Problem: Wisconsin’s unelected agency bureaucrats have broad rulemaking authority.
Specific examples: The Wisconsin Department of Commerce implemented rules requiring sprinkler systems in all multifamily dwellings except certain townhouse units even though state law explicitly stated that the sprinkler systems were required on multifamily dwellings exceeding 16,000 square feet or more than 20 dwelling units.
One of the most contentious proposals in the last legislative session was Governor Jim Doyle’s 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. 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.
Details: Unelected bureaucrats are drafting rules and regulations based on the department’s general duties provisions, not based 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.
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.
Solution: Legislation that states an agency may not create rules more restrictive than the regulatory standards or thresholds provided by the legislatures. Specifically stating that the department’s broad statement of policies or general duties or powers provisions do not empower the department to create rules not explicitly authorized in the state statutes.
Purpose: 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. This will force agencies to tailor their rules to the Legislature’s intent. This will create certainty in Wisconsin’s regulatory climate, which will be an important part of ensuring that the private sector can create 250,000 jobs.
Problem: When legally challenging rules and regulations, no regional consideration is given to their application.
Details: When an individual or group wishes to challenge the validity of an administrative rule, it may only be done in Dane County Circuit Court. 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. 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.
Solution: Legislation that allows legal challenges to rules to be brought in the circuit court for the county where the plaintiff resides.
Purpose: This legislation makes it fairer for citizens to challenge rules and regulations by allowing each county circuit court to review their application considering the unique characteristics of the location where the plaintiff resides.
Problem: Unelected bureaucrats have the ability to create laws without a proper check or balance on their power, which causes an overall lack of accountability in the regulatory process.
Details: Currently a rule approved by an agency has the immediate force of law. 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.
Solution: Legislation that requires gubernatorial approval before the rule or regulation has the force of law. Specifically the legislation states:
1. A statement of scope must be 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.
2. Eliminates automatic approval of a statement of scope.
3. Requires an agency to prepare and obtain approval of a revised statement of scope if the agency changes the scope in any meaningful or measurable way.
4. An agency must submit the proposed rule in final draft form to the Governor for approval before the rule may be submitted to the legislature for review or filed with the Legislative Reference Bureau for publication.
It is worth noting this in no way changes the current JCRAR process or diminishes the Legislature’s ability to delay, reject or ask for modifications to a rule.
Purpose: This legislation creates an appropriate check and balance to the broad power state agencies have to create laws. Accountability will be restored to the regulatory process by requiring gubernatorial approval of rules and explicitly stating that the Legislature creates laws.
Elected officials can be held accountable for the rules and regulations that are implemented.