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Administrative Rule-Making Needs More Examination From Wisconsin Legislature

August 7, 2016

Without doubt this will be the least sexy blog post of the week.  After all, how many people will be sitting over dinner lamenting the lack of accountability in the administrative rule-making process in Wisconsin? But I can not over-state how important the topic is for the people of this state.  The process of government may not in and of itself make headlines, but the consequences of not achieving the highest standards in that process does make for unwelcome news.

The messy outcome over manure spreading regulations by the Department of Natural Resources is proof that a flawed process will deliver harm to the citizens of our state.  In what many have found to be simply stunning the DNR scaled back proposed rules regulating factory farms’ manure spreading amid complaints from the dairy industry.

I know something about the rule process as I had experience in the early 1990’s as an Administrative Research Assistant and Committee Clerk for a co-chairperson of JCRAR (Joint Committer for Review of Administrative Rules).   I also know how the residents of Kewaunee County who have fouled drinking water from large farms must be feeling.  After all, Representative Lary Swoboda came from that county and we worked to meet the needs of the First Assembly District.  Swoboda would be livid with the recent DNR action!

Administrative rules have the power of law, and are made to insure that signed legislation has the ‘nuts and bolts’ to function properly. For decades there was a very consistent manner for the formulation and review of rules allowing for both state agencies and the public to have input and time-lines in order to address concerns and mold a workable final result.  State agencies had fine and skilled employees with background and expertise in a wide range of fields to provide common sense rules that would allow for policies passed by the legislature to be implemented.

In 2011 the state legislature reworked how the promulgation of administrative rules would occur, allowing for a governor to have much sway in the final product.  We are now witnessing problems with that process.

One of the parts of the 2011 change allowed for broad summaries of agency proposals for regulations, known as scope statements, to be signed off by the governor.    That sign-off needs to now happen before an agency can start drawing up the rules.  I have always opposed power-plays by any governor, including my own party, when Jim Doyle did not return the naming of the DNR Secretary to the board.  It is in that line of thinking I much opposed giving Governor Walker too much control of the rules process,  knowing it was a wrong-headed move.

In fact, the 2011 law features an 18-step, multi-year process that basically starts and ends in the governor’s office, and is weighted too heavily for the economic whims of special interests.  As we have seen from the manure issue the needs of average folks who want to have clean drinking water have taken a backseat to the needs of large corporate farms.  To top it all off the Walker Administration over the years has also insisted the DNR streamline its review process so it won’t take so long to let companies pump groundwater, or develop wetlands.

By allowing the governor to have a  scope statement sign-off means the partisan motives are very much in play and the experts in the agencies take a minor role to campaign contributors and the political needs of those in power.  It is a dreadful way to draft administrative rules.

True conservative Republicans–in the mold of Tommy Thompson in his famed days as the  GOP minority leader–should stand up to Walker and demand more accountability in the rule-making process.

This debate about administrative rule-making must not be a partisan fight.  Instead we need to be of one mind about the need for good government.  There should be no room for light between the parties when it comes to the way the rule making process needs to work in state government.

There are always political battles to be fought.  But should not the process of government be left above the fray and outside of the skirmish lines?  Should not the larger framework of the process of government supersede the internal disputes we have as members of competing parties debating policy ideas?

As I said at the start this is not sexy.

But as the recent headlines prove what I write is definitely not irrelevant.

  1. August 7, 2016 11:19 PM


    Thanks for your public service to this state.

  2. Mark E. Bye permalink
    August 7, 2016 10:51 PM

    No. Not sexy, but a crucial component of good governance. I speak from experience as I played a part in the re-write of the Administrative Rules for youth committed to the Department of Corrections back in the early 2000’s.

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