“Righting the Rules” Could Start with a Legislative Rule if Lawmakers Approve SJR 5

For 12 years, the Wisconsin Legislature has been operating under a rule that ignores a statutory change enacted in 2001. The law requiring bills to have fiscal estimates was changed at that time to eliminate the exemption for bills relating to criminal penalties; however, the Legislature has never implemented that change. As a result, legislators sometimes debate and approve bills that could have very substantial future costs – without careful legislative and public debate about whether the benefits justify the price tag for increased incarceration.

A Senate Joint Resolution (SJR 5) would make the Legislature’s Joint Rules (specifically Joint Rule 41) consistent with the statutes relating to fiscal estimates. SJR 5, which was introduced by Senator Taylor, was unanimously endorsed this week by the Senate Committee on Government Operations, Public Works, and Telecommunications. The long overdue action to amend this legislative rule is timely because the Legislature has embarked on a process to review all agency rules.  I have mixed feelings about that undertaking, which Republican leaders are calling “righting the rules.” On the one hand, I think legislative oversight of executive branch regulations can be positive, particularly to ensure that the rules are consistent with the legislative intent.  On the other hand, I worry that the very broad effort to rapidly review much of the Administrative Code could be less deliberative and transparent than the usual rulemaking process. The current effort could give large campaign donors a golden opportunity to reshape regulations they don’t like, but at this point I think it’s too soon to judge the “righting the rules” process.

One of the aims of any policy-making process – whether it’s in the legislative or executive branch – should be openness and public involvement. Whether that goal is advanced by the new endeavor to review so many rules is debatable, but transparency is definitely increased by requiring fiscal estimates to be prepared for bills expected to affect state or local spending.

Another reason that SJR 5 is timely is that there is growing bipartisan sentiment in Wisconsin and elsewhere to reduce spending on the corrections system. Read more about that trend in a recent Budget Project Blog post by Tamarine Cornelius, and see also the editorial in last Sunday’s NY Times, Shrinking Prisons, Saving Billions.

Approval of SJR 5 would finally help legislators make more informed decisions about legislation relating to criminal penalties, and it would shield legislators from criticism that they are unwilling to follow the statutes and “right” their own rules.

Jon Peacock