To you how these work.
There's a whole bunch of Supreme
Court decisions over the last year
that have really changed
the ground work in the capital the
relationship between the executive
and the legislative reaches.
So just start with summarize what,
how would you summarize to your
public, to your constituents of
how these changes mean.
I think there's been a travesty of
justice, honestly, because
there has been absolute
weakening of legislative
oversight.
And when you do legislation,
you have to go through a process
which gets the governor's approval
with signature, he signs off on it,
that's checks and balances.
Now the governor can
go through the rulemaking process
without any legislative oversight
and potentially ignoring
legislative intent during
that process.
So, you serve as a co-chair
of JCR,
how long have you been on that
committee and why do you want
to be on that? I mean, tell me.
Because that's one of those things
where I'm sure from the outside,
what committee?
Tell me how you got on there and
what your goal is there.
Yeah, I actually requested to be on
the committee right away.
I've been on the Committee the
entire time I've been on in the
legislature.
And I requested to
chair, I was actually jobs in the
economy chair, and I requested
to change over to this
committee.
And I'm in my second term as
the chair.
And 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, and there's a
process of adopting
these rules.
There's a place for this.
Agencies exist to
implement the
legislative intent.
So there is a place for
administrative rules, but it has a
real-world impact on
businesses and schools and
communities that feel the impact
of those rules.
And there's a lot of people,
they don't casually follow
government over here and they hear a
bill was passed and they think
that's the way laws are made, but
this whole other process exists
and they have the strength of laws,
right?
Absolutely, yeah.
I mean, when so
many of the real
world rules that you see
on a day-to-day basis have been
adopted through the administrative
rulemaking process, both
through legislation that
provides rulemaking authority to
implement a new law or
just simply through general
rulemaking authorities that
the legislature has provided
state agencies.
And there are agencies and boards
that can promulgate and propose
administrative rules that
have the same impact as law.
So Governor Evers in his lawsuit
said that basically you guys went
too far.
You're shutting down everything
You're showing in the process before
the rules even got started You were
setting aside after they were passed
that you were a pocket
veto on putting anything
into place. How do you respond?
I would say that's political,
because the vast majority of
the rules that he proposes
and his agency proposes,
we pass.
There are occasions where we
request modifications, especially
if there are rules targeting
specific businesses, which we're
seeing right now with farm-raised
deers and the fees that they're
trying to propose to put these
businesses out of business.
And we see this where agencies
or the governor might
react in a way that
is, we believe, targeting or
beyond legislative intent.
So we think there should be some
checks and balances in this system
because sometimes he's wrong and
there needs to be legislative
oversight to make sure
that when we pass legislation
It's getting implemented in
the correct way.
So just to give people the,
you know, the old Capitol Hill song
of how a bill gets passed
and then the governor signs into
law, but often it says, you
know, this, it doesn't lay
out every single granular detail
of hardly implemented.
So what, what is the rules making
process from your point?
Sure.
Yeah, I mean, again, there are two
different, there's a lot of
different paths, but there are
the permanent rules
that you have and there's emergency
rules, right? And there's two
different paths that
can go, emergency rules
go into effect right away.
But when go through the permanent
rulemaking process.
It can come from legislation.
So we could pass legislation about
deer farms and then they
could do fees or they could do
things within that rule if it's
not spelled out in the legislation
to help implement that new
law. There's also general
rulemaking authority where they
believe they have rulemaking
authority to promulgate rules on
PFOS or water quality
standards. And they will do
user general making rule making
authority or building codes
to do a general
rule that affects the entire
industry.
So at that point
you have a scope statement that's
proposed approved by the governor,
and then it goes through the
legislative process.
Where we have the ability to send to
a committee, to do a public hearing,
to look at it, and then they
can make recommendations.
If they recommend to object to
it or to, we
can then, as a committee
review that rule and
then we could take action to
object to that rule.
We could also request modifications.
There might be 95%
of it. We might think
is good but five percent
were like hey maybe instead of
doing a eight thousand
percent increase on
farm raised deer we
look at going
up a little bit less right look
what's in line with inflation what
won't put these companies out of
business what's fair what's the
legislative intent and we have some
ability to impact that
now since we can't object
to it we no longer have that
ability.
One of the things, one of the
rule sets that was part of this
lawsuit was about the building.
So walk us through why that was
objected to and how
that would happen under this
new regulatory environment.
Sure.
Well, the building code,
when they proposed the building
code, it went what we believe far
above and beyond legislative intent.
And that they're also,
in their proposal,
did not follow
the law and look at
the cost to implement.
What was the cost to implement, the
cost of compliance on the businesses
impacted by that?
They did not put a number
that made any sense and
when we asked them to
come to the table They
were not really interested in
working with the legislature to
come up with a better code
So they took we
objected are we?
Permanently objected to that rule
and Went
to court and now
after this
court case, we no longer have the
ability to object to
that rule.
So those building codes will be
implemented even though we believe
it went above and beyond legislative
intent and we
did not have the able to
stop it or even request
modifications because they
can just ignore it and implement it
however they see fit.
You mentioned that you've approved
a lot of different rules over
the years in this committee.
So what percentage of the
rules that you either suspended
or stopped got
all the attention versus the
percentage that went through the
normal process and were made better
by having oversight?
Yeah, the ones that we
object to always get more attention,
certainly. I think during
COVID, you started to see a lot
more awareness of the
rule-making process because we
started to object to
the process that the governor was
going through through his
safer-at-home order through masking.
And then those rules and
those executive orders that
were implemented that
we believed through in the courts.
Agreed should have gone through the
rulemaking process.
I think there was a more awareness
to it.
But yes, I mean the idea that
the confrontation always sells
so when we object to
it that gets more attention and
certainly when it goes to court it
gets the most attention.
But I don't think the headline
should be about conversion therapy.
Ithink the headline should be we
lost legislative oversight
because that's what really happened.
And, I mean, Justice
Hagedorn referenced that in oral
arguments and in his, in part,
agreement and dissent in his
opinion, that, you know, this really
did create
a fundamental shift in government
oversight and how the branches work
together. This overturns
a lot of years of
how things have worked.
This is a monumental shift
in the process of
how administrative rules become
law or how
legislation could potentially
be implemented because
previously,
if we did not believe as
a majority that legislation
was being implemented correctly
through the rule-making process, we
could object to that.
Now we can't, so
however that.
Administration or that agency
wants to implement that legislation
through the rulemaking process,
they're able to.
We could request modifications, but
we have no leverage because now we
can't object.
So, one thing that did occur is
during the end of Governor Walker's
era, they changed how
the oversight and the amount of
oversight, giving you even stronger
powers. Because prior to that, there
were 30-day suspensions
and much more limited.
So, what did that
change in terms of the groundwork
of how that relationship existed,
the amount leverage you have?
Sure.
Yeah, I think
Governor Walker recognized maybe
the potential of
misuse in the future, right?
And I think that the fact that the
governor worked with
legislative leaders at the end of
his term to
look at ways to strengthen
legislative oversight and
to adopt a more
fair rule system that
made sure that there wouldn't be,
you know, honestly, part of
the fear, and I think it came up in
the Supreme Court, was this idea of
rogue bureaucrats, right?
And that was one thing that was
discussed in the previous
administration was protecting from
rogue bureaucrats that might be
pushing a political agenda
through the rulemaking process and
us having the ability to protect
from that. But I think what was lost
maybe, and 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.
And that's a real fear
I have and a real question
for the next governor.
It's interesting that under
the legislative process you create a
bill and usually within the
framework of that legislation
exists what rules can
be promulgated at the back end.
But is there a gray area beyond
that where an agency doesn't
necessarily need to have a new
bill passed in order to have
justification for creating a new?
I mean the PFAS style, I mean
there's lots of room for where this
could go, right?
There's a lot of room for where this
could go. There is a lot gray area
and you could look at where agencies
could look old laws that
have been passed to
adopt new rules,
to implement changes from
previous laws.
You could see a lot
increased fees.
Like we have examples already now
of agencies raising fees
through the administrative
rulemaking process.
You also have agencies that
have general rule-making authority
that have, for years,
had the ability to implement rules
like, for example, the Social
Workers Examining Board who are
adopting these rules
for gender
conversion therapy standards for
practicing psychologists.
So they used
their rule- making authority to
adopt these new standards, which
went to the Supreme Court and we
lost and here we are because of
it.
So, there are some people
who say, well, the only reason this
lawsuit took place is JCRAR
went too far.
You stopped too many rules, you did
too good of a job, the lame duck
laws were too strong and too
over-sweeping in one way that
the old balance was better,
and that's why it was upheld when it
had been looked at in prior Supreme
Court.
Sure. Yeah, I think that's
political.
I think that when
you look at this from a
like, we win this
battle that I feel like
the left is battling us
right now on something that
has to do with
gender conversion therapy
and social worker examining board
standards.
When in reality, this is about
legislative oversight and checks
and And I do
wish we were able to work
together to understand and
see what's at stake
here and what we could be allowing
for in the future because
with the line item veto
and now the weakened legislative
oversight of administrative rules,
we've created a system to allow
for a very strong executive
with very little legislative
oversight.
So, in the sense that
the Knowles-Nelson stewardship fund,
you know, the Republicans say, well,
we're not going to refund it.
But there's bills out there to say,
here's how we could do it under the
new standards according to the
Supreme Court decision.
Is there a possibility of
trying to recreate some of
the oversight that existed without
going as far as it did, to
at least give you more of a say?
Yeah, that's a good question and I
think there is.
I think that there will be an effort
to look at, okay, what's possible,
right? We can't go back to the old
way, right, that didn't work, that
was thrown out, but what is a way we
could potentially work together?
I mean, you could look at the
Congressional Review Act at the
federal level as a way that
a legislative body has the ability
to object to a rule from
a federal agency, right.
You could look maybe at
adopting some of that into the
state. The issue that we...
Currently have now is any
objection that we have has to
be signed by the governor.
And I think that's the the
issue that we have that we're not
going to be able to stop
executive overreach if
it happens.
And we're seeing a little
bit of it here with the some
of these rules that are already
coming out that are getting
promulgated with the farm raised
deer program.
And we aren't going to have
the ability to work
with those agencies because we'll
have no leverage to object to
those rules.
So, similar to
the literacy funding,
the legislature has been creative
in terms of trying to how do they
approach the threat of the
governor's veto pen or some of these
other concerns.
Do you think that'll be the status
quo going forward where the way the
bills are written may be much
more specific in terms
what they will allow for rule
promulgation afterwards instead of
being as broad as you knew you had
oversight in the past.
Yeah, moving forward, and
you're already seeing bills be much
more prescriptive and
not granting rulemaker
authority explicitly through
legislation.
I think that's been something that
we've been careful of this whole
session, knowing that there
is this pending Supreme Court
decision. And I think you'll
continue to see that moving forward
the same way, you know, in the
budget process, you have to look
through every line to make
sure every word is veto.
We're going to have to do that
with legislation to try to
avoid getting rules
promulgated through the
administrative rulemaking process.
So one other area that we haven't
really referenced is election law
because obviously you had oversight
over what they were proposing as
well. What does that mean is we're
going to head into a very expensive
and contentious midterm in
June 26th.
Yeah, I mean, some may
argue you could look at the most
recent Wisconsin elections
commission administrative rule and
see it as a sign of bipartisan
agreement.
There was a big
rule that went through our
administrative process.
I actually voted no.
It's still passed.
Um, so I
would remind the governor and those
that support that
administrative rule that there is an
opportunity for bipartisan
support through the rulemaking
process, which if you
just read their perspective, we
obstruct everything and
they're not able to get anything
done, which I think is again,
being political and it has real
world consequences on
what's happening today.
I didn't answer your question.
You can ask me again if you want.
I'm sorry.
No, that was actually
a good answer,
but is
there a concern out there that there
could be some, because there's
always last minute lawsuits when it
comes to elections, there's always
last-minute rules and emergency
rules, things change at the
last minute.
Is there concern, as more people are
skeptical of the security of our
elections, that some rule could come
out and you don't have oversight to
say, hey, no, that's not how it
should work.
Yeah, one of my fears
is just the
amount of people that are generally
skeptical about our elections and
when you do have decisions like
this that weaken legislative
oversight and strengthen
agencies such as
the elections commission to be able
to promulgate rules without
oversight, that's a massive
fear. Not just because
they might take advantage,
but because the
idea that some people already
mistrust our elections.
So we need to have protections in
place to show people
that, no, we have
a system that works and it's
secure.
And part of that is having
bipartisan agreement, which you
saw through the last
elections commission rule.
So, Governor Eater's not running.
Is this the kind of issue that
people can actually pay attention
to, or is this, unfortunately,
still too in the weeds for the
average voter to go, well, that's
the reason I'm going to vote one way
or the other when it comes to
a gubernatorial election.
I hope and pray this is
the number one issue in
the upcoming gubernatorial election,
because there are
massive stakes on the line in
terms of what the next
administration is going to do with
their rulemaking authority.
Are they going to work in a
bipartisan way to put the checks
and balances back in place
so people are able to
believe? In the integrity of our
election system to believe that the
laws of the land are getting
implemented in the correct way,
I think there needs to be some sort
of bipartisan agreement, some sort
working together to
make sure that we put
checks and balances back into our
system.
So, Democrats are
bullish that they think they can
flip control of the legislature,
and obviously every election,
especially at the top of the ticket,
is up for grabs in Wisconsin.
So, could they rue the day if they
actually win a narrow majority in
the legislature control J.C.A.R.R.,
but there's a Republican governor
that now has no checks and balances.
If you are just looking at it from
a objective standpoint,
there has to be a fear from
both sides that what
somebody unethical or
maybe not with the
best interest of the
state might be able
to do through the rulemaking process
and just the idea that
Someone could target a
business, someone could target an
industry, put them out of business
by raising their fees, by making
the rules so impossible for
them to navigate, that
I think there's going to be a
fear on both sides that I it
is incumbent upon us as
leaders in the state to step up and
say, no, let's have a
bipartisan agreement where there's
legislative oversight.
We don't have to weaken the ability
of the governor.
But we can put a check back
in place when an agency does a
rule, it actually still goes
through the legislative process.
So run for, following
the Supreme Court decision, what
exactly does your committee do?
Sure.
Well we can still request
modifications.
We can still hold public hearings.
We can still do
a lot of the things we could
previously and hopefully the
agencies will be able to still
want to sit down at the table and
negotiate with stakeholders because
one of the main things our committee
does is just bring stakeholders
together with agencies and
work through the differences because
a lot times when you get them in the
same room their goals are actually
why.
So just being that facilitator,
we're still going to play that role.
We're still gonna call out bad rules
when we see them.
We're just not gonna have the
ability to object like we used
to.
Would you still want to serve on
this committee in the next session?
Absolutely, I think this committee
is vital. We'll see what the
future has in store, but I
think that this is the most
important issue of our time.
So I see you've got a printout
there, so you've referenced a couple
times some of the farm-raised
deer. Walk me through some of
details there, because that's one I
haven't heard of yet.
Sure. Well, we have
a proposal that's still in
the early stages.
It's still going to be a scope
statement. So it's not out as a
promulgated rule, but it's
from the
Department of Agriculture, Trade and
Consumer Protection.
And it shows the
current fees that businesses
that have the farm raised deer
program pay
when somebody comes in and hunts
a deer on their farm.
Um,
and currently it's...
Sorry, these are like gaming farms.
Which I would come in to pay a
hundred trophy bucks.
Yeah and their
current fee that the businesses
are paying the state for
the ability to do business is
$325 basically
and the
new proposal and we can
share this with you is $2,900
an increase of So
we're talking
about almost $3,000
fee, new fee through
administrative rule.
On these farm raise
deer programs.
So all the
farms that offer this service are
potentially going to be put out of
business by just
having, running their business the
same way they did last month.
Is the justification, like the cost
of CWD coming from these facilities,
I mean, do they need to have a
justification for that?
Yeah, I mean, they could speak to
their justification.
I'm sure they have one, but the
result will be these
companies going out of business.
And this is the example of a rule
that if you still had the
oversight you did would be
What we would probably do is,
and what we probably still will do,
is request modifications.
But the
DADCAP does not
have to implement our
modifications, and
we have no ability to object,
so they will take our
opinion and in some ways we'll
continue to do our best to
offer our advice on how we think
these rules should look.
But the reality is
that now they can implement
this new fee
without a subject.
So, okay, so there's some
of the other fees that, there are
other fees that the governor proposed
in his budget that the Republicans
took out.
And increased fees on licenses
for hunters and fishermen and camps.
Are those things that could be put
forward in a rule?
I mean, is that like a work, instead
of getting it through the budget,
they could do it through the
administrative rule process?
Yeah, I mean, we'll see
how blatant some
of the rules will
be in terms of what authority
that they're going to,
because in their scope statement
they have to point to their
authority to do this.
Now, a lot of times they will just
point to the general authority.
Costs are going up,
like the CWD program is
much more expensive, the testing
or whatever are cost of increase,
here's the new fee.
And they'll promulgate that rule
based on their general authority.
So yeah, it's very possible we could
see that.
I think that the
real fear is
just like, with a new
administration in a deadlocked
government, if what
they will want to legislate
as a super majority
through their agencies,
some sort of super legislature.
So instead of a pocket veto,
it's a pocket legislature.
Basically.
Yeah, instead of a pocket veto, it's
like a pocket legislature.
I mean it's, that is like the
complete shifting of
power.
Yeah, I mean, we have very
much a shift in power after this
Supreme Court ruling.
I mean it has gone from
a system of checks and balances to
now expanded executive authority
and weakened legislative oversight.
Anything else that you'd like to add
on this topic?
No, I appreciate the interest in
the topic. I think it's very
important. I hope people are paying
attention because you look at
what's happening with an
agency, whatever their
intentions are, whatever the cost
increase we have seen,
we just went through a budget
process, so they were able
to ask for an increase to
cover their expenses.
Instead, they're now increasing
the fees directly on the
businesses.
On businesses like.
These farm, these deer farms
that they have indicated they're
no fan of.
So it certainly seems to me they're
being targeted and put out of
business through an administrative
rulemaking process.
Thank you very much.
Thank you. I'm glad you brought that
up because I haven't heard of that
one.