for it

By Cory Gaines | Commentary, Colorado Accountability Project

Rulemaking in Colorado.**

Rulemaking is the process by which our legislature delegates the task of regulating specific actions and behaviors.

In a rough sense it works like this. Say the legislature wants to make a law so that building owners don’t scrimp on elevator expenses to the detriment of public safety. The legislature, rather than directly telling landlords what to do, will task an executive agency with a general set of constraints, telling the agency to come up with rules and regulations that “protect the public safety” or other such phrases. The executive agency then sets the actual policy: what does safety look like for elevators, how is it checked?

If this strikes you as not being too far from having unelected bureaucrats writing law, you’re not alone. I see it this way and others have too over time–rulemaking is actually a pretty old legal process.

Now, technically the bureaucrats can’t act without the legislature telling them to, what they do is (more in a sec) subject to public input and legislative review, but as we’ll see oversight of rules is effectively meaningless in the tidal surge of them that our state produces on a yearly basis. The lofty rhetoric of our state’s administrative procedures law (see screenshot 1 attached) is more, shall we say, aspirational than reality. A look at recent rulemakings, delving into what the agencies actually write to justify their actions, is evidence enough. Check back at last Thursday’s newsletter on landfills for an example.

Concerns over unelected officials making law (while being unaccountable to the people who should be sovereign in our system) has been a problem at both the Federal level and the State level–as the Feds did with rulemaking, so followed states–and thus efforts to rein in the problem were also undertaken at the Federal and State level. The first link below provides an informal history on the law around rulemaking here in Colorado along with a brush up on our state’s Administrative Procedures Act, a copy of the Federal law with the same intent.

Despite attempts to check the writing of law by bureaucrats and the administrative bloat in this state, the number of regulations and regulating bodies has grown steadily over time.

If you are curious to follow the rules adopted in any given year, the best place to look is at the Secretary of State’s webpage for the Colorado Register. That site is linked second below. It offers monthly updates on proposed rules, adopted rules, emergency rules, etc. and is published online on the 10th of each month.

The third link below is for the 1/10//2025 html version of the register. Screenshots 2 – 4 show some of the proposed rulemakings from that time, adopted rules, and emergency rules respectively. Note that in each, you have links which you can follow to get all the information on all of the rules you could want.

I used the Colorado Register to make an approximate count of our state’s regulatory and rule burden vs. time. I checked the year-end notice (12/10/YEAR) of rules for the years from 2006 to 2024, counting the number of adopted rules plus emergency rules. I then asked a spreadsheet to make a graph of rules adopted vs. year. A copy of that scatterplot is attached. It shows new rules adopted by year.

You can clearly see that agencies were quite busy in the early 2000’s and then mostly quiescent until 2019 when they got busy again before quieting down.

Care should be taken here to note that (despite Colorado having a legislature solidly in Democrat control and mostly gubernatorial control since 2006–see the screenshot of a party control table from the Ballotpedia site linked fourth below), the legislature abdicating its lawmaking role is not a party issue. It’s a laziness and expedience issue. Again, rulemaking has been around a while and has grown under all kinds of administrations.

I want you to look again at screenshots 2 – 4 and the graph attached. These are snapshots from a point in time, they are not a cumulative total. Now reflect on this: despite the supposed safeguards in law, do you have any effective say in our state’s policy with this much activity happening OUTSIDE the legislative process?

Do you have any illusions that you have effective control over your government when this is how we decide on what’s okay and what isn’t?

READ THE FULL COMMENTARY AT THE COLORADO ACCOUNTABILITY PROJECT

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