The Milwaukee Post

August 18, 2017

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August 18, 2017 • Milwaukee County Post • 9 OPINION By OWEN B. ROBINSON With all of the news emanating from Madison about the wrangling over the state budget and the Foxconn incentive package, one could be excused for missing the fact that the Legislature passed, and Gov. Scott Walker signed into law, one of the most sig- nificant government reforms since Act 10. The Wisconsin REINS (Regulations from the Executive in Need of Scrutiny) Act is a significant reform for preventing the inex- orable bloating of government. When we all learned about government in Civics 101 — or from "Schoolhouse Rock" — the process seems fairly simple. The Legislature passes a bill and then the executive signs it into law. But that is only part of the process. Laws, as written, are usually written rather broadly. It is then up to the bureaucracy in the executive branch to take that law and put it into action. They do this by interpreting the law and creating all of the detailed rules and regulations to promulgate and enforce it. It is the neces- sary and proper role of the bureaucracy. Throughout the decades, however, as the size and scope of government have grown, so have the bureaucracy and its power. Too many unelected bureau- crats deep in the bowels of state government have taken it upon them- selves to use their regu- latory latitude to advance their own agen- das. Protected as civil servants and relaxed in the knowledge that elected officials come and go as the bureaucra- cy remains, these bureaucrats passed massive and costly reg- ulations with barely a hint of legal author- ity to do so. When the Republicans and Governor Walker swept into power in 2010, one of the first reforms they made was to restrict the power of the bureaucracy with 2011's Act 21. This law narrowed the rule-making authority of state agencies and injected some more oversight by the governor and the Legislature into the rule-making process. It also importantly allowed state rules to be challenged in any of Wisconsin's 72 counties — not just liberal Dane County. The REINS Act is the next advance in moving power away from the bureaucracy and into the hands of elected officials. The REINS Act accomplishes three major reforms. First, the REINS Act increases public input into any proposed rule. The law now requires that an agency get affirmative approval from the governor of a scope statement describing the statutory author- ity for the rule and the impact of the pro- posed rule on people. After approval, either chair of the Legislature's Joint Committee for Review of Administrative Rules may require that the agency open a comment period and hold a public hearing. All public input must then be included in the pub- lished rule analysis. Second, the REINS Act puts up an addi- tional barrier if a proposed rule will cost more than $10 million for people to comply with it. Under the new law, if a proposed rule is projected to cost businesses, local governments, and individuals more than $10 million during a two-year period in compliance costs, then the agency must halt all work on the rule. The only ways for the new rule to then proceed is for the Legislature to enact a bill specifically authorizing the rule or for the rule to be rewritten to bring the compliance costs below $10 million. Third, the REINS Act authorizes the JCRAR to permanently suspend a proposed rule by majority vote if the committee objects to it for a statutory reason. For example, if the committee decides that the agency lacks statutory authority to create the rule, then the committee can stop them from doing so. Of course, the committee can always be overridden by the full Legislature. The growth of government happens in many ways. Some of it happens through big laws debated and passed by the Legislature. But much of it happens deep below the sight line of the public and hid- den from scrutiny in the greasy gears of the bureaucracy. The REINS Act goes a long way toward injecting light and accountability into our state government. Congratulations to Governor Walker and the Legislature for passing this important reform. (Owen B. Robinson is a West Bend resident whose column appears occasionally in The Milwaukee County Post. He can be reached at owen@bootsandsabers.com.) By APRIL BARKER As befits a year in which anything, it seems, can happen, the Wisconsin Supreme Court's public records docket this term was marked by atypical cases. In Voces de la Frontera v. Clarke, the Milwaukee County Sheriff's Department redacted information from immigration detainer forms provided in response to public records requests, asserting that a federal immigration regulation required the redactions. A Milwaukee County judge and the Wisconsin Court of Appeals con- cluded that federal law did not require the redactions, but the Supreme Court dis- agreed. Open government advocates were disap- pointed that the Supreme Court's opinion focused almost exclusively on this inter- pretation of federal law, not the presump- tions of openness enshrined in Wisconsin statutes. In Teague v. Schimel, the court looked at whether the Wisconsin Department of Justice violated individuals' rights by releasing background check materials that sometimes reflected the criminal records of other individuals with the same names and birthdates or that had been used as aliases. Those besmirched by the offenses of oth- ers argued that lives were negatively affect- ed as a result. The Supreme Court agreed that Teague had reason to complain that his cousin's record was released as his. Openness advo- cates anticipate the ruling will not have a broad impact, because the issues it raised had less to do with transparency in govern- ment than allegations that government failed to correct defects in its process. In Democratic Party of Wisconsin v. Wisconsin Department of Justice, the court ruled that the Department of Justice does not have to release videos of training sessions that it argued would give away sensitive information about law enforce- ment techniques. This decision especially disappointed open gov- ernment advocates because of majority author Justice Rebecca Bradley's suggestion that the partisan moti- vation of the requester could be taken into account, contrary to how the law has previ- ously been interpreted. Already, this argument has been invoked in other cases. In Krueger v. Appleton Area School District, the court determined that a school committee formed to review course materi- als was a "governmental body" subject to the Wisconsin open meetings law, rejecting arguments to the contrary. It was a major win for openness and accountability. And then court took a big step backward when it decided to close its own adminis- trative rule meetings, which had previous- ly been public. This result was unexpected and, to open government advocates, dis- maying. In its upcoming term, the court has agreed to hear Madison Teachers Union v. Scott, which stems from a union's request for state records regarding which members had voted during a union recertification vote. The request was denied on grounds that the union would coerce and intimidate employees during the voting process. The state Department of Justice cited Justice Bradley's opinion regarding a requester's motivation in a brief defending this denial. (Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, www.wisfoic. org, a group dedicated to open government. April Barker is the group's covice president. The group filed friend-of-the-court briefs in the cases involving Clarke and the Appleton Area School District.) Wisconsin continues to REIN in government Supreme Court openness rulings a mixed bag Robinson Barker Send your letters to: The Milwaukee Post, c/o Dan Muckelbauer, 3397 S. Howell Ave., Milwaukee, WI 53207, or by email to: dmuck@conleynet.com. We reserve the right to edit letters for style, length and clarity. Letters should be typewritten or printed and include full name, phone number and address. Please keep your letters to no more than 400 words. Letters policy

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