Sunday’s Journal Sentinel featured an article exploring the impact of high-capacity wells on central Wisconsin. A central theme of the piece was the impact of 2011 Wisconsin Act 21, which dramatically changed the administrative rule making process in the state of Wisconsin. If you are not from Wisconsin (and even if you are) you have probably not heard of Act 21. I find that most people tend to tune out when I start talking administrative rules, but 2011 Act 21 is worth discussing, and is relevant to the future relevancy of Public Administration.
Wisconsin Act 21 dramatically shifted power away from Wisconsin bureaucracies and moved it towards the executive branch. To put it another way, it lessened the implementation authority of administrators and increased the implementation authority of politicians…the Governor specifically. The Wisconsin Legislative Council put out a nice memo that fully explains what Act 21 did, but here are the highlights:
- It prevents agencies from making any rules unless it is “explicitly required or explicitly permitted by statute or by rule.” So, an agency can only make a rule if elected officials specifically give them the authority to do so.
- It allows the governor to create executive orders that “prescribe guidelines to ensure that rules are promulgated in compliance” with the legislature.
- It requires the Governor to give written approval of the scope of a proposed rule prior to starting the formal approval process.
- It gives the Governor the power to approve or reject the final draft of the proposed rule.
- And finally: “A statutory or non-statutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the Legislature.”
Collectively, this means an administrative rule cannot exist unless the legislature explicitly tells an agency to make a rule, and the governor approves the rule. It blows up the idea that bureaucratic experts should be in charge of policy implementation. As a professor of Public Administration I find this both fascinating and concerning.
In my early professional days I quickly gained a healthy respect for bureaucrats. They were experts in their field, understood the internal systems needed for successful implementation of policy, and were focused on a single set of issues relevant to their agency and its mission. Administrative rules, which have the force of law, were one of the most important tools in the their toolbox. The rules and rules process ensured expert input, public input and transparency, and furthered the goal of social equity through the consistent implementation of policies.
The premise of Act 21 is that unelected bureaucrats were using the rules process to undermine legislative intent, thus subverting the will of the voters. Was this happening? It was not my experience, and I doubt it, but I really cannot say for sure. The reality is that Act 21 is on the books (for all agencies except the Department of Public Instruction) and I am most interested in, and worried about, the consequences.
I expect Act 21 to decrease the number of administrative rules. Though this may mean less red tape, it could also lead to confusion and vagueness from the perspective of both regulators and the regulated. If I am a business or citizen trying to comply with the law, vagueness is problematic. Clear guidelines via an administrative rule gives citizens confidence that they are following regulatory requirements, and that those requirements are being applied uniformly. I also expect that approved rules will reflect the implementation preferences of elected officials rather than bureaucracies. Given that bureaucracies are the one’s actually implementing policies, cutting them out of the process can mean inefficiency, and lower levels of customer service. Why? Bureaucrats will spend their time and energy complying with directives that may not reflect their existing processes and systems. Remember, agencies are permanent, legislators are not.
Like I said, I find these changes troubling. The declining influence of bureaucracies in the policy formation process (see my last post) and the implementation process will, in my opinion, negatively impact the performance of our state government.