Republican lawmakers on the committee proposed a vote on the motion Thursday after Gov. Tony Evers told agencies to skip lawmakers in the final steps of the rulemaking process. Evers delivers his 2025 state budget address. (Photo by Baylor Spears/Wisconsin Examiner)

The Joint Committee on Legislative Organization voted by paper ballot along party lines Friday afternoon to direct the Legislative Reference Bureau not to publish any rule that hasn’t gone through a review by the Legislature in accordance with Wisconsin law.

Republican lawmakers on the committee proposed a vote on the motion Thursday after Gov. Tony Evers told agencies to skip lawmakers in the final steps of the rulemaking process. There are 27 administrative rules, including one to address the state’s policy on gray wolf management, that Evers submitted to the LRB for publication. Of those, 13 have not been reviewed by a standing legislative committee and are yet to be published. 

It’s the latest step the administration has taken in testing the bounds of the recent Evers v. Marklein II ruling by the Wisconsin Supreme Court. The majority found in the case that the state laws giving the Joint Committee for Review of Administrative Rules broad powers to block administrative rules indefinitely were unconstitutional.

The statutes cited in the Republicans’ motion Thursday were not included in the Court’s ruling.

“We are following the law and maintaining the fundamental checks and balances of lawmaking,” Assembly Speaker Robin Vos (R-Rochester) and Senate President Mary Felzkowski (R-Irma) said in a joint statement about the motion on Thursday. “The governor is flagrantly disregarding the rule of law and egregiously abusing the power of his office.”

Evers’ spokesperson Britt Cudaback said Republicans were defying the law in an email Thursday. 

“Republicans are reaching new levels of lawlessness, whether it’s President Trump trying to take over Washington DC, Republicans in Texas trying to rig maps and elections in their favor, or Republicans in Wisconsin who appear poised to disobey decisions made by our state’s highest court,” Cudaback wrote in an email message. “Republicans are not above the law — they should follow the law like everyone else is expected to.”

The measure passed 6-4. Republicans on the committee, including Vos, Felzkowski, Senate Majority Leader Devin LeMahieu (R-Oostburg), Sen. Dan Feyen (R-Fond du Lac), Rep. Tyler August (R-Walworth) and Rep. Scott Krug (R-Rome), voted for the motion. Democrats on the committee, including Assembly Minority Leader Greta Neubauer (D-Racine) and Senate Minority Leader Dianne Hesselbein (D-Middleton), voted against it.

A state Supreme Court ruling hasn't ended the friction between Republican lawmakers and Democratic Gov. Tony Evers over administrative rulemaking. (Wisconsin Examiner photo)

Republican leaders of the Legislature moved Thursday to block the Evers administration from bypassing legislative committees in implementing administrative rules.

Republican leaders of the Joint Committee on Legislative Organization (JCLO), with members from both the Assembly and the Senate, sent committee members a motion Thursday instructing the Legislative Reference Bureau not to finalize or publish any rules unless they have gone through a review by the Legislature in accordance with Wisconsin law.

The motion came two days after a published report that Gov. Tony Evers  instructed cabinet heads to skip the Legislature in the final steps of the rulemaking process.

It is the latest development in an ongoing feud between the Democratic governor and Republican leaders in the Legislature over the power of the executive branch to write rules in order to carry out state laws.

In a memo Aug. 12, Evers told department secretaries, “There no longer remains any statutory requirement to wait for legislative committee review before promulgating a rule once I have approved it.”

The governor’s memo cited the July 8 Wisconsin Supreme Court ruling in the case Evers v. Marklein that curtailed the power of the Joint Committee for the Review of Administrative Rules (JCRAR) to block executive branch rulemaking.

In the 4-3 decision, which has become known as Evers v. Marklein II, the Court majority ruled that state laws giving JCRAR broad powers to block administrative rules indefinitely were unconstitutional.

“This is good and important news as it means we can — and must — continue the people’s work in earnest,” Evers wrote in the memo, first reported by WisPolitics.com. “Accordingly, I am directing agencies to submit rules that have made it through that relevant part of the process to the Legislative Reference Bureau for finalization and publication.”

The motion distributed to JCLO members Thursday takes direct aim at the assertion in Evers’ memo.

The motion states that “the Legislative Reference Bureau (LRB) shall neither finalize nor publish any rules or proposed rules that failed to comply with the standing committee statutory requirements of s. 227.19 (2) to (4), Stats., including rules or proposed rules that have already been submitted to the LRB.”

Those statutes require that when administrative rules are in final draft form, the Legislature must be notified, a detailed report on the rule must be submitted, and the rule must be reviewed by a standing committee of the Legislature.

There are 27 administrative rules submitted to the Legislative Reference Bureau currently awaiting publication in the Administrative Register.

The bureau director, Rick Champagne, told the Wisconsin Examiner on Thursday that 13 of those rules have not yet completed standing committee review. Those have been classified as not to be published.

“Evers v. Marklein II did not address the constitutionality of standing committee review of proposed administrative rules,” Champagne wrote in an email message.

Among the rules held up pending review are one addressing the state’s policy on gray wolf management and one on surface water degradation. 

The remaining 14 rules have completed the standing committee review and are before the Joint Committee for the Review of Administrative Rules or have completed that process, according to Champagne.  

“I believe these are ready for publication under Evers v. Marklein II,” Champagne told the Examiner.

“JCLO has the authority to direct the manner in which the LRB will carry out its statutory duties,” Champagne added.  “The Wisconsin Supreme Court, in Evers v. Marklein II, did not eliminate standing committee review of proposed administrative rules.  If JCLO so directs, the LRB will not finalize or publish any proposed administrative rules that have not completed standing committee review.”

The paper ballot votes on the motion are due Friday and results are expected to be posted by the end of the day. The motion is expected to pass given the committee’s GOP majority.

The committee’s Republican co-chairs, Assembly Speaker Robin Vos and Senate President Mary Felzkowski, issued a press release Thursday calling Evers’ action to sidestep submitting rules to the Legislature for committee review a “direct contradiction” of the Court’s ruling.

“In Evers v. Marklein, the Wisconsin Supreme Court clearly stated that the Legislature ‘alone maintains the ability to amend, expand, or limit the breadth of administrative rulemaking in other branches” of government, the press release said. “Governor Tony Evers is attempting to circumvent statutory requirements that are part of the rule-making process and that no court has held to be invalid in any respect.”

“We are following the law and maintaining the fundamental checks and balances of lawmaking,” Vos and Felzkowski said in a joint statement. “The governor is flagrantly disregarding the rule of law and egregiously abusing the power of his office.”

Evers’ communications director, Britt Cudaback, countered with a charge that the Republican lawmakers were defying the law. 

“Republicans are reaching new levels of lawlessness, whether it’s President Trump trying to take over Washington DC, Republicans in Texas trying to rig maps and elections in their favor, or Republicans in Wisconsin who appear poised to disobey decisions made by our state’s highest court,” Cudaback wrote in an email message. “Republicans are not above the law — they should follow the law like everyone else is expected to.”