{"id":17617,"date":"2025-10-09T22:09:25","date_gmt":"2025-10-09T22:09:25","guid":{"rendered":"https:\/\/wifamily.news\/?p=17617"},"modified":"2025-10-09T22:58:53","modified_gmt":"2025-10-09T22:58:53","slug":"fixing-regulatory-rampage-will-require-amendment-say-observers","status":"publish","type":"post","link":"https:\/\/wifamily.news\/?p=17617","title":{"rendered":"Fixing regulatory rampage will require amendment, say observers"},"content":{"rendered":"

This post originally appeared at https:\/\/www.badgerinstitute.org\/fixing-regulatory-rampage-will-require-amendment-say-observers\/<\/a><\/p>\n

But reforms via statute might help Wisconsin avoid a still more onerous environment<\/em><\/h4>\n

Fixing the damage wreaked by the Wisconsin Supreme Court when it stripped the Legislature of its power to halt bureaucrats\u2019 regulations will take a constitutional amendment, say legal experts \u2014 though reforms in statute can help in the interim.<\/p>\n

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That damage so far includes a rush of new regulations, including a 1,700 percent increase in state fees<\/a> on livestock auctions and a complex,\u00a0expensive wholesale revision of the state\u2019s commercial building code<\/a>.<\/p>\n

Lawmakers on the Joint Committee for Review of Administrative Rules had the ability to delay or block such regulations until the Supreme Court ruled 4-3 in July to strip JCRAR of its authority.\u00a0The bureaucracy may now propose, promulgate and enforce a regulation with only the governor\u2019s say-so.<\/p>\n

\u201cFixing this is going to require a constitutional amendment, because the Supreme Court declared the current procedure to be unconstitutional,\u201d said Dan Kelly, a former state Supreme Court justice who has done legal policy analysis on the issue for the Badger Institute.<\/p>\n

\u201cIt\u2019s not just that it conflicted with another statute, which is a problem that could be fixed statutorily. They said it\u2019s unconstitutional. So it\u2019s going to require a constitutional amendment to fix it.\u201d<\/p>\n

Constitutional amendments take time, however \u2014 two successive legislative sessions and a referendum \u2014 and new rules and regulations are already being written.<\/p>\n

Wisconsin already ranks as one of the most heavily regulated states, enduring the second highest number of regulatory restrictions<\/a> of all states in the Midwest, according to Patrick McLaughlin, a regulatory economist with the Hoover Institution. The Badger State has a worse regulatory environment than every one of Wisconsin\u2019s neighbors but for Illinois, considerably more restrictive than even Minnesota, he told a Capitol gathering of lawmakers and policy staff in Madison this week.<\/p>\n

Cutting Wisconsin\u2019s regulatory burden to something more like even Minnesota\u2019s could add considerably to our economic growth. McLaughlin estimates a one-third cut in regulatory burden adds about a percentage point to the growth rate because for businesses, \u201cEvery dollar or minute spent on regulatory compliance is a dollar or minute not spent on making stuff or investing in growth.\u201d<\/p>\n

McLaughlin spoke as legislators are considering a package of four bills to check regulators\u2019 powers.<\/p>\n

One, a \u201csunset review\u201d bill<\/a>, would have a regulation expire after seven years unless the Legislature\u2019s oversight committee assents to extending it for another seven years.<\/p>\n

Another would have the state reimburse legal costs for a citizen<\/a> who successfully challenges the validity of a regulation in court.<\/p>\n

A third limits regulators to one new regulation<\/a> per \u201cscope statement,\u201d the public document that serves as a warning to those who might be affected.<\/p>\n

A fourth imposes a \u201cregulatory budgeting\u201d system<\/a> on bureaucrats, requiring that agencies offset the expected costs a rule would impose on the public by repealing or changing existing regulations, or getting legislative approval to impose the rule.<\/p>\n

\u201cWe want to grow the size of Wisconsin\u2019s economy \u2014 not its rulebook,\u201d said Sen. Julian Bradley (R-New Berlin), when the bills were introduced<\/a> last spring.\u202fThe package got a hearing<\/a> in the Assembly on Thursday. But if it passes the Legislature, it still faces Gov. Tony Evers, whose lawsuit against legislative oversight led to the Supreme Court case<\/a>, dubbed Marklein II, that ended it.<\/p>\n

That\u2019s why such reforms aren\u2019t enough on their own, said Kelly.<\/p>\n

\u201cI think they\u2019re bandages,\u201d he said.<\/p>\n

\u201cBandages serve a purpose \u2014 and an important one. They stop you from bleeding, getting infected, so I would not denigrate any of those ideas as being not useful, as long as they\u2019re understood as being bandages. They do have the possibility of distraction, because if you pass them, then people might say, yeah, okay, we\u2019ve fixed it. And now we can go back to business as usual.\u201d<\/p>\n

\u201cThe problem is a bandage is meant to be a temporary fix. It\u2019s not a long-term cure.\u201d<\/p>\n

There are a variety of\u00a0 potential amendments ranging from a straightforward declaration that pre-Marklein II process is, in fact, constitutional, to a simpler but far-reaching shift to requiring legislative approval for every regulatory proposal the executive branch makes.<\/p>\n

Such an amendment would address a critique by dissenting justices in Marklein II that regulators are imposing what Wisconsinites must obey as law without the concurrence of two branches of government that laws require. But observers suggest it might be a lot for lawmakers and voters to adjust to as it overturns a century of regulatory growth.<\/p>\n

No one pathway has solidified into an introduced proposal yet, and while an amendment would be immune to a governor\u2019s opposition \u2014 the governor has no role in Wisconsin\u2019s amendment process \u2014 any amendment would face headwinds.<\/p>\n

One is the criticism that legislators move too slowly, or not at all, on rules needed in a complicated and evolving society.<\/p>\n

But supporters of limits on regulatory agencies point out that legislatures can move more swiftly than regulators\u2019 rulemaking process to enact laws for which there is a broad popular consensus.<\/p>\n

Another headwind: Growth in the power of regulators has come because legislators, in states and federally, have outsourced the details and hard choices of implementation of laws to bureaucracies as a way of avoiding voter backlash.<\/p>\n

Legislative oversight is not only a matter of power but of responsibility, said Kelly: \u201cThe problem here is that we are allowing legislators to shuck off their responsibility to be exercised by people who are not democratically accountable.\u201d<\/p>\n

Patrick McIlheran is the Director of Policy at the Badger Institute.<\/em>\u00a0<\/p>\n

Any<\/em>\u202f<\/em>use or reproduction of Badger Institute articles or photographs requires prior written<\/em>\u202f<\/em>permission.<\/em>\u202f<\/em>To request permission to post articles on a website or print copies for distribution, contact Badger Institute Marketing Director Matt Erdman at<\/em>\u202f<\/em>matt@badgerinstitute.org<\/em><\/a>.<\/em><\/p>\n

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