A group of local officials called them “Unfair and undemocratic!”
The president of Wisconsin AFL-CIO described them as “unprecedented power grabs and ruthless partisan politics!”
One state senator said they were “a permanent stain on … our state’s legacy.”
They were all referring to the recent bills passed by the Wisconsin state legislature in the wake of the midterm elections – bills that are said to “restrict” the incoming governor’s powers – and signed into law by Gov. Scott Walker.
After sifting through all the hyperbole, however, two observations stand out.
First, the attempts to pass lame-duck legislation are, historically, not unheard of in our state.
As recently as December 2010, just before Gov. Jim Doyle left office, Democrats in the state House attempted to pass legislation approving public-sector contracts over the objections of Gov.-elect Scott Walker. The contracts were significant – they would have covered 39,000 state workers.
Second, these critiques fail to address the acts’ merits. A far more objective review of the legislation reveals that several measures are helpful reforms that promote much-needed improvements in our state’s governance.
One reform aims to increase transparency and the rule of law. State agencies often issue guidance documents that circumvent the rule-making process and implement state law. In addition, these agencies often make it difficult for the public to follow them.
Newly signed legislation would require these guidance documents be published and posted online, and allow the public the opportunity to make comments about them. It would also prevent judges from having to give deference to state agencies’ interpretations of laws when they are challenged in court.
In addition, the act clarifies that these guidance documents do not have the force of law and that state agencies must explicitly cite the relevant existing state law or administrative rule in the documents.
Another reform prohibits the practice of “sue and settle,” which allows special interests and compliant politicians to conspire to circumvent the legislative and regulatory processes. It works like this: some special interest group will sue the state for not issuing a rule the group wants. Instead of fighting the suit, the government settles the lawsuit by agreeing to issue the rule outside of the normal process.
That same act would also shift power from unelected, unaccountable state agencies to the people’s representatives in the state legislature. Specifically, it ensures that the legislature has final say on temporarily suspending an administrative rule (which is already the case for permanent rule suspensions).
Another reform would shift spending authority to the legislature, where it belongs. If the state Department of Health Services wants to change the state’s Medical Assistance plan or alter reimbursement rates to providers, it must go through the state legislature. It also removes the authority of reallocating funding, including block grants for Temporary Assistance for Needy Families, from the executive branch and gives it to the state legislature.
According to the Wisconsin Institute for Law & Liberty, these reforms are not an opportunistic usurpation of the people’s will, but rather a legislative package consistent with years of reform efforts: “It is important to repeat that these proposals are a continuation of a nearly decade-long effort by Republican legislatures in the Walker era to attempt to limit the administrative state. The Regulations from the Executive in Need of Scrutiny Act and a number of related bills from the past eight years all limited administrative power at a time when Governor Walker controlled those agencies.”
While there may be aspects of the extraordinary session legislation warranting scrutiny, the regulatory reform components are not an abrogation of the democratic process as critics charge. Much to the contrary, they serve to increase the rule of law and transparency and shift power away from unelected bureaucrats accountable to no one toward elected officials accountable to the citizens of Wisconsin.
Eric Bott is state director of Americans for Prosperity-Wisconsin.