Tennessee legislators score a groundbreaking win for transparency

Tennessee lawmakers recently passed first-in-the-nation legislation that could change how state agencies interact with the federal government. Despite this groundbreaking legislation passing unanimously — certainly a feat in today’s hyper-politicized world — it has received little to no attention. 

The Volunteer State’s new law is quite simple: The Tennessee Department of Education must disclose all federal guidance it receives to state lawmakers. Most people read that and don’t find anything objectionable — it sounds like an improvement in transparency in government. But they also don’t see anything groundbreaking or significant. 

This stems from the fact that most of us don’t exactly know what federal guidance is, or at the very least why it is so important. In my six years as a state representative in Michigan, I don’t remember anyone talking about federal guidance. In fact, I’m willing to wager that the vast majority of elected officials don’t know the impact that guidance has on state government. I certainly didn’t. 

Many understand that federal regulations and rules, even though not voted on by Congress, have the force of law. These usually go through a formal process governed by the Administrative Procedures Act, which requires, among other things, a public comment period.

Federal guidance, however, has no formal process. It also does not carry the force of law. 

Guidance usually comes in the form of a memo or "Dear Colleague" letter from a federal agency. For the most part, it is benign and uncontroversial. Often, these memos can be helpful — for example, providing clarity to a business owner on how to comply with a confusing regulation. However, more and more often, the federal government is using guidance as a subtle way to push a political agenda without going through the more difficult and time-consuming process of actually changing the rules. 

This creates the most problems for state agencies, since they rely heavily on federal guidance. Many federal programs, such as Medicaid, are administered through the states. Naturally, the states need to ensure that they are in compliance with federal requirements, or else they risk losing federal funding. 

As you can imagine, when they receive a letter from the federal government providing instructions on what to do, they are apt to follow it. Few stop and ask themselves whether that’s actually the law — it’s easier just to do what you’re told. Federal bureaucrats, knowing this, are therefore less likely to bother with the hassle of changing regulations, since they can just send a letter requesting compliance with their whims. 

What’s even more problematic is that the public rarely sees this guidance. Currently, no federal law requires public disclosure of these communications. It’s a perfect storm of unaccountable bureaucrats setting policy in the shadows and state agencies complying without raising a fuss. 

That’s why Tennessee’s new law, while so simple, is also so important. It brings to light what is currently hidden. If the federal guidance being given to Tennessee’s Department of Education is entirely lawful, then there is certainly no harm in making it public. If the guidance is stretching the bounds of the feds' legal authority, then it is imperative that lawmakers be made aware and push back against federal overreach. 

Elected officials have a duty to protect the rights of their constituents. It’s not just their job to pass legislation. They need to serve as a constitutional check on the executive branch in their state as well as against the federal government. Lawmakers are unable to do this if they are kept in the dark on the federal guidance that’s being pushed in their state. This simple act of transparency allows elected officials to perform their most basic and fundamental duties. 

Tennessee is leading the way, and other states should also look to adopt the Tennessee model. However, the Volunteer State and others should expand this beyond just the Department of Education. It’s in the interest of the public, for the sake of the rule of law, to know what the federal government is telling state agencies. 

At a time when it seems that there is little that the political left and right can agree on, it’s encouraging to see lawmakers in Tennessee come together in a unanimous vote for more transparency. Let’s hope other states take notice.

Steve Johnson is the Center for Practical Federalism Fellow at State Policy Network.