Wisconsin Needs a Moratorium on ‘Non-Essential’ Regulations

Lucas Vebber

The Governor has taken some important steps to grant regulatory relief to individuals in Wisconsin working to stem the Coronavirus tide, and he certainly deserves credit for taking those important steps. However, more needs to be done to ensure regulatory certainty for Wisconsinites as long as this health emergency is in place. The governor declared a moratorium on all “non-essential” businesses, and it’s time for him to declare a moratorium on all “non-essential” bureaucratic rulemaking orders as well.

On April 1st, 16 brand new agency regulations became effective. Over the last three weeks while the health emergency raged on, bureaucrats started work on 10 new regulations, noticed 11 public hearings on rulemaking proceedings, sent 5 proposed new regulations to the legislature, and finished work on and sought to publish 11 new regulations. Over that same time, agencies continued to issue a number of new sub-regulatory “guidance” documents as well.[1]

Certainly not all of those rulemaking proceedings cause uncertainty or should be stopped. Any rulemaking necessary to implement regulatory relief or to assist during the emergency must continue, and some of the work done over the past three weeks have been for that purpose — the same goes for agency guidance. However any “non-essential” rules need to be sidelined for now.

For example, bureaucrats published an entirely new licensing scheme for “real estate appraisal management companies.”[2] That rule has been in the works for almost two years, did we really need to wait until the middle of a healthcare emergency to publish it? I am willing to make the bold prediction that our state would survive just fine without it for another month or two without this new license. This week, DATCP announced a 20% across the board fee increase on labs that test food, water and milk.[3] Their rationale? The fees had not been increased since 2008, so it was time to raise them. Why on earth would anyone think this is a good idea in the middle of the current emergency?

There are other reasons why Wisconsin should press “pause” on all non-essential regulatory changes. Mainly, the lack of transparency and oversight. As Wisconsinites worry about their families and ensuring they can put food on the table, they should not also be expected to maintain a robust oversight over an ever-growing regulatory behemoth.

When agencies engage in rulemaking they are essentially writing laws. We have generally come to accept the fact that non-elected bureaucrats may write these laws because of the significant oversight that applies to the process. The public and the legislature are able to follow along and weigh in on the rulemaking process. Given the current public health emergency, it is safe to say that effective oversight has necessarily decreased.

When state agencies want to change or create a regulation, they first must prepare what’s called a “scope statement.” A scope statement is essentially a roadmap to the rulemaking — it includes an objective of the rule, a summary of the statutory authority, time estimates, entities who could be impacted by the rule, and more. Before they do any work on the rule, they have to get the scope statement approved by the Governor. While the Governor should immediately direct agencies to stop work on all rules, the Governor should also commit to not approving any “non-essential” rulemaking until the health crisis is over.

To the extent that the Governor is unwilling to grant this regulatory certainty to Wisconsinites, then the legislature’s Joint Committee for Review of Administrative Rules (JCRAR) should step in. Rulemaking is inherently a legislative function (it is lawmaking, after all), and when executive branch agencies are engaging in it, it is subject to robust legislative oversight. The legislature largely exercises that oversight through JCRAR, which has the ability to suspend rules and hold up rulemaking proceedings. They should make it clear that “non-essential” rules can and must wait until the health emergency is over.

Yes, we are all safer at home. But let’s stop making it harder for those workers who are struggling to keep our economy going.

[1] The numbers used in this paragraph were calculated from published administrative rulemaking notices in Wisconsin Administrative Registers 771A4, 771B, and 772A1, which can be found online at: https://docs.legis.wisconsin.gov/code/register/2020

[2] Clearinghouse Rule 18–102, available at: https://docs.legis.wisconsin.gov/code/chr/all/cr_18_102

[3] Clearinghouse Rule 19–076, available at: https://docs.legis.wisconsin.gov/code/chr/all/cr_19_076