to you how these work, good, all right I guess so yeah there's a whole bunch of
Supreme Court decisions over the last year that have really changed the ground
working the capital of the relationship between the executive and the legislative
teachers. So just start with summarize what how would you summarize to your
public, your constituents of what 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 rule making
process without any legislative oversight and potentially ignoring
legislative intent during the during that process. So you serve as a co-chair of
JCR. How long have you been on that committee and what why do you want to be
on that? I mean tell me is that's one of those things where I'm sure from the
outside like what committee like how you got on there and what your 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 the legislature and I requested to
be 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
the feel of the impact of those rules. And there's a lot of people they will
casually follow government over here and the here bill was passed I think
that's the way laws are made but this whole other process exists and need to
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 authority 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 Revers in his
law suit said that basically you guys went too far you were shutting down
everything you're shutting down 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 to those? I would say
that's political because the vast majority of the rules that he proposes
in his agency proposed 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 you know the old Capitol
Hills song of how a bill gets passed and then the governor signs into law but
often that says you know this it doesn't lay out every single granular detail
implemented so what what is the rules making process from your point of view?
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 that can go emergency rules
go and affect right away and but when you go through the permanent rule making
process there's there can have 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 rule-making authority where they
believe they have rule-making authority to primary rules on PFAS 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 to 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 5% are like hey maybe instead of doing a 8,000% 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
object to it we no longer have that ability. Well one of the things one of
the rule sense that was part of this lawsuit is about building so walkers
through why that was objected to and how that would have held 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 or 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 ability 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 you know stopped got all
the attention versus the percentage that went through the normal process and
were made better by having over 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 believe through and the courts agreed should have gone
through the rule making 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 I
think the headline should be we lost legislative oversight because that's
what really happened and I mean Justice Haggador referenced that in all
arguments and in his in part agreement and dissent in his opinion that you know
this really did be a fun to create a fundamental shift in government to
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 the 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 rule making
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
the end of Governor Walker's hair they did they changed how what the oversight
and the amount of oversight giving you even stronger power to be 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 he monitors leverage
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 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
rule making process and us had any ability to protect from that but I think
what was lost maybe and what we're seeing now is how much this is expanded
executive authority and how much is actually expanded the ability to side
step 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 typically 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 yeah 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 of gray area and you could look at where agencies could look
at old laws that have been passed to adopt new rules to implement changes from
previous laws you could see a lot of increased fees like we have examples
already now of agencies raising fees through the administrative rule making
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 to for gender
conversion therapy standards for practicing psychologists right so they
use their rule making authority to adopt these new standards which went to the
Supreme Court and we lost and in here we are because of it so there are some
people who say well the only reason this lawsuit took place is JCR AR but too
far you stopped too many rules you did too good of a job the 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 here 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 one in reality this is about legislative
oversight and checks and balances 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 weekend 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 Republican civil we're not
gonna respond but there's bills out there to say well here's how we could do it
under the new standards according to what 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 there is I think 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 you know the Congressional Review Act at the federal
level is a way that a legislative body has the ability to object to a rule from
a federal agency right you could look at look at maybe 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 Race
gear 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 in the threat of the governor's veto pain or some of these
other concerns do you think that'll be the status quo going forward where the
way that bills are written yeah maybe much more specific in terms of what they
will allow for rule promulgation afterwards instead of being as broad because
you knew you had oversight in the back yeah moving forward I and you're already
seeing bills be much more prescriptive and not granting rule make 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 proof we're gonna have to do that with legislation to try to
avoid getting rules promulgated through the administrative rulemaking process
so one other area that we we haven't really references election law because
obviously they'd oversight over what they were proposing right all right what does
that mean is we're gonna head into a very expensive and contentious midterm
sure 26 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 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 we're not 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 are I'm sorry no that that's that's told that was actually
good answer okay but as far as I mean are you 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 emergency rules things change the
last minute is their concern with more people are skeptical of the security
of our elections that some will could come out and you don't have oversight to
say hey that's that's not how it works yeah that 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 the weak and 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 Evers is not running is this the kind of issue that people
can actually pay attention to or is this unfortunately it's still two in the
weeds from the average voter to go well that's a reason I'm going to vote it 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 of 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 rule the day if they actually win a narrow majority in the
legislature control JCRR but there's Republican governor that's now has no
checks and balances I think 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 think 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't put a check back in place when an agency does a rule it actually
still goes through the legislative process so 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 of times when you get
them in the same room their goals are actually aligned so just being that
facilitator we're still going to play that role we're still going to call out
bad rules when we see them we're just not going to 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 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
farmers do you walk me through some of the details there 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 race deer program pay when somebody comes in and hunts a deer on
their farm and currently it's correct yeah and their current fee that the
businesses are paying the state for the ability to do business is three hundred
and twenty five dollars basically and the new proposal and we can share this
with you is two thousand nine hundred dollars an increase of seven hundred and
ninety two percent so we're talking about almost three thousand dollar fee
new fee through administrative rule on these farm race deer programs
so all the 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 and the justification like the cost of CWD coming from these
facility 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 have the oversight you did would be what we would probably do is
and what we probably still will do is request modifications but the the
deadcap does not have to implement our modifications and we have no ability to
object so they will take our opinion and in some ways will 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 the Republicans took out and yeah 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 their general
authority costs are going up like this CWD program is much more expensive the
testing or whatever our costs have increased 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 balance of power yeah I mean we have a 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 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 increased 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 a
business through an administrative rulemaking process
thank you I'm glad you brought that up because I heard of that one