During the Walker administration, we enacted some of the boldest reforms in the nation. Five years later, Wisconsin still ranks second in the nation on the Federalism Scorecard issued by the State Policy Network. Our reforms protected the role of elected officials over unelected bureaucrats and prevented the federal government from exerting undue influence over state policy.
Fueled by grassroots energy and the desire to reform state government, Wisconsin set off on a bold course in 2011. While much attention was focused on the historic Act 10 legislation that wrested bargaining power from public sector unions to the benefit of Wisconsin taxpayers, the Walker administration began working with reform-minded legislators to address the administrative state that for far too long had left state agencies with nearly limitless power to exert policy preferences over the will of the elected Legislature.
First, 2011 Act 21 provided that no agency could implement or enforce any standard, requirement or threshold (including as a term or condition of any license it issued) unless such an action was explicitly required or permitted by statute or rule. Implied or perceived authority would no longer be the norm.
In addition, each proposed rule would require state agencies to submit a “statement of scope” to the governor for his review. An economic impact analysis relating to specific business sectors, public utility ratepayers, local government units and the state’s economy as a whole was also required.
Other important laws followed. 2017 Act 39 required that agencies submit a proposed rule to the Legislature before a scope statement expired, resulting in certainty to the regulated community and a 30-month deadline. 2017 Act 57 was the state version of the REINS Act.
While this is a longtime policy goal of conservatives nationwide, Wisconsin became the first state to enact such a reform (just last month, Kansas became the second). Congress has failed to turn this into a reality at the federal level. Wisconsin agencies must determine whether a proposed rule would impose $10 million or more in implementation and compliance costs over two years. If such a finding is made, an agency is prohibited from promulgating the rule without authorizing legislation or germane modification to reduce the costs below the threshold.
Solidifying the connection to Act 21, Act 57 also required that the Wisconsin Department of Administration review an agency’s scope statement before presentation to the governor. Finally, 2017 Act 108 created an expedited process for the repeal of certain “unauthorized rules.”
On top of these acts, the Wisconsin Supreme Court issued its groundbreaking decision in Tetra Tech v. Wisconsin Department of Revenue. The court’s lead opinion, written by then-Justice Daniel Kelly (appointed to the court by Gov. Scott Walker) ended its “practice of deferring to administrative agencies’ conclusions of law.” The Legislature ultimately codified the new standard in 2017 Act 369.
Combined, these acts and the Tetra Tech decision have unsurprisingly resulted in Wisconsin’s being the state least vulnerable to federal pressure, second only to Utah. It’s critical to recognize that the report looks at internal and external factors.
The report explained: “A state that does not afford its legislature adequate powers of oversight, investigation, and reversal of executive branch actions is therefore incapable of protecting its citizens from a key entry point for federal influence: its own state officials.”
This is a diplomatic way of stating the obvious: If a state legislature can’t exercise oversight over its own executive branch, how could it be expected to resist the creeping tentacles of the federal bureaucracy?
The report's findings are telling and make clear that internal and external controls should receive bipartisan support. Recent history has shown that control of the White House and Congress is in a continuous cycle of change. A “friendly” federal government may be considered an adversary two years later. But this shouldn’t be the case. Whether a state is red, blue or purple, it should ensure that the “will of the people,” best represented by a state legislature, exercises oversight of state executive agencies. And in so doing, it makes it less susceptible to federal intrusion into policymaking.
We must continue to argue that elected officials, not bureaucrats, making decisions at the state and local levels is far better than power centralized in the federal government. Most people would prefer that their taxes be used in their communities — supporting schools, fixing roads, caring for older adults —and not sent to the federal government, where we get back pennies on the dollar.
The latest report from the State Policy Network shows that our administration was a trailblazer in limiting government overreach and empowering Wisconsin's taxpayers. The Wisconsin model charts a path forward for other reform-minded governors and legislatures to follow.
• Scott Walker is president of Young America’s Foundation and served as the 45th governor of Wisconsin. Jake Curtis is general counsel at the Institute for Reforming Government in Delafield, Wisconsin, and previously served as an agency chief legal counsel in the Walker administration.
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