Rulemaking in Wisconsin

Over the years, the state’s responsibilities have become more complex. Policy making power that used to belong solely to the legislature has been shared with state agencies to an ever-expanding degree. The legislature provides authority and oversight while the technical expertise of the agencies is relied upon to implement the legislature’s policy goals. Although this power-sharing scheme is a cornerstone of modern governance, it is not without its peril.

Today, state agencies have significant power over Wisconsin citizens, landowners, and businesses. Surveys of businesses consistently cite regulatory burdens as one of the main limitations on job growth. Gov. Scott Walker recognized this when he took office and enacted legislation aimed at reforming Wisconsin’s rulemaking process to ensure greater agency oversight and accountability, 2011 Wis. Act 21. Now that Act 21 is in effect, GLLF is working to ensure that the law is fully and properly implemented.

Regulation Nation: The Wisconsin Perspective

The Foundation's Regulation Nation: The Wisconsin Perspective series of reports will provide an analysis of the legal underpinnings of Wisconsin’s often debilitating regulatory regime. This legal framework, predominantly founded in Wisconsin Statutes Chapter 227 (Administrative Procedure and Review), has undergone sweeping changes in recent years, from 2003 Wis. Act 118 to last session’s 2011 Wis. Act 21. Our series highlights these and other regulatory reforms that are frequently ignored by Wisconsin agencies.

What is a Rule? - We start, necessarily, at the beginning, with a report on What is a Rule? The report explores the legal definition of “rule” under Wisconsin’s rulemaking process and discusses why that definition is important. The report explains that if an agency policy has the effect of a rule, then it must go through the proper rulemaking process, which includes public hearings, along with legislative and gubernatorial oversight. The report provides examples of state agencies attempting to avoid the rulemaking process by labeling a rule as “guidance,” which in turn deprives the public of their due process rights. The report concludes with a discussion of various legal avenues available to the public when an agency has acted outside of the rulemaking process. (PDF) (HTML)