Any discussion?
Hearing none, clerk will call the
roll.
The Joint Committee for the Review
of Administrative Rules is probably
not well known by most people
outside the Capitol.
I've been on the committee the
entire time I've been on
legislature.
But for Representative Adam Nealon,
it's one of the most important
committees because it's been the
place where Republicans can stop
what they view as executive
overreach by the administration of
Governor Tony Evers.
The reason I did is because the
real world impact of
administrative rules.
People don't necessarily understand
that rules have the same impact
as law.
Administrative rules are proposed by
state agencies, so when the
DNR wants to update the standards
on how to clean up a hazardous waste
spill, or the Department of Safety
and Professional Services wants to
the commercial building codes,
they have to go through a series of
steps, including scope statements
and public hearings.
And eventually, the proposed rule
will end up in front of the Joint
Committee for the review of
administrative rules.
On behalf of the department, I
respectfully request that
this committee extend the
expiration date for emergency rule
2502 by 60
days.
The committee can request changes,
but one of the laws passed during
the lame duck session at the end of
Governor Scott Walker's term gave
JCRAR the ability to
indefinitely block rules,
both new rules and old rules
that have already been in effect for
years.
In 2023, the committee blocked
an update to the building code.
When they proposed the building
code, it went, what we believe,
far above and beyond legislative
intent.
The committee also blocked a
proposed rule that would have banned
gay conversion therapy.
We're not here specifically to
discuss the merits of
any conversion therapy or any other
type of therapy.
Governor Evers filed a lawsuit
claiming JCRAR's
ability to indefinitely suspend
rules was a pocket veto
and unconstitutional.
This case is as consequential for
the operation of government as
maybe I've seen in my
time on the court.
At oral arguments, conservative
justice Brian Hagedorn seemed
to acknowledge the decades-old
arrangement may not be legal,
but so many laws have been passed
giving state agencies the power to
make new rules, with the
understanding the legislature had
oversight to make sure they didn't
go too far.
It's not what the Constitution says,
but hey, this is how we've been
operating for a long time.
And the legislature has passed a lot
of laws accepting
the framework that's been...
Maybe it's not what the Constitution
says was the key phrase from
Hagedorn.
In a split decision, the liberal
majority struck down JCRAR's
ability to object and suspend rules.
Sanity will reign, that's
what I think.
We've been dealing with this for
all the time I've been in office,
and that is, this committee,
mainly the leadership, were able to
stop everything dead in their
tracks, and then things
just don't happen.
Governor Tony Evers celebrated the
decision, while Republicans like
Neyland fear what rules may be
coming now that they can't object.
What we're seeing now is
how much this has expanded
executive authority
and how much has actually
expanded the ability
to sidestep
the legislature and potentially
have agency heads create
a super legislature
where they're able to
implement rules with no oversight
from the legislature.
This isn't the only case in the last
term where the Wisconsin Supreme
Court has eliminated legislative
oversight.
In Evers versus Mark Line one,
the court ruled six to one.
The Joint Finance Committee couldn't
hold up purchases by the
Knowles-Nelson Stewardship Fund.
In Call versus Legislature,
the Court ruled seven zero.
The attorney general didn't need JFC
approval to settle civil lawsuits.
Both at the national level and
particularly at Wisconsin, there
is a redefining and shifting of
what people thought was the balance
of power and what the court is
saying is now the balance power.
Former Wisconsin Supreme Court
Justice Janine Geske says
as the partisan divides grow,
the court is being asked to look at
the constitutionality of old
agreements on how government works.
I mean, they either have to say
there's a justification for it,
not just a gentleman's agreement or
party's agreement.
There has to be a constitutional
legal justification, or
if not, we're going to redefine it.
I think there's been a travesty of
justice, honestly, because
there has been absolute
weakening of legislative
oversight.
Neelan may not like it, but
Democrats say the case was only
filed because of what they call the
excessive abuse of authority to
shut down rules, ranging from
the DNR setting safe levels for PFAS
contamination, election rules
on absentee ballots, or the
conversion therapy ban.
But I don't think the headline
should be about conversion therapy.
I think the head line should be we
lost legislative oversight because
that's what really happened.
Geske says she was happy so many
of the cases cut across the partisan
labels on the bench, with
conservatives joining with liberals,
at least in part, on all these
cases.
I think that's healthy.
I really was glad to see that
because I think
a court that is totally predictable
is really a court looks like a
legislature.
The decisions by the court are
already having an impact.
Governor Evers cited the stewardship
decision when he recently approved
raises for state employees passed
in the last budget without sending
them to the Joint Committee on
Employee Relations, as is required
by law.
Republicans refuse to fund the
stewardship fund in the budget and
are working on a new bill to give
them some level of oversight.
Neelan says they were already
drafting legislation in a more
narrow fashion to reduce the
need for agencies to draft rules.
You're already seeing bills be much
more prescriptive,
and not granting rulemaker
authority explicitly through
legislation.
Well, I think that's what happens on
decisions that particularly upend
what people have been doing and
I think what happens is
that the branches get more
creative.
Nielsen says his next bill will
attempt to restore some oversight
for JCRAR in
a way both sides can agree on.
I think there needs to be some sort
of bipartisan agreement, some sort
of working together to
make sure that we put
checks and balances back into our
system.
Reporting from Madison, I'm Zach
Schultz for Here and Now.