December 5, 2018 at 4:10 p.m.
Legislature passes bills to check Evers's powers
New attorney general facing curbs in authority, too
Legislature passes bills to check Evers's powers
The Republican-controlled state Senate voted 17-16 early Wednesday morning to do just that; the Assembly followed with a 56-27 vote to handily pass the measures.
Among other things, the legislation places new restrictions on early voting, limiting it to two weeks before elections, restricts the governor's authority over administrative rules, and endows the Legislature with the power to control the state's economic development corporation until Sept. 1.
As for incoming attorney general Josh Kaul, he would no longer be able to withdraw the state from lawsuits, such as the one Wisconsin is in now that contests the Affordable Care Act. That power would shift to the Legislature.
There were a few concessions along the way. One major measure dropped from the package was a provision to allow the Legislature to replace the attorney general with private attorneys hired by lawmakers.
Lawmakers also defeated a measure to guarantee coverage for pre-existing medical conditions, a key plank in Gov. Scott Walker's failed re-election campaign.
Walker has indicated that he will sign the measures once they land on his desk. The lone Republican senator bolting from the ranks to vote against the final legislation was Sen. Robert Cowles (R-Green Bay).
Antitest and protest
The extraordinary session predictably drew sharp howls of protest from Democrats, as well as from Evers, while Republican leaders sought to justify the calling of the session.
"The Legislature will come back in an extraordinary session to finish our work," Senate majority leader Scott Fitzgerald (R-Juneau) and Assembly speaker Robin Vos (R-Rochester) said in a joint statement. "Wisconsin law, written by the Legislature and signed into law by a governor, should not be erased by the potential political maneuvering of the executive branch. In order to find common ground, everyone must be at the table."
The lawmakers also said the state must stay open for business.
"WEDC, our economic development agency, must continue to have the ability to help spur job creation and business opportunities without fear of being shut down," they said. "The Legislature is the most representative branch in government and we will not stop being a strong voice for our constituents."
However, Rep. Lisa Subeck (D-Madison) said the people of Wisconsin had made it crystal clear on Election Day that they were sick and tired of politicians who put politics ahead of people.
"Yet here we are back in the state Capitol where Republicans are ramming through sweeping changes in an unprecedented power grab that totally and completely undercuts the will of the voters," Subeck said. "Despite an onslaught of Republican attempts to rig the rules in their own favor, the people voted for new leadership in our state. Now, Republicans are changing the rules again in a desperate attempt to cling to their own power despite the will of the people."
Evers himself weighed in with testimony at a hearing to consider the bills.
"On November 6th, Wisconsinites said they agree that we are more than the sum of our differences, and they said it is time for a change from divide-and-conquer politics," Evers wrote in his testimony. "The people of Wisconsin asked us to stop putting politics first, they asked us for a government that works for them, and they asked us to set aside partisanship and political ambitions to work together on the pressing issues facing our state."
Yet, he continued, the legislation being considered and the spirit of the extraordinary session were unfettered attempts to override and ignore what the people of Wisconsin asked for.
"This is rancor and politics as usual," he wrote. "It flies in the face of democratic institutions and the checks and balances that are intended to prevent power-hungry politicians from clinging to control when they do not get their way."
Regulatory reform
One of the hot-button issues in the session was regulatory reform. Among other measures, the Legislature is seeking to undo some of the authority it gave to the governor over rule-making when Walker was elected, and it also is seeking to constrain the use of "guidance documents," or informal interpretations of rules that have been used in place of rule revisions, which have been harder to accomplish under Walker.
Americans for Prosperity-Wisconsin called for passage of the reform items.
"This legislation would be a win for democracy, a win for good government, and a win for the Wisconsin citizen," AFP state director Eric Bott said. "These reforms would strengthen the separation of powers, bolster transparency, and expand legislative oversight by restoring authority to the Legislature - the people most accountable to Wisconsin voters."
But Green Fire, an environmental group composed of many former DNR scientists and bureaucrats, opposed the measures, particularly those pertaining to guidance documents. The group said the legislation would increase workload and costs and hurt performance for state agencies.
The group said the legislation's prescription that guidance documents be posted and published, that they must cite the rule or law upon which they are based, and meet the standards set out in the law within six months or be automatically rescinded was unrealistic.
"We simply do not believe it would be possible for state agencies to comply with this requirement for so many documents on such a broad array of subjects in a six-month period," the group said. "Vacating all pre-existing guidance documents not developed using current standards would have effects on almost every aspect of state government and the work of employees in almost every agency."
The conservative group Wisconsin Institute for Law & Liberty said the guidance document measure was needed, and that other proposed measures were generally good, though it too found what it called a few "head-scratchers."
"Put simply, guidance documents are ways state agencies implement state law without going through the rule-making process," WILL's analysis stated. "Sometimes this is illegal, but even when it is permissible, state agencies too often make it hard for the public to follow what guidance documents have been issued."
The special-session legislation would include a provision that shines a giant light on such documents by requiring them to be published, posted online, and by requiring agencies to take comments from the public, WILL stated.
"Importantly, the bill also makes clear that these guidance documents do not have the force of law and agencies are required to cite to state law or a duly promulgated administrative rule whenever making a statement or interpretation of law in such documents," WILL stated.
Among other good things, WILL stated, was a provision codifying a state Supreme Court decision last year that limits how much deference state agency decisions get.
As for those head-scratchers, WILL says one proposed measure would let agencies cite to federal law in regulations, while current law requires them to cite to state law to justify the writing of a rule.
"However, part of the legislation seems to imply that somehow an agency may be able to draft rules based upon federal law," WILL stated. "That cannot be, as it would confer significant new rule-making powers on state bureaucrats. It would also take power away from state government and transfer it to the federal government."
A provision should be added to the bill that would make clear that no rule-making powers can be conferred by federal law, WILL stated.
WILL also raised a red flag on a provision that would make it easier for bureaucrats to enact emergency rules.
"State law permits agencies to enact emergency regulations in very limited situations - when 'preservation of the public peace, health, safety, or welfare necessitates' them," WILL stated. "That makes sense given that emergency rules, which have the force of law, are subjected to less oversight and hearings than normal rules."
But WILL said it was strange that one provision in the legislation would make it clear that agencies can use a single scope statement to promulgate emergency rules and permanent rules.
"But emergency rules go through a different promulgation process," WILL stated. "Agencies should have to file a separate scope statement when they promulgate emergency rules and permanent rules. Allowing them to use a single scope does not make sense."
Richard Moore
www.richardmoorebooks.com
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