Research
December 13, 2024 | By Richard Moore
Policy Issues
Accountable Government

Wisconsin's Collectivist Bureaucracy: Part I

Both in Wisconsin and across the nation, a bureaucratic Colossus now wields and exercises unprecedented power, often ruthlessly. The administrative state has imposed more than 165,000 restrictions on everyday life in the Badger state, and bureaucrats are adding 3.4 new restrictions every day.


Part I: Wisconsin’s State Bureaucracy Exercises Unparalleled Power



  

The Creature From Swamp Island

Testifying before a congressional hearing in 2013, Georgetown University law professor Jonathan Turley issued a stark warning to lawmakers about the rise of the administrative state under President Barack Obama, a warning made all the more significant by the fact that Turley had voted for Obama.

What was unfolding, Turley warned, was the rise of a fourth branch of government, a web of interlocking bureaucratic agencies fundamentally transforming the nation into something vastly different from the intentions of the Framers:

We are shifting from a tripartite to a quadripartite system in this age of regulation, Turley said, pointing to the rise of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. In other words, Turley said with more than a little urgency, the administrative state was shifting the center of gravity in the American system to a fourth branch of government.

He was talking about the rise of a collectivist bureaucracy, and, alarmingly, that bureaucratic power has grown exponentially since 2013. Just as important, though Turley did not delve into it then, bureaucratic centralization has grown just as much in the various states, forming parallel and increasingly integrated and unelected state governments.

If there’s one key take-away from the last century in U.S. politics, both on the federal and state level, that should be it: The bureaucratic Colossus now wields and exercises unprecedented power, often ruthlessly. On the federal level the bureaucracy has attained and maintains shocking control over the government, no matter the party in power, no matter who occupies the Oval Office. Presidents come and presidents go, but, as they say, the civil service lives on forever. Their agendas, otherwise known as rules, otherwise known as laws we must follow, are way along in the pipeline by the time a president arrives in office. They just continue to churn along.

It’s almost as bad on the state level. These days state bureaucracies are more integrated with their federal counterparts than with the elected state polities to which they belong. Throughout the country, to shine a light on just one sector, the federal Department of Transportation (DOT) issues directives for state departments of transportation to use in construction projects, and state bureaucrats happily oblige. They funnel dividends and rewards to various private interests who sustain them and partner with them. That’s where unions come in, but it’s also where crony capitalists come in. And thus is formed a united front of federal and state agencies aligned with unions and sidekick crony businesses looking to line their pockets, and in so doing they force local communities to accept construction projects designed to kill them.

The DOT delivers federal money in return for federally prescribed transportation standards and formats: more bike paths and walking routes, whether they are needed or not, less vehicular ingress and egress. They eliminate access points to restrict highway entrances and to choke small businesses, to cite a common practice, and they channel traffic through small towns quickly, making it difficult to slow down, much less stop for a visit.

That’s just the tip of the iceberg. Amazingly, federal and state agencies form a co-functional but unelected government, from top to bottom, completely separate from elected state and local governments. As a result, the administrative state is virtually structured and closed off to competition or substantive public participation. It all adds up to a vertically integrated and parallel but unelected government that increasingly rules with an iron fist.

This unelected government is no less active or powerful in Wisconsin than it is in other states. Agencies in the Badger state routinely write rules that misinterpret and subvert legislative intent. Too much of the time—way more than half the time, in fact—agencies initiate rulemaking on their own accord without any legislative directive or need to do so, though administrative rules exist explicitly to implement democratically enacted laws. The law might not require professional licensing certification to include Diversity, Equity, and Inclusion training, for example, but, if the bureaucracy decides it must be a continuing education requirement, then it’s effectively the new law.

Case closed. The bureaucrats and only the bureaucrats know what education you need.

Increasingly in the last few years agencies don’t even bother with rules but resort to informal guidance documents that decree policy with no less the command of required compliance. They have repeatedly turned to courts to reinforce their own notion of legislative will, sometimes winning even when the legislature objects, and, as this is written, bureaucratic allies are brazenly challenging the constitutionality of the legislature’s ability to block rules that do not meet legislative intent.

If it’s good enough for the bureaucrats, it’s good enough for the public, in other words, whether the people and their elected representatives like it or not. And, if the courts don’t oblige, they go back to their cubicles, protected eternally by an ancient civil service law, to think of another way around the will of the people.

They enforce their will and way ruthlessly. They cut out the public with emergency rules that lack any underlying emergency, and often renew them ad nauseam after the original emergency rule expires. They harass farmers and bedevil small businesses and private property owners with minibus rules that “consolidate ” and reduce the number of rules even as they increase the number of restrictions within those rules. They impose arbitrary and unreasonable costs with their ideological expeditions into law-making.

They punish those who dare to challenge them on all this, often in executive branch tribunals where kindred bureaucrats sit as police, judge, and jury, rather then give due process in real courtrooms. They never give up. When one invented interpretation is exposed, they resort to another. When the legislature contradicts its edicts, often enough the bureaucrats emphatically defy the the legislature. And they usually get away with it.

For the bureaucracy must rule, with its rules.

The mission of this project is to show the breadth and scope of this unelected government. It is to expose the colossus that is the modern administrative state in Wisconsin. It is to examine the inner workings of agencies in Wisconsin that rule the state with their iron fists, controlling not just environmental regulations, not just commerce, not just health and safety, not just where you can live, but your very ability to enjoy the unique treasures that Wisconsin gives us in our daily routines.

They obstruct not merely the security of life, not merely the routine of life, but impede the ability of people to live the life they dream of living. The bigger the bureaucracy, the less the joy. The administrative state is a serial regulator that must regulate to survive and thrive. Regulation and control is its reason for being, after all.

Pull the bureaucracy’s zipper and out jumps Jack the Regulating Ripper.

  

Three New Restrictions a Day, Every Day

Fortunately, thanks to Wisconsin’s open records laws, there’s a public paper trail for all these offenses. We have the receipts. Plus, there are watchdogs who have compiled much evidence on their own, not to mention the state’s own aggregate statistics.

To be sure, there are many ways to gauge the scope of government overreach—the number of regulations, the use of emergency rules, the estimated fiscal impacts of proposed regulations, the number and use of guidance documents, whether the agency follows legislative statutory changes, the degree of vertical integration, among others—and on virtually all of these measures the state of Wisconsin flunks.

Take the number of regulations. In 2021, the Wisconsin Institute for Law & Liberty issued a report, “Wisconsin Regulation in Focus” by James Broughel and Adam Hoffer, that measured the regulatory burden in the Badger state, compared both to the nation and to neighboring states.

Using data from the Mercatus Center’s RegData project, what they found was astonishing: The Wisconsin Administrative Code (WAC) contained 12.25 million words as of 2020, as well as 161,549 regulatory restrictions, or 27.8 restrictions per 1,000 residents. That was more than Ohio (23.5), more than Illinois (21.6), more than Indiana (13.5), and, surprisingly, way more than Michigan (7.6).

So let’s take a fresh look. Using the same Mercatus Center data, one measure would seem to indicate that the state’s regulatory burden is receding. Whereas in 2020, the WAC contained 12.25 million words, in 2022 it had dropped to 10,415,159. You can just see the bureaucrats smirk. But such a number alone is not a reliable indicator of regulatory burden. A verbose and poorly written regulation might contain far fewer actual restrictions than a short, concise, and imposing one.

And that’s exactly the case here. Fewer words, yes, but more restrictions. By 2023, the latest year for which this data was collected, the number of regulatory restrictions—instances where the terms “shall,” “must,” “may not,” “prohibited,” and “required” are used—had grown to 165,311, the 13th most regulated state in the country. Not much in the way of population gain, about 100,000, but in three short years the number of state government restrictions on life had grown by 3,762. That’s roughly 3.4 restrictions a day the government is adding to the code.

It should be pointed out that the national average for 2022 was 136,262 (compared to 163,305 in Wisconsin in 2022), so Wisconsin is over-regulated even compared to the average of an overall over-regulated nation. And more than 53,000 of those regulations—about a third—targeted manufacturing firms.

Not surprisingly, the state Department of Natural Resources is the busiest of the bureaucratic bees. As of 2022, the latest year for this data, they have imposed 57,944 restrictions on Wisconsin residents, up from 55,170 in 2020. To put it another way, over those two years the DNR imposed upon the citizenry 2,774 new restrictions––about 1,000 more than the total of all new state restrictions. In other words, in the rest of the state agencies, restrictions actually declined slightly.

But even that decline is illusory. Nobody else is a close second to the DNR in total restrictions, but among the also-rans is the state Department of Health Services, with 16,825 restrictions in 2022, down from 17,518. That’s about 70 percent of the overall non-DNR decline right there, and mostly it’s due to a repeal of temporary pandemic restrictions. The state Department of Safety and Professional Services is next, hammering those trying to practice their professions with 15,729 restrictions, most of them relating to burdensome occupational licensing requirements. That’s only slightly up from the 15,694 restrictions it applied in 2020.

Another favorite is the Department of Agriculture, Trade and Consumer Protection, protecting us with 15,382 regulations, and the Department of Transportation with 8,989 restrictions. There’s also the Department of Children and Families, with 5,898 impositions and the Department of Workforce Development with 3,756 restrictions.

  

Finalizing Rules, Consolidating Power

These broad statistics don’t tell the whole story, either, other than to reveal the aggregate number of regulatory bricks we have to carry around on our shoulders each day. Another way is to look at the number of new rules for each year. That exercise reveals that the pace of regulation in the state—and in particular the pace of bureaucracy-initiated regulation—has accelerated since Tony Evers was elected governor.

For example, during Evers’s first term, the state finalized 423 new rules (as opposed to restrictions—each rule contains a host of restrictions). That compares to 369 new rules finalized during the last term of Republican Gov. Scott Walker’s administration. To be sure, that’s not quite an apples-to-apples comparison because some rules finalized under Evers were thrust into the pipeline during Walker’s term. Still, over four years it’s a broad indication of the increased emphasis on regulation under Evers.

That’s a significant increase. In absolute numbers, the Evers administration presided over the finalization of close to 15 percent more rules in its first term than Walker in his last term, and it explains the uptick in net new restrictions of 3,762 between 2020-2023. So if you are having trouble breathing, that’s why. It’s not much of an exaggeration to say that the overzealous pursuit of clean air (and clean water and clean this and clean that and the other) is squeezing the very life out of us.

  

Scoping Out the Scope of Government

It gets even worse when we consider the onslaught of rule proposals generated by the Wisconsin administrative state. First, it’s important to remember that an agency cannot write a rule without legislative authority to do so—an explicit grant of regulatory power to implement state statutes. Oftentimes this grant of authority is overly broad, giving agencies a blank canvass upon which to write the rules of the road for a given topic. And, sure enough, too often that road is wide enough for an agency to drive truckloads of unnecessary regulations through it, even to the point of subverting the law.

That topic will be explored in greater depth in this series, but for these purposes the starting point of a regulation is a scope statement, which sets out the objectives of the proposed rule. It must include such things as the entities that would be affected by the rule, potential alternatives to the proposed policies, and the number of bureaucrat-hours it will take to promulgate the rule, among other things. Most important to the scope statement is the agency’s statutory authority to propose the rule in the first place.

Thus, by analyzing scope statements, we can determine just why the rule is being written. Is it being written because a new law was passed and needs to be implemented, or an existing one amended and the existing rule needs to be realigned? Or is it being written because bureaucrats are seizing opportunities provided by broad grants of statutory power to write rules in given areas, and then writing unnecessary rules or restrictions that lawmakers never intended or envisioned?

The former we might call legislatively-required rules; the latter, bureaucracy-driven rules. Because rules exist to implement statutes, and to implement statutes only, bureaucracy-driven rules should be the exception rather than the norm. True, there are instances when agencies need to revise rules without new or specific legislative direction—omissions or contradictions were discovered, fees schedules needed to be updated, technical adjustments, realignment was required for federal compliance—but in general bureaucracy-driven rules should not win the day.

But that’s not the case, and a look at Walker’s last term and Evers’s first term is instructive. It’s not surprising that more rules were finalized under Evers than under Walker—14.6 percent to be exact—but what is surprising is that the number of rules proposed in scope statements was roughly the same under both, 514 scope statements in Walker’s final term, compared to 503 in Evers’s first term. The bureaucracy never sleeps, no matter who is governor. With the legislature controlled by Republicans during both terms, the consistent onslaught of scope statements under both a Republican governor wary of the administrative state and a Democratic governor who embraces it would suggest that the point of origin of many proposed rules are bureaucratically-driven, not legislative required, and a quick examination of scope statements shows that’s the case.

Looking at 2023, of 118 scope statements, and subtracting 18 emergency rules (those need to be dealt with separately), only 32 of 100 proposed rules were driven solely by legislative necessity, that is, only about three in 10 came about as a result of new or amended legislation needing to be implemented. Granted, some of the 68 bureaucracy-derived proposals were driven by the need for federal compliance, or required to jettison outdated language or to modernize technical procedures. Some rules proclaimed to seek lower costs and efficiency without the Legislature even asking, thank you very much.

The point is not that all bureaucratically-derived proposed rules were invalid or could be avoided; the point is that so few of them originate where they should be originating—in the legislature. To say it another way, the genesis for all rulemaking should reside in the legislature, and, the higher the number of rules conceived outside those chambers, the more encroachment on the constitutional separation of powers there is bound to be. The executive should always take its implementation orders from lawmakers, and even when the mission is a well-intentioned effort to maximize legislative intent, or to clarify language so as to ameliorate confusion and vagueness, legislative buy-in is a constitutional imperative.

  

While We’re At It ….

So when two-thirds of the rules originate in the ivory towers, mischief is bound to be at work. Sometimes, for instance, the agency does have to write a rule out of legislative necessity but then goes beyond the scope of the necessity. For instance, in 2023, the Department of Agriculture Trade and Consumer Protection (DATCP) sought to rewrite a rule related to flammable, combustible, and hazardous liquids to eliminate contradictions with recent state law, but then, going further, deigned to potentially update standards more broadly due to recommended changes by experts that are “generally accepted by industry. The key words being ‘experts’ and ‘generally.’

Sometimes the rules are sought because the legislature didn’t do what an agency wanted, as when DHS sought a fee increase related to the screening of newborns for congenital and metabolic disorders: "The department pursued a funding increase through the 2023-25 biennial budget, but that provision was not adopted by the Legislature. Therefore, there are no reasonable alternatives to address these increases than through proposed rulemaking.

There is no clearer statement of rulemaking abuse. The answer to legislative denial should never be bureaucratic override. State law does require the agency to impose a fee necessary to cover “necessary diagnostic services” for such disorders but that begs two questions: Who decides what are necessary services and disorders and why did the Legislature reject the funding request in the first place? Isn’t the alternative to plead the case again, on its merits, or to seek legal resolution of the conflict?

Not according to DHS. To the agency, if the legislature won’t do it, we will.

Sometimes an agency just thinks reform is needed, as when the Department of Corrections wanted to change standards for short-term sanctions on offenders on community supervision when there was an alleged violation of a rule or condition of supervision. The reason for the change in sanctions was to pursue a just, humane and efficient program of rehabilitation. This would seem important enough to require legislative action, or at least input, considering public safety and all, but the bureaucrats in corrections simply decided change was needed: "The alternative to this proposed rulemaking is not amending the provisions of this rule which would result in the department continuing to have outdated policies and a rule which needs reform.

Nowhere in the scope statement is there any mention of legislative concern about the current rule, or of the agency bringing any proposed “reforms” to the legislature.

In another case, the Department of Natural Resources dove into wildlife damage and abatement rules, observing that most of the rule revision would be “clarifying,” but just in case that wasn’t enough, the agency cautioned that there'd be "some substantive changes, such as “clarifying” allowable weapon types on nuisance and agriculture damage permits; or requiring that enrollees are responsive to requests for hunting access, or to align state rules with federal rules, including the Migratory Bird Treaty Act, which tethers the state to four international treaties; or updating the list of species for which permits are and are not required for animal control work; as well as setting hunter and trapper education requirements. Oh, and additional rule changes may be pursued which are reasonably related to those discussed here including additional updates to rules related to wildlife damage and abatement.

The list of reasons to write a new rule that the legislature hasn’t deemed necessary or even asked about go on and on, many of them significant rules that are really de facto law. This issue will be explored in other articles in this series. Suffice it to say that agencies are engaged in bureaucratic hubris. When it comes to the rules and regulations that control our lives, for whatever reason far more of them are birthed in the cubicles of unelected bureaucrats than are made by elected lawmakers carrying out the people’s policies.

  

And Now for the Rest of the Story (Apologies to Paul Harvey)

Sadly, that doesn’t even tell the whole story. As mentioned, scope statements require agencies to estimate the total number of hours it will take the agency to write the rules. One would think they would underestimate the time involved, lest it assault the conscience of even the most progressive of progressives, but even taking them at face value the number of hours is shocking.

In 2023, for instance, proposed agency rules would have taken an estimated 33,205 hours to write! That’s by the deep state’s own calculations. That’s not hours needed to implement rules. That’s not hours needed to enforce regulations. That’s simply the amount of time they would have spent writing rules to dictate your life. They don’t call them pencil pushers for nothing.

And that 2023 calculation does not include any proposed rules from the Department of Public Instruction, which for years has proclaimed in its scope statements that the amount of time needed to write a rule is “indeterminate.” That was the case with all 14 DPI scope statements in 2023. Apparently DPI rule writers have no aptitude for history or math.

Fortunately, the agencies don’t always get their way. Still, given that between 75 percent and 80 percent of all rules are approved, the math is fairly easy—somewhere in the neighborhood of 25,000 hours a year is spent in rule writing alone, more than half of that on agencies’ whims.

Finally, the level of public employment always tells its own story about the reach of government, though it is not always straightforward. Government employees are always a mix of service providers and regulators, and it is hard in aggregate data to separate the wheat from the chafe. For example, most studies of state public employee trends use data showing total state government employment. Even there, the number of full-time equivalent employees in Wisconsin has remained remarkably stable over time: In 2012, Census Bureau data shows, there were 70,543 FTE employees, and by 2018, at the end of Scott Walker’s administration, that had grown to 71,513.

To be sure, some analyses have shown a downward trend since 2012. In 2022, the Wisconsin Policy Forum ran a piece entitled “Wisconsin’s Public Sector continues to fall.” By 2021, the report states, state government in Wisconsin employed only 67,828 FTEs, the lowest level in two decades prior to 2020. And while the report acknowledged that the pandemic played a role, it also noted that per capita state government employment had fallen even prior to the pandemic and that state government employment "has not kept pace with the state’s population for decades.

But a number of caveats needed to accompany that assessment. The first concerns the pandemic, which played a far greater role in employments dips—and I do mean dips—than the wording in the report suggests. Employment fell virtually everywhere and for everybody, so a straight comparison between 2021 and earlier years is not apples-to-apples. The question is, was the drop permanent or was it in fact a temporary dip? The latest Wisconsin figures show the latter to be the case.

In 2023, Wisconsin state government employment has bounded back to 69,154 FTE positions. That’s still 3.3 percent below 2018, but it’s 2 percent higher than the 2021 number, which by the way was already larger than 2020’s rock bottom employment figure of 66,270. The post pandemic trend is back to greater numbers of public employees, not less.

There are other issues in this and other analyses. The most important is that relying on census employment data doesn't give a true account of regulatory employment; that is to say, the core of the bureaucracy that writes, implements, and enforces rules and regulations—the permanent classified workforce (PCW). This number typically excludes elected officials, employees of the legislature, employees of the state judicial system, appointees in the unclassified service, such as agency heads and other executives, assistant district attorneys and assistant public defender attorneys, limited-term and project employees, employees of the University of Wisconsin System, and employees of state authorities (who are generally not considered state employees).

In other words, these are your hard-core bureaucrats in the civil service who burrow deep into the administrative state and seemingly stay there forever. Fortunately, Wisconsin's Department of Administration does keep tabs on these employees and issues a report every two years, and those reports show remarkable stability in the permanent civil service, even during the pandemic. In 2012, for instance, there were 28,014 full-time equivalent workers in the PCW; in 2020, when the aggregate employment number was imploding, the number of PCWs stood at 28,808.

In 2022, the PCW did drop to 27,105, but that was driven by a huge drop in one agency, the Department of Corrections, which lost more than 1,100 filled positions since 2020, accounting for more than two-thirds of the drop in PCW filled positions. Census Bureau numbers show that corrections has seen a more marked decline than in any other state government sector in recent years, and that pattern is reflected across the nation, not just in Wisconsin. If anything, the corrections staffing issues mask the lack of any significant workforce reduction in state government overall.

What’s more, the number has resumed its uptick from its 2020 low: according to the report, the state in 2022 was hiring 13.1 new employees per day on average. There’s nothing like making up for lost time.

Two other caveats. It might be argued—and has been argued—that while absolute employment numbers have remained stable over the past decade, the per capita number has been decreasing because of population increases. That would be true, except aggregate per capita numbers can tell a misleading story. That’s because, while state bureaucrats make and implement the rules, many of them are enforced on the local or county level, and because those numbers tell us nothing about the nature of the remaining workforce—whether it is regulatory or service driven—it’s impossible to use per capita measures to extrapolate data about the true size and scope of regulatory government.

A very small work force can exert a very large regulatory footprint, just like a handful of celebrities can stomp around the planet with a carbon footprint that dwarfs that of the rest of us.

Finally, those pointing to a shortage of public employees have raised the issue of rising workforce vacancy rates. Positions may be authorized and budgeted, the claim goes, but many are not filled, and this has created a workforce shortage crisis. To be sure, in Wisconsin, in PCW positions, there was a 17.7 percent vacancy rate in 2022 compared to only 10.9 percent in 2012. On its face, this is alarming.

Alarming maybe if you’re a bureaucrat desiring more compatriots in the hive. But 2022 was an outlier; the vacancy rate just two years earlier was only 11.9 percent, which the state itself classified as only “minimally” higher than in 2012. What is most often missing in these analyses is that the numbers showing a stable PCW of about 28,000 employees (excepting 2022) represent filled positions, not vacant ones. For example, that 28,808 number in 2020 compared to 28,731 in 2010 is a comparison of filled, not budgeted, positions. Over time, then, the higher vacancy rate has meant just one thing—rather than fewer employees, it points to more authorized and budgeted positions overall. Indeed, in 2022 the number of budgeted positions had risen to 32,567 compared to only 31,493 10 years earlier.

So not only did the number of core bureaucrats actually on the job remain stable over the decade, the number of budgeted positions actually rose. And, in government, what’s budgeted will sooner or later be filled.

The bottom line is, the vacancy rate in no way points to a crisis in public employment; rather, it indicates the exact opposite. It isn’t declining fast enough. If the 2022 drop in core regulatory employees does turn out to be permanent—don’t hold your breath—it would be a godsend.

So the administrative state in Wisconsin is a Colossus indeed. The number of regulations, the number of restrictions, the number of hours spent writing regulations, the number of bureaucratically-driven and unnecessary rules, the number of core regulators on the job—all the data tells a story of an overgrown government that continues to grow and continues to overreach as it does.

By itself, the data is incomplete. Without looking at the bureaucracy in the real world, without examining the bureaucrats at work—how they subvert legislative intent, how they write new law with magic pens, how they adopt new laws masquerading as guidance, how they subvert statutory directives, how they persist at subverting laws for years—without all that, the true and monumentally negative impact the bureaucracy imposes on everyday life and real people is lacking and fragmentary.

Those stories begin in Part II, which will be published Friday, December 20th.

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