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12/24/2010 7:54:00 AM
Walker takes aim at agencies' rule-writing authority
Proposal would require gubernatorial approval of rules

Richard Moore
Investigative Reporter

Gov.-elect Scott Walker promised during this year's campaign he would reform the state's administrative rule process if elected, and on Tuesday he took a stab at doing just that, proposing that agencies obtain explicit legislative authority before writing them.

The reform legislation, to be considered as part of a special session of the Legislature Walker will call Jan. 3, 2011, would also require the governor's approval before any rule could take effect.

Finally, the measures - which would constitute the most sweeping reform of the administrative rule process in decades - would allow legal challenges to rules in counties where the petitioner is located. Right now, rules can only be challenged in Dane County circuit courts.

Business groups immediately hailed the proposals as critical components of a movement to reduce the state's regulatory burdens on business.

"The regulatory reform package announced by Gov.-elect Walker is a very important step toward improving Wisconsin's business climate," James Buchen, vice president of government relations for Wisconsin Manufacturers & Commerce, said. "These reforms will help businesses create and retain jobs in our state by providing badly needed checks and balances on agencies when they write rules that have the force of law."

Dairy Business Association executive director Laurie Fischer agreed.

"Our dairy businesses have struggled to keep up with an onslaught of ever changing and increasing regulations state agencies have placed upon them," Fischer said. "Gov.-elect Walker's paper is a true sign that Wisconsin is open for business. We applaud these reforms and hope the Legislature will vote on these measures as soon as possible."

Democratic lawmakers and their liberal allies were not so enthusiastic.

State Sen. Mark Miller (D-Monona) called it "a naked power grab," while state Rep. Peter Barca (D-Kenosha) also said the governor was attempting to take ever more authority for himself.

"A more business friendly regulatory environment is an important goal, so long as it continues to protect worker safety and the environment," Barca said. "However, while the governor-elect has not released many details about his proposal, one concern that jumps out at me is that it appears to simply consolidate more power in the governor's office."

One Wisconsin Now executive director Scot Ross said the proposal amounted to a give away to corporate interests.

"Scott Walker's regulatory plan is to turn the governor's office into the state's largest lobbyist waiting room," Ross said. "This is an unprecedented power grab to ensure Scott Walker's corporate campaign donors can rewrite regulations to their exact corporate liking without having to trouble with public input or scientific impact."

For his part, Walker said the new authority would make state agencies more accountable to elected officials for rules that have the force of law.

"For too long the overregulation of business has stifled job growth within our state and repelled job creators from others," Walker said. "The common sense reforms contained in our proposal will take the power of regulating away from unelected bureaucrats and put it back where it belongs - in the hands of the people. I believe the Legislature should exclusively have the power to create laws."

Walker said the state's bureaucracy should only implement rules and regulations passed by the Legislature and approved by the governor.

The white paper

The Walker team released a "white paper" containing details of how the process would work.

First, the paper asserted, Wisconsin's unelected agency bureaucrats have attained too much broad rulemaking authority.

To cite one example, the paper stated, the state Department of Commerce implemented rules requiring sprinkler systems in all multifamily dwellings except certain townhouse units even though state law explicitly stated that sprinkler systems were required only on multifamily dwellings exceeding 16,000 square feet or more than 20 dwelling units.

The paper also targeted Gov. Jim Doyle's failed attempt to pass global warming legislation.

"This proposal, which would have regulated everything from car emissions to electronic devices, would have had a dramatic negative impact on the state's economy," the paper stated. "While this proposal never moved through the legislative process, Public Service Commission Chair Eric Callisto was reported to say that he did not need the legislation to impose these regulations."

The problem is, the paper continued, unelected bureaucrats are drafting rules and regulations based on their departments' general duties provisions, rather than on the more specific laws the Legislature meant to govern targeted industries or activities.

"Instead of basing rules on the specific rule of law approved by the legislature, bureaucrats are empowering themselves to use the department's overall duties provision," the paper stated. "Laws are created by the elected officials in the legislature who have been empowered by the taxpayers, not employees of the State of Wisconsin. The practice of creating rules without explicit legislative authority is a constitutionally questionable practice that grants power to individuals who are not accountable to Wisconsin citizens."

Under Walker's proposal, an agency would not be able to create rules more restrictive than the regulatory standards or thresholds provided by the Legislature, and an agency could not create rules the Legislature did not explicitly authorize in state statutes.

"This legislation sends a clear signal that rules are to be based on laws passed by the legislature and not by the agendas of unelected bureaucrats within state agencies," the paper stated. "This will force agencies to tailor their rules to the Legislature's intent."

Legal challenge

Another problem with administrative rules, the paper argued, is that no regional consideration is given to the rule's application during a legal challenge.

That is to say, legal challenges to administrative rules can be brought only in Dane County circuit courts.

Under Walker's plan, when an individual or group wishes to challenge the validity of an administrative rule, they could do so in the circuit court for the county where the plaintiff resides.

"Because administrative rules apply equally in all counties, there is no justification to limit a person's ability to challenge a rule in Dane County only," the paper stated. "By only allowing Dane County Circuit Courts to rule on their validity, the rights of people and businesses in 71 other counties are in the hands of one set of judges."

Ultimately, the paper asserts, unelected bureaucrats have the ability to create laws without a proper check or balance on that power, which has resulted in an overall lack of accountability in the regulatory process.

"Currently a rule approved by an agency has the immediate force of law," the paper states. "While the Legislature has the ability to reject a rule, when dealing with a controversial regulation, if the Joint Committee on Review of Administrative Rules (JCRAR) ties in a vote to suspend, delay or return for modification or fails to take action, the rule goes into effect with the force of law."

Requiring gubernatorial approval of rules before the rule or regulation has the force of law would solve that problem, the paper stated.

Specifically, the legislation would mandate a statement of scope approved by the governor as well as by the policy-making individual or body before the statement of scope may be sent to the Legislative Reference Bureau for publication in the register.

Automatic approval of a statement of scope would be eliminated, and agencies would be required to prepare and obtain approval of a revised statement of scope if the agency changed the scope in any meaningful or measurable way.

Finally, an agency would have to submit the proposed rule in final draft form to the governor for approval before the rule could be submitted to the Legislature for review or filed with the Legislative Reference Bureau for publication.

"This legislation creates an appropriate check and balance to the broad power state agencies have to create laws," the paper stated. "Accountability will be restored to the regulatory process by requiring gubernatorial approval of rules and explicitly stating that the Legislature creates laws."

Richard Moore can be reached at rmmoore1@frontier.com

Reader Comments

Posted: Wednesday, March 2, 2011
Article comment by: James Baird

I notice that you reserver the right to accept or reject comments. Pompous, right wing wind bags always do. No criticism allowed. You sit on the right hand of God and judge the quick and the dead.

Big bankers and big unions in bed to gather plotting the down fall of poor little guys like you. Your conspiracy theories against the liberal government, the hero of the second world war, show that only the "me for my self and my kind" and suited to rule. Rule with an iron hand.

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