River News: Our View

There has been no shortage of news stories in recent weeks about the coming November elections and the battle for control of the Wisconsin Legislature.

Republicans are fighting to hold the Assembly. Democrats are making an all-out push to flip the Senate. It’s a good bet right now that each party will succeed.

But here is an inconvenient truth that isn’t being articulated. In the areas of government that most directly affect people’s daily lives, it’s not going to make much of a difference who controls the Legislature.

In one not-so-narrow sense, it really doesn’t matter a spit who wins. And no, we are not saying the parties are two peas in a pod. They couldn’t be more different, or hardly so.

Neither is this an argument against voting. Rather, it makes voting more important for several reasons we will dive into in a second.

First and immediately, though, we are making an argument about power — where it resides, and how far it has drifted from the people who are supposed to have it. That is, it’s not going to make an immediate difference who wins because, these days, the legislature is not really the legislature. At least not where it counts. They don’t make the state’s laws we must follow.

That job has fallen instead to the bureaucratic leviathan inside the executive branch. They make the actual laws, otherwise known as administrative rules, that impact our daily lives.

Oh sure, the Legislature, as designed by the Wisconsin Constitution, is the lawmaking branch of government. It is where statutes are proposed, debated, amended, passed, and sent to the governor. But in reality, it is not where many of the most serious rules binding us are approved.

Instead, those rules are written in the seedy cubicles of state agencies, after secret meetings with special-interest “stakeholders.” They are composed by a vast administrative state — unelected agencies staffed by permanent bureaucrats who promulgate rules carrying the full force of law. These rules govern everything from land use and environmental regulation to licensing, agriculture, building standards, and business compliance. They affect farmers and contractors, homeowners and school teachers and manufacturers.

And, after a 4-3 decision last year by the Wisconsin Supreme Court, the Legislature has been largely stripped of its ability to meaningfully oversee those laws-hiding-as-rules, or to overturn them when they do not meet the intent of the elected representatives of the people.

For years, when state agencies proposed rules that exceeded statutory authority or plainly violated legislative intent, the Legislature had tools to respond. Through the Joint Committee for the Review of Administrative Rules (JCRAR), lawmakers could indefinitely object to a proposed rule, preventing its promulgation unless and until the Legislature passed — and the governor signed — a bill authorizing the rule to take effect.

That safeguard has been nuked.

In Evers v. Marklein II, a narrow majority of the Wisconsin Supreme Court ruled that legislative suspension or indefinite objection of administrative rules violates the constitutional requirements of bicameralism and presentment. In other words, the court held that legislators cannot stop unelected agencies from exercising delegated legislative power unless they pass a new law — signed by the governor — to do so.

It is a subversion of democracy, a coup d’etat of the constitution. The Legislature may delegate broad authority to agencies to write binding rules, but it may no longer check how that authority is exercised unless it can overcome the very executive branch whose agencies are writing the rules in the first place.

That is not a balance of powers. It is a consolidation of power in the hands of unelected officials.

Over time, the Legislature is largely to blame for this mess. Both parties have spent decades passing statutes that hand agencies sweeping authority to interpret and implement laws — to fill in the gaps in the statutes, as it were — often without any boundaries at all.

The Supreme Court’s ruling removed the only corrective mechanisms that existed to rein in that overreach. The administrative state is now free to exact its reign of terror through legislative rulemaking, insulated from elected oversight.

This is why election-year rhetoric about legislative control rings hollow. When legislative power resides with unelected agencies under the guise of regulation, and judicial doctrine shields those agencies from democratic intervention, elections alone cannot restore accountability. No matter who controls the legislature next year, the bureaucracy is the seat of legislative power.

Unless, that is, a couple of things happen, which brings us back to the voters and goes to the heart of why every one of us needs to vote in November. That is, we can and must elect a governor willing to assert control over the bureaucracy rather than act as its protector. 

In other words, it may not matter who controls the legislature, but it sure matters who is governor. Governors appoint agency heads. They control rulemaking priorities and can stop the most egregious bureaucratic endeavors. Not least, a conservative governor won’t encourage or propose leftist rules that consolidate authoritarian power.

Governors can slow, stop, or reverse regulatory overreach. Even then, civil service protections and entrenched agency culture will ensure resistance. Bureaucracies are designed to persist, after all. As they say, elected officials come and go; unelected bureaucrats, like diamonds, are forever.

At least a governor who respects legislative intent and constitutional limits can keep the bureaucracy in its lane until the cavalry arrives. That cavalry is a more durable remedy of constitutional and statutory reform.

Last week, Rep. Brent Jacobson (R-Mosinee) introduced a package of proposals to restore legislative oversight of administrative rulemaking. The legislation emerged from the Speaker’s Task Force on Rulemaking, which held public hearings around the state and heard diverse testimony. These measures would both restore a basic check on executive rulemaking and reassert the legislature’s role as the state’s only lawmaking body.

In public hearings, as Jacobson reported, the people sent a consistent and loud message: People will not accept living under rules imposed by agencies that do not answer to them. Jacobson correctly said his proposed amendments would restore the Legislature’s ability to undo regulations that impose high costs or compliance burdens on Wisconsinites.

Specifically, one proposal would amend the Wisconsin Constitution to explicitly allow the Legislature to temporarily or permanently suspend administrative rules by joint resolution. 

To be sure, constitutional amendments are not quick fixes. They must pass two consecutive legislatures before going to the voters for approval. That’s why voting this year is also important — if Democrats take either chamber of the legislature, the amendment proposal is doomed.

Another proposal would repeal a broad statutory grant of power allowing agencies to promulgate rules interpreting statutes even when the Legislature did not explicitly authorize rulemaking. In its place would be a requirement that agencies point to clear, specific statutory authority before issuing binding regulations. That would ensure that agency regulations do not exceed what was intended by state law.

These reforms do not eliminate rulemaking but place it back within its limited jurisdiction. 

Critics argue that these proposals are “far right,” whatever that means, but concentration of regulatory power in the executive branch should concern anyone who believes in representative government — regardless of party or ideology.

Progressives often warn against “kings” and “authoritarianism,” yet remain curiously silent when power flows to unelected bureaucrats insulated from democratic checks. Conservatives, for their part, should remember that a bureaucracy empowered today will remain empowered tomorrow, regardless of who occupies the governor’s office or controls the Assembly.

Unchecked power is never neutral. It always ends up serving someone, namely those who possess the power.

Neither are administrative rules abstract. They can and have ruined lives. They determine whether land can be used, businesses can expand, projects can proceed, and livelihoods can survive. When those decisions are made by agencies with minimal oversight, consent of the governed becomes wishful thinking.

If elections are to matter again, the Legislature must reclaim its role — not through performative positioning, but through structural reform. Restoring legislative oversight of rulemaking is about accountability, and these proposals would guarantee that.

They would guarantee that there would be no kings in Wisconsin. Not in the courts and certainly not in the bureaucracy.

Unless voters and lawmakers act to restore constitutional balance, we may find ourselves governed by rulers we never elected. That is a future worth preventing, before the reign of the regulatory kingdom becomes permanent, and likewise the serfdom it rules.