First-in-the-nation law gives state lawmakers transparency into federal guidance

Over the last year, the Center for Practical Federalism has worked to educate state lawmakers and equip them with the tools they need to push back against overreach from the federal government. Their efforts paid off in a big way this spring after Tennessee legislators passed first-of-its-kind legislation requiring the Tennessee Department of Education to disclose all federal guidance it receives to state lawmakers.

Federal guidance is communication from the federal government with the goal of providing clarity on existing law. The guidance, however, is widely unregulated and handed down from unelected bureaucrats in government agencies, like the Department of Education. While courts have been clear that this guidance is not binding and does not carry the same legal weight as law, more and more often agencies go beyond clarification and use guidance to create new rules that have no statutory authorization. This attempted rulemaking from unelected bureaucrats is illegal, but because many citizens and legislators are unaware of this, some agencies take advantage of the confusion to pass off guidance as law.  

Center for Practical Federalism Fellow Steve Johnson and former Senior Vice President of the James Madison Institute Sal Nuzzo were asked by Tennessee lawmakers to testify before a joint legislative committee to address concerns they may lose federal education funding if they didn’t comply with recent guidance that had been issued from the Department of Education. Steve and Sal informed the legislators of the difference between law and guidance, the latter of which is not binding. They reassured lawmakers that they would not lose funding should they choose not to follow the glorified advice.

Their testimony opened the working group’s eyes to the lack of transparency in their state, and they asked Steve and Sal for recommendations to increase oversight over their state.

The pair came equipped with several policy proposals to increase transparency in the Volunteer State. One of these recommendations was requiring the Tennessee Department of Education to disclose all guidance it receives from the federal government, giving the legislature additional transparency in this area. With this information, the working group authored a hard-hitting report containing many of CPF’s recommendations and moved to pass legislation requiring an increase in transparency. The bill passed with flying colors, receiving a unanimous vote from both sides of the aisle.

This legislation sets an important example for other states looking to increase transparency and oversight in their own states. Not only does it shine a light on suspect and potentially harmful guidance that threatens state authority, but it also challenges federal officials to make sure that the guidance they issue is not illegal rulemaking.

“Elected officials don’t just have a duty to pass legislation, they also have a responsibility to protect the rights of their citizens,” said Steve. “They can’t do this effectively, however, if they are left in the dark on guidance being handed down from the federal government in their state. Transparency is a bipartisan issue, and state lawmakers should look to Tennessee as a role model for how they can expand transparency in their home states.”