Even a casual observer could conclude the relationship between the Republican
legislature and the Democratic Governor is dysfunctional in Wisconsin. Long stretches
where they don't talk to each other, lawsuits, vetoes, and endarounds to get their ways.
Now the very balance of power between the legislature and the executive branch is in
the hands of the Wisconsin Supreme Court with a series of cases having to do with whether
administrative rules can be effectively vetoed by the legislature. As a lot to unpack and
hear to do, it's in your political reporter Zach Schultz who joins us from the Supreme
Court in Hizak. Hello, Fred. So first, describe the kinds of rules and over what that we're
talking about. Well, the particular cases the Supreme Court heard this week. One of
them was a rule about building codes. And another rule had to do with a ban on conversion
therapy, which is a type of therapy that tries to convince LGBTQ people that they are actually
straight people. And the state wanted to ban that. And it's a committee in the legislature,
the JCRAR, the Joint Committee for the Review of Administrative Rules. It's a small committee
with just a handful of members that can eventually put a hold on any of these rules coming out
of administrative agencies and stop them from taking effect. And when they do that, it's
in effect a legislative veto over administrative power. And the Supreme Court is trying to weigh
whether that's too much, whether that's actually allowed under the Constitution and where that
balance of power should reside. So what has the Republican majority Joint Committee on
Review of these rules been able to do with some of Evers' authority to set various rules?
Well, they basically been able to put them on hold. They have various authority when a rule
goes into place. They can call the committee into action and they can hold the rule. They
can suspend it for a short amount of time or they can suspend it for up to the full two-year
legislative cycle and then come back into the next session and suspend it again,
which effectively creates a permanent suspension of the rule. All they have to do is introduce a
bill in the legislature that would overrule the rule and that gets put on the table, gets held,
never has a hearing committee, goes nowhere and effectively the rule suspended. The ban on
conversion therapy, for instance, was first introduced in 2020 and it's only been in effect
for a handful of weeks over the nearly five years since then because JCRAR keeps coming in and
suspending it. It's in effect for the moment right now but starting tomorrow, JCRAR can come back
into session and put a hold on that rule and then it'll be suspended for as long as they want,
possibly the next two years. So a potential swing vote on the court in the way of Justice
Brian Haggadorn said during oral arguments that this decision is especially consequential for the
operation of government. Describe how? Well, the kind of goes back to the bedrock of how we create
laws, the legislature could pass a law, the governor can veto it. If the governor signs that
often the law is broad and then their agencies, the DNR or the Department of Health and Family
Services, they have to create rules that carry out how those laws apply to businesses and people
throughout the state. Those rules effectively have the power of law behind them and often they can
become very granular and specific and sometimes it takes years to promulgate or create that rule
and put it into place. But then this legislative committee can come back and veto that rule and
descend it back and it goes nowhere. So it's a legislative veto on administrative power. If
the Supreme Court decides that that no longer applies, then the rules from the administration
go into effect essentially with the power of law and that could reshape what the legislature
writes into their own laws and that balance the power of how the two branches of government work
together. So is the rules committee allowed such power under the Wisconsin Constitution or other
court case precedent? Well, the one that they're looking at the most is a court, a Supreme Court
decision from 1992 called Martinez. And the question is whether they should overturn that rule or
just adjust it slightly because the power of J. Crawley's committee did grow in the Walker
era. He gave them more expansive powers to hold and suspend some of these rules for longer.
But even Haggadorn in his comments from during oral arguments said that there really is no basis
for this relationship in the Constitution. It's called a gentleman's agreement between the two
branches of government of how they would go about doing it. Because since 1992, when the legislature
has created laws, they've done it with the understanding that when it comes to creating rules under that
law of how it would be applied, the legislature would have some sort of say over what those rules
said. And that could shift what kind of laws they write and what how old laws are interpreted
under rules. So this court could change the current balance of power as we know it.
Absolutely. Fundamentally change, especially the way that the makeup has been in the six years we've
had with governor Evers and power with Republicans in control of the legislature. So certainly
the next two years going forward, but fundamentally beyond the time scale of this because if they
change the way this works, then that's a Supreme Court decision. Just like Martinez was on the
books for 30 some years, this could be on the books for generations to come. Future
administrations, either Republican or Democratic governors and legislatures of either party
would be under the same system having to figure out how does it apply? How do they write a law and
how do they create a rule that is fair for everyone? So the court this morning also released a
decision on whether the names and addresses of people deemed incompetent to vote should be
made public. What did they do with that case? Essentially, a Supreme Court
punted it back to the Court of Appeals. It's kind of a convoluted case. The essence of it is whether
a conservative voter interest group could get access to the records of all those voters,
all those people in the state that are deemed incompetent to vote. And whether they could then
check those names against the voter registration rules to determine if someone was voting on their
behalf, if they're not supposed to be. A Court of Appeals of Madison said, no, you don't you
don't have a right to those. Those are privacy issues. A second Court of Appeals in Wonka
Shock, conservative one said, no, we think you have a right to those. The Supreme Court kicked
it back and said, you can't overrule one Supreme Court, one appeals court, do it right, and then
we'll decide if we take the court case properly. So for right now, they don't have access to those
records. That's the status quo for the moment. All right. Well, thank you. Thank you for all
you're reporting from the Wisconsin High Court, Zach Schultz. Thank you.
Filling just a little bit there. Thank you. Wow. Look at you. You should get the the Golden
Gavill Award. I got that once. Yeah. Well, you could get it again. Thank you. Have a good
weekend. Be safe. Yep. Yep. So for mountain lions. Now that we know they exist.