Rules are Important
I thought you might like to see what it’s like to serve on a Committee in the State Assembly, and I’m going to use a recent hearing on administrative rules as the vehicle. Welcome to one of the most complicated and deeply consequential topics in state government.
And stay tuned at the end to learn about some really important rules.
Bills that are passed by the Legislature and enacted into statute by the Governor’s signature can include instructions for the executive branch to promulgate and implement “rules” to make the statutes functional.
During Democratic Governor Tony Evers’s two terms, the Republican majority in the Legislature has been exercising “legislative vetoes” over spending and rules. Two Wisconsin Supreme Court cases have sided with Governor Evers and against the Republicans. The second of those cases dealt directly with the Legislature’s process for reviewing administrative rules. Earlier this year, the Court determined that the Legislature was exercising an unconstitutional legislative veto when it paused or suspended rules that the executive branch had promulgated for review.
So, the Republicans are now trying to figure out how to maintain their legislative veto power.
I’m a member of the Assembly’s GOAT Committee, which deserves its own Substack. GOAT stands for Government Operations, Accountability, and Transparency. Last week, we heard four bills authored by Republicans that would restore the legislative veto and enable a systematic dismantling of basic protections and government services within the administrative code.
The Republicans have used the Joint Committee for Review of Administrative Rules as their main forum for wielding their legislative veto. The lead Republican author of one of the four bills (AB 274) that would require every administrative rule to expire and have to be renewed every seven years said the intent of the bills is to “Make JCRAR great again.” I replied in the hearing: “I understand you’re trying to make JCRAR great again, but I think you’re making it unconstitutional again.”
Watch that exchange here:
I also had an exchange with the authors of a different bill (AB 277) that would hand enormous power to the Legislature’s majority. Current law has a threshold for rules that says if a rule passes along $10 million or more of implementation or compliance costs to businesses, local governments, or individuals, the executive branch has to stop work on it, and it can only move forward if a bill is passed and enacted to authorize it. This bill would change that threshold to ANY amount of cost. Administrative rules enable a lot of important things like child support and railroads that enjoy bipartisan support. They also enable things that only one party cares about. The Republican authors of this bill were pretty befuddled at my scenario where I laid out how this bill would enable me to shut down the school choice program, which is beloved by Republicans
Watch that exchange here:
One of the bills hands a blank check to conservative law firms to sue the state by awarding attorney fees to a party to a lawsuit harmed by an administrative rule that is declared invalid by a court. One of those conservative law firms, the Wisconsin Institute for Law and Liberty, confirmed these bills will face constitutional challenges, and that these bills are not a silver bullet for ensuring the Legislature can exercise its oversight role. A nonpartisan attorney who works for the Legislature also stated on the record that these bills would likely face legal challenges.
Watch that exchange here:
The Republicans also approached rules/regulations throughout the hearing as “red tape,” which is an unfair generalization. So I asked one of the experts who testified about our administrative rules, and pointed to an administrative rule on patient health records first published in 1995 that requires those records to be kept for 5 years, that they be legible, and a number of other requirements. That regulation was a thing that helped Epic develop its products and grow into a business in my district that employs 14,000 people. The expert agreed that rules/regulations can be a driver of economic development and that regulations “can be net beneficial.”
Watch that exchange here:
All this being said, the Republicans are not necessarily wrong to want to ensure that the Legislature maintains a check on the executive branch, and I said so at the hearing. First, we have to write more directive legislation. And second, we have to exercise our oversight role constitutionally. There is the possibility that a Republican governor could abuse the rulemaking process.
Speaker Robin Vos has appointed a Speaker’s Task Force on Rulemaking that will also be digging into this topic. I’m not a member of that Task Force, but I’m interested to see what they come up with.
Postscript for fun!
To illustrate just how necessary the state’s administrative code is, here are some vital administrative rules:
DWD 272.03 - The minimum wage
DCF 251.06(2)(h) - Smoking is prohibited on the premises of a child care center or in vehicles used to transport children
DHS 124.07(3)(b) - Hospitals shall have infection prevention policies for maternity units
PI 21.04 - Standards for driver education programs
SFP 2 - The operation of the State Fair
UWS 8.03 - Standards of conduct for staff of the Universities of Wisconsin
We should not tinker with things that are working well.