There are a lot of weighty issues on the line for Wednesday’s Wisconsin Supreme Court hearings on lame-duck legislation: Medicaid work requirements, early voting restrictions, whether legislative leaders can convene a legislative session to constrain the power of a newly elected governor.
But one law passed during that hastily convened session last fall that is not getting a lot of attention threatens to tie the state’s regulatory processes up in red tape.
What the heck are "guidance documents"?
When Republican lawmakers convened in December to restrict the powers of the Democratic governor and attorney general, they voted to require state agencies to review their entire library of “guidance” documents, which tell regulated businesses how to comply with state agency rules.
According to a court brief filed earlier this month, there are at least 200,000 documents that can be defined as guidance documents. All of them would have to have public hearings and be subjected to other administrative standards or be rescinded.
Republicans say those documents are too often used to subvert the rule-making process, which is more stringent than the creation of guidance documents. With the lame-duck law, Republicans raised the bar, requiring each guidance document to receive a public hearing within six months and undergo certification by agency heads. The documents also have to be reviewed by the Legislative Reference Bureau and placed in the Administrative Register, a process that critics say will overwhelm the bureau.
Because of the haste of the lame-duck session, no financial estimate was ever made, but agencies put that cost well into the millions.
The magnitude of the task of conducting public hearings on hundreds of thousands of documents will cripple agencies and create regulatory uncertainty. But that point was never made during legislative hearings because the lame-duck process was fast-tracked.
What's the argument against the new guidance document policy?
The laws passed during the extraordinary session are being challenged by a group led by League of Women Voters. But other groups not affiliated with the plaintiffs are weighing in.
Robert Lee, a Midwest Environmental Advocates attorney, filed a brief concerning guidance documents on May 3 on behalf of the Sustain Rural Wisconsin Network, the River Alliance of Wisconsin, Friends of the Lower Wisconsin Riverway and Milwaukee Riverkeeper.
In it, he said the public never had the chance to weigh in on the law because the lame-duck session was fast-tracked.
“Such meaningful participation was effectively denied during the December 2018 extraordinary session, which was convened on a single business day’s notice and resulted in ill-considered, impractical, and costly legislation that will have adverse impacts throughout the state,” he wrote.
Some contend that hamstringing the state’s regulatory processes was the objective of the guidance document legislation.
“It’s really just designed to make it much harder for government — and the executive in particular under Gov. Evers — to function,” said state Rep. Chris Taylor, D-Madison.
Not only will the law “hamstring” agencies like the Department of Natural Resources and the Department of Health Services, both of which maintain thousands of guidance documents, but it will also strain the Legislative Reference Bureau, which has to process them, Taylor said.
The definition of a guidance document is broad, ranging from handbooks to personal communications.
“An email could be considered a guidance document,” she said.
Many of the documents contain instructions for filling out complex permit applications.
What are the arguments in favor of the legislation?
Republicans say the measure ensures that rules that affect the public get public scrutiny.
A request for comment from Assembly Speaker Robin Vos’ office went unanswered. Sen. Tom Tiffany, R-Hazelhurst, a consistent critic of Department of Natural Resources regulatory efforts, told NPR during the session, “I think that’s a really good thing for transparency in government in the state of Wisconsin.”
Cory Fish, an attorney with Wisconsin Manufacturers and Commerce who filed an amicus brief supporting the lame-duck laws, offered up three examples where “guidance documents have been used to expand agency regulatory authority rather than simply explain the authority an agency already has.”
One is a “Medicaid Provider Handbook” issued by the Department of Health Services. The handbook is currently the subject of a lawsuit in which dozens of nurses are contesting the department’s demand that they return Medicaid payments because they didn’t comply with record-keeping requirements.
The second is a lawsuit filed by WMC over the state Department of Revenue’s decision to remove a manufacturer’s property tax exemption for machinery not used in manufacturing, resulting in a $42 million tax increase for manufacturers. The change was an interpretation of a law that did not go through the rule-making process.
The third involves the Department of Natural Resources, which some say is the real target of the legislation. The DNR now voluntarily submits new guidance documents to a public review process, Fish noted. In this case, WMC, developers, builders, realtors and farmers are challenging a DNR guidance document that delineates and screens wetlands during the permitting process.
What will happen if the law is upheld?
In his brief, Lee said that subjecting all guidance documents to a public review process, getting them certified and getting them placed in the Administrative Register before the six-month deadline, originally slated for July 1, would be impossible.
“Agencies simply do not have the resources to meet these requirements before the July 1 deadline,” he wrote. “As a result, agencies are faced with a difficult decision: either divert resources and staff to save a fraction of their existing guidance documents or allow all of their existing guidance documents to be rescinded. Regardless, thousands of important documents will be invalidated, which will adversely impact agencies’ ability to fulfill their responsibilities.”
The elimination of some guidance documents and the diversion of personnel from regulatory efforts to salvaging others will also hamper the DNR’s efforts to regulate large factory farms and uphold environmental standards for the state’s waterways, he wrote. And it will also lead to more litigation as advocates try to force the DNR to do its job. Adding to the volume of court cases will be the lack of clarity in the law over what exactly constitutes a guidance document.
But it’s all a moot point if the justices determine that the entire lame-duck session was unconstitutional.
That’s what University of Wisconsin law professor Robert Yablon and 13 other state and constitutional scholars contend in a brief filed with the Supreme Court earlier this month.
According to those experts, the state Constitution makes no allowance for lawmakers to convene a legislative session like the extraordinary session that took place last year.
“The Constitution has never licensed the Legislature to convene at whim, precisely because, from the beginning, Wisconsinites knew the dangers of irregular lawmaking,” the professors wrote.
Only the governor, they contend, has the constitutional power to call the Legislature into session, but Walker didn’t call the extraordinary session. Lawmakers did.
Other states, they note, have amended their constitutions to confer that right. Thirty now allow legislatures to self-convene, but not Wisconsin.
“No other state handles extraordinary sessions this way, and no court has ever endorsed a convening practice akin to the one here,” the professors wrote. “Ultimately, the most extraordinary thing about the Extraordinary Session is that it happened at all.”