February 29, 2016 at 2:08 p.m.
Senate must pass state REINS Act
Senate must pass state REINS Act
The issue then was the power of the Department of Natural Resources and its reign of terror over property owners. Innocent lives were literally being ruined by regulatory thugs, and the Legislature had finally had enough.
So they passed and sent a bill to a Republican governor that would have changed things for the better for so many in the state - a bill to split the DNR in half, in effect, to cut off the head of the snake.
Instead. Gov. Scott McCallum vetoed the measure, squandering a historic opportunity to bring the regulatory Goliath to its knees.
When the state Senate convenes on March 15, it has the same opportunity as McCallum did to strike a blow against overreaching government bureaucracies, and it should do so by unequivocally passing the state's REINS Act.
As we report today, that law would stand the current power structure in Madison on its head. Right now, state agencies can write rules that have the force and effect of law and the Legislature - our elected representatives - are virtually powerless to block those laws.
Technically, they can, but to block any single rule requires a bill passed by both houses and signed by the governor, and that's a hard task even under the best of circumstances, as the McCallum fiasco demonstrates.
The new law, which Gov. Walker says he will gladly sign, would require legislative and gubernatorial approval for major rules to take effect in the first place. That way the people regain control of the state's law-making apparatus.
The bureaucratic control of government has been a growing problem for years, not only exacting billions of dollars through growth- and job-killing regulations but enacting purely partisan political agendas the people themselves want no part of.
Bureaucrats maintain control of the levers of power in two ways. One is through the civil-service system, which protects their jobs and allows them to pursue political goals the voters have rejected.
That's why we called last week for stronger reforms than the state just passed. A new governor should be able to hire and fire public employees at will to ensure that the people's agenda, as expressed through the governor's election, is followed.
The second way - which is more crucial now that the state has left in place the most fundamental civil-service protections for bureaucrats - is through control of the rule-making process. Bureaucrats know it's hard to derail the rules they write, aka the laws we must follow, and so they are constantly emboldened to write rules that often enough thwart the intent of the very legislation the rules are supposed to implement.
Since Walker was elected, the governor's hand in the rule-making process has been strengthened. The governor can now kill regulations he or she doesn't like, but that still leaves the Legislature - the body that writes the laws in the first place - sitting on the outside looking in.
Requiring legislative approval is the antidote to bureaucratic lawmaking. It restores the democratic order of things, so that the people who are elected to make laws actually make them.
Legislative approval of major rules not only will slow the flow of rules overall, it will provide a needed check on unelected executive power by signing off that a rule actually accomplishes what the Legislature intended.
We are baffled and suspicious that at least one business group has tried to defeat this proposal with outright dishonesty. The National Federation of Independent Business, for whatever reasons, says the law will actually increase bureaucratic power in the rule-making process, though nothing could be further from the truth.
The opposition sounds like sour grapes because, under the new law, some small-business cronies allowed into the bureaucratic palace would now have to share their review of rules with others in the bureaucratic hallways of the administration, but that portion of the law only affects the internal processes of rule-making within the executive branch, and it's a process in which the small business advisors had no real power anyway.
No, the truth is the opposite of what the NFIB says it is. For the first time, elected officials would have real power over all the laws of the state. For the first the time in decades, they will truly be able to perform their assigned constitutional functions. For the first time, the true and real costs of proposed regulations will be exposed.
Put simply, the bill makes for a more transparent and democratic government, and it is perhaps the most important piece of legislation to come down the pike since the Legislature tried all those years ago to split the DNR.
There is a major constitutional question about this law, but passage is necessary to force the courts to reverse a flawed U.S. Supreme Court decision that has led to the accumulation of power in unelected bureaucracies.
In that decision, the high court ruled that one house of Congress could not rescind a grant of rule-making authority to the executive branch because that grant of authority had been approved by both houses.
One house could not undo what both houses had agreed to, in other words. That's reasonable, and opponents of the REINS Act say requiring a vote of both houses to enact a rule amounts to the same one-house veto if one house fails to vote for enactment.
What the court failed to recognize was that both houses had agreed in advance to the one-house veto, and that changes the nature of the logic. For if the legislative body is not bound to grant any authority - and it isn't - it is only logical that it can, upon agreement by both chambers, condition the grants of authority it does give to ensure that its intent is delivered.
That's bicameralism by definition and it is also an assertive declaration of the legislature's constitutional powers to make the laws of the land.
Under the REINS Act, both houses would agree in advance that both houses would have to approve major rules. That's also a bicameral assertion of the legislature's constitutional authority, and on both ends of the equation.
Indeed, not giving it such authority has handcuffed legislatures from stopping rules designed specifically to subvert legislative intent. It allows a legislature to reject a maliciously written rule only when certain political conditions prevail, i.e., when enough votes can be mustered in both houses to stop it.
Such a design is an absurdist rendition of the democratic model. It empowers unelected bureaucrats to write laws they say meet legislative intent, without having to go to the bother of having a majority of elected lawmakers actually say that they do.
A more undemocratic scenario can hardly be imagined, and it has played a major role in the expansion of the power of the administrative state.
On March 15, the state Senate has a historic once-in-a-generation chance to curtail that power. Please contact your senators and make sure that they don't McCallum us.
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