Observing the Law of Rule
By Christian Schneider
The summer of my twelfth year, my father dictated to me my summer job: I was going to have to paint the picket fence around our backyard. I had never painted anything before, so I punished him by peppering him with inane questions. “Where do I start?” “What size brush should I use?” And so on. “I don’t care how you do it – just get it done!” he snapped. At least that’s what I think he said, as my ears were ringing from the accompanying smack upside my head.
As it turns out, state law very much follows “dad law.” When the legislature passes a law and the governor signs it, it constitutes a directive – “paint the fence.” But in many cases, it leaves the minute details up to the state department that will be carrying out the broad new law – “just get it done.” Departments accomplish the “I don’t care how you do it” part by passing “rules,” which reside comfortably in legal purgatory, somewhere between real laws and complete anarchy.
In many cases, the Legislature leaves their newly passed statutes overly broad, to avoid codifying every little detail in state law. For instance, state law dictates what crimes will land you in jail. Rules determine what kind of nudie magazines you will be allowed to view when you’re in the joint. Rules govern everything from how big a pier you can have on your house to what classes your barber has to take to obtain a license, including – and this is not a joke – 35 “theory hours” of “Shaving, beard and mustache shaping and trimming.” Who can forget Aristotle’s treatise on mustache waxing?
Yet rules, while having the force of law, are passed in a peculiar way that circumvents the traditional legislative process – and opens the door for hijinks. Rules changes are drafted by a department, then sent to standing legislative committees, who may then object to the rule if they believe it to be a bad idea. If it draws an objection, the rule goes to the Joint Rules Committee, where it can be suspended. However, if it is suspended, the committee must introduce bills changing the law to remedy their percieved problem with the rule. If those bills do not pass, the rule goes into effect – without ever having been altered by the legislature.
Thus, in effect, rules are like laws in reverse. Whereas passing a new law requires a bill proactively passing through both houses and being signed by the governor, rules essentially start as law and require bipartisanship to invalidate them. Thus, in the case of a split Legislature, one party can always block an objection to a rule made by their party’s governor.
This has become increasingly problematic in recent years, when departments are taking more liberties with their rulemaking authority. Instead of merely carrying out the directives given them by state law, some departments are granting themselves entirely new lawmaking ability, knowing that a split legislature will likely pave the way.
For instance, the Wisconsin Government Accountability Board has voted to promulgate a rule that grants their members the sole legal authority to regulate campaign advertising during election season. While the law creating the GAB merely charges them with enforcing current election law, they have decided to settle this contentious issue that has confounded the U.S. Supreme Court for decades by merely making up their own law. This isn’t painting the fence – this is building a whole new picket fence that runs right through our living room.
Other rulemaking attempts have been equally as brazen. In 2005, Governor Jim Doyle actually attempted to raise the state’s minimum wage via administrative rule, knowing that he could simply veto any bill passed by Republicans if they attempted to object to the change. The State Supreme Court is attempting to use the rules process to wrestle legislative redistricting away from the Legislature, which clearly usurps legislative authority to set its own Senate and Assembly districts. Recently, the Supreme Court enacted a rule that changes the instances when tribal courts have jurisdiction over non-tribal members, which will have the effect of denying many litigants their right to a trial by a Wisconsin court. In a blistering dissent, Justice Patience Roggensack observed the new rule “undermines federal and state constitutional and statutory rights of litigants.”
New laws are the bright, shiny new baubles on which we all like to gaze. Enacting them takes all the elements of a good political novel – intrigue, secret deals, undue influence, and bloated, self-important speeches on the legislative floor. On the other hand, administrative rules have all the sexiness of Jim Doyle in spandex bike pants. In fact, in contrast to laws, rules only actually pass when nobody thinks to publicize them. But like Doyle’s bike pants, the rulemaking process is beginning to expand beyond the limit set by law (and good taste.) Maybe these bureaucrats need my dad to smack them in the head with a paintbrush.
-March 23, 2009