It’s been called Wisconsin’s dirty little secret. It most certainly is a skeleton in the democratic closet – a scandal if it ever gets out.
Well, it’s time to out it.
I’m talking about the state’s administrative rule process, by which – you may not know – the state’s bureaucracies have effectively staged a coup d’etat over our elected lawmakers. That enables unelected bureaucrats to countermand the intent of laws passed by elected officials.
So just what is an administrative rule?
Here’s the official state definition: “A rule is an agency policy that governs people’s rights or conduct and has the force of law. Agencies promulgate administrative rules in order to administer and enforce specific state laws and to implement general agency objectives.”
That’s partly right and partly wrong.
Administrative rules certainly have the force of law, and they certainly are “governing” people, but all too often these days the rules are not so much administering and enforcing specific statutes as they are creating new ones.
That’s right. Unelected bureaucrats are writing laws that govern our daily lives, and our elected lawmakers have little to say about it.
Here’s how the process works. Once the Legislature passes a law, the appropriate state agency ostensibly creates a rule by which to put it into effect.
For example, state statutes require the Department of Administration to issue bids for state construction projects. The administrative rule for that statute defines explicitly how those bids will be advertised, the timeframe for bidding, what the advertisements for proposals must contain, and it offers definitions for such things as the lowest qualified bidder.
In other words, it sets out how the department will actually implement the law so everybody knows the rules of the game.
Once the rule is promulgated, it’s submitted to the Legislature for review. After 30 calendar days, if there is no objection, the rules can be filed with the secretary of state and thus attain the force of law.
So far, so good.
Unfortunately, in Wisconsin, large state bureaucracies – and in particular the Department of Natural Resources, though that agency is by no means the sole culprit – have subverted the process.
What they have done is use the rulemaking process to make laws of their own desire – often times enacting regulations that directly contradict what lawmakers intended when they passed the legislation in the first place.
A perfect example is Act 118, the state’s so-called Job Creation Act that the Legislature passed to provide for a quicker, more streamlined waterway permitting process on all but the state’s most sensitive water bodies. Environmentalists immediately attacked the legislation and urged Gov. Jim Doyle to veto it. He signed it anyway.
Then, at the urging of the environmentalists, came the attempted administrative rule. It’s pretty clear what they wanted – a rule that would basically restore the previous law. They wanted the DNR to effectively repeal what lawmakers had passed and the governor had signed.
And the DNR obliged them by writing an emergency rule that excluded most water bodies from the more lenient permitting provisions. What they wrote was a bureaucratically divined law that would supersede the democratically enacted state statute.
Not only that but environmentalists were quite candid and proud that they were having an unelected bureaucracy undo the work of the elected Legislature.
The Sierra Club, for example, said the new rule was needed to “fill in gaps” in the statute, while Wisconsin Wildlife Federation president Jerry Knuth was even more blunt.
“DNR staff have recommended to the Board that they adopt a detailed set of emergency rules that restore many of the protective standards that were deleted from the statutes in Act 118,” Knuth said when the rules were proposed.
The key words are “restore many of the protective standards that were deleted from the statutes.” In other words, they wanted the agency to repeal the offending portions of the act. They wanted the DNR to write a new law, which is exactly what DNR staff attempted to do.
In the end, they didn’t quite get away with it, but in many other cases they have, and they are continuing to use the rule process to write new laws.
To wit, in today’s edition, we report on a rule being promulgated to control invasive species. Among other things, it’s unconstitutional because it would give DNR thugs the right to engage in warrantless searches of our property any time they “believe” somebody is harboring an invasive species fugitive.
That’s another issue entirely, but in the rule we see the unelected bureaucrats once again trying to write their own laws.
Specifically, the rule would outlaw the transport of aquatic plants and animals, not just invasive aquatic plants and animals, and, as we report, the state’s Legislative Council has questioned this:
“The department should explain its authority to prohibit the transport of all aquatic plants and all animals on highways, instead of just the transport of invasive species, and the reconciliation of that authority with the more limited prohibition under [the statute],” the council stated.
The bottom line is, there is no state statute prohibiting the transport of all aquatic plants and animals.
Mind you, I’m not saying that the rule provision is bad or good. What I’m saying is, the Legislature should make the law, not the bureaucracy.
The reason bureaucracies attempt to make their own laws – and often get away with it – is because our state’s administrative rule process is outdated and backwards.
The problem is, once a rule is enacted, it’s very difficult for the Legislature to overturn. That’s the dirty little secret.
They can issue a temporary suspension, after which the rule takes effect, but blocking the rule completely requires both chambers to actually pass new legislation to do so, which must in turn be signed into law by the governor.
The burden is placed on the Legislature, in other words, to undo the machinations of the bureaucracy rather than on the bureaucracy to prove that its rules comport with legislative intent.
The process has been stood on its head, and we need to right it, as other states have done. Simply put, when a rule is sent to the Legislature after being promulgated, the rules review committee or the committee of jurisdiction for that agency should be able to simply veto the rule and have it die forever, with instructions to the agency to bring to the table something that fits with legislative intent. Period.
Surely, the Legislature should be able to simply assert its intent and directly veto the bureaucrats.
Full disclosure is required. Such a modification of the process will likely require a constitutional amendment.
That’s because, in state after state, courts have ruled that a direct legislative veto of an administrative rule violates the constitutional separation of powers between the branches of government.
It’s the Legislature’s duty to pass laws, in other words, and it’s the executive branch’s duty to administer and enforce those laws, and the rules they write to do so are none of the Legislature’s business, even if the rules subvert the intent of the legislation.
Hence, the reason lawmakers have to pass entirely new legislation to override a rule they directed to be written in the first place.
How about that kettle of fish? You can just see DNR officials yelling, “Yeah, it’s none of your business what laws we make!”
Not so fast, though. In other states, officials have said it is the people’s business what the bureaucrats do.
In those states, officials said, “Sure, we understand the constitutional principle of separation of powers, but we also understand that, in this case, the practical effect is to elevate an unelected bureaucracy over elected lawmakers. So we’re going to amend our constitution.”
And that’s exactly what they did, from Connecticut to Iowa to Michigan to New Jersey to South Dakota and beyond, to allow for direct legislative veto of an administrative rule.
And that’s what we should do here in Wisconsin.
For too long we have watched and let bureaucracies devour our democracy and take over our lives with absurd rules and regulations.
We have watched them grow to outrageous size. In some cases, as with the DNR, they have established their own police powers, their own courts.
Now they are writing laws, too. It’s their dirty little secret.
It’s time to expose it, and clean up Madison with the openness of true legislative democracy.