The summer of my twelfth year, my father dictated to me my summer job: I was going to have to paint the picket fence around our backyard. I had never painted anything before, so I punished him by peppering him with inane questions. “Where do I start?” “What size brush should I use?” And so on. “I don’t care how you do it – just get it done!” he snapped. At least that’s what I think he said, as my ears were ringing from the accompanying smack upside my head.

As it turns out, state law very much follows “dad law.” When the legislature passes a law and the governor signs it, it constitutes a directive – “paint the fence.” But in many cases, it leaves the minute details up to the state department that will be carrying out the broad new law – “just get it done.” Departments accomplish the “I don’t care how you do it” part by passing “rules,” which reside comfortably in legal purgatory, somewhere between real laws and complete anarchy.

In many cases, the Legislature leaves their newly passed statutes overly broad, to avoid codifying every little detail in state law. For instance, state law dictates what crimes will land you in jail. Rules determine what kind of nudie magazines you will be allowed to view when you’re in the joint. Rules govern everything from how big a pier you can have on your house to what classes your barber has to take to obtain a license, including – and this is not a joke – 35 “theory hours” of “Shaving, beard and mustache shaping and trimming.” Who can forget Aristotle’s treatise on mustache waxing?

Yet rules, while having the force of law, are passed in a peculiar way that circumvents the traditional legislative process – and opens the door for hijinks. Rules changes are drafted by a department, then sent to standing legislative committees, who may then object to the rule if they believe it to be a bad idea. If it draws an objection, the rule goes to the Joint Rules Committee, where it can be suspended. However, if it is suspended, the committee must introduce bills changing the law to remedy their percieved problem with the rule. If those bills do not pass, the rule goes into effect – without ever having been altered by the legislature.

Thus, in effect, rules are like laws in reverse. Whereas passing a new law requires a bill proactively passing through both houses and being signed by the governor, rules essentially start as law and require bipartisanship to invalidate them. Thus, in the case of a split Legislature, one party can always block an objection to a rule made by their party’s governor.

This has become increasingly problematic in recent years, when departments are taking more liberties with their rulemaking authority. Instead of merely carrying out the directives given them by state law, some departments are granting themselves entirely new lawmaking ability, knowing that a split legislature will likely pave the way.

For instance, the Wisconsin Government Accountability Board has voted to promulgate a rule that grants their members the sole legal authority to regulate campaign advertising during election season. While the law creating the GAB merely charges them with enforcing current election law, they have decided to settle this contentious issue that has confounded the U.S. Supreme Court for decades by merely making up their own law. This isn’t painting the fence – this is building a whole new picket fence that runs right through our living room.

Other rulemaking attempts have been equally as brazen. In 2005, Governor Jim Doyle actually attempted to raise the state’s minimum wage via administrative rule, knowing that he could simply veto any bill passed by Republicans if they attempted to object to the change. The State Supreme Court is attempting to use the rules process to wrestle legislative redistricting away from the Legislature, which clearly usurps legislative authority to set its own Senate and Assembly districts. Recently, the Supreme Court enacted a rule that changes the instances when tribal courts have jurisdiction over non-tribal members, which will have the effect of denying many litigants their right to a trial by a Wisconsin court. In a blistering dissent, Justice Patience Roggensack observed the new rule “undermines federal and state constitutional and statutory rights of litigants.”

New laws are the bright, shiny new baubles on which we all like to gaze. Enacting them takes all the elements of a good political novel – intrigue, secret deals, undue influence, and bloated, self-important speeches on the legislative floor. On the other hand, administrative rules have all the sexiness of Jim Doyle in spandex bike pants. In fact, in contrast to laws, rules only actually pass when nobody thinks to publicize them. But like Doyle’s bike pants, the rulemaking process is beginning to expand beyond the limit set by law (and good taste.) Maybe these bureaucrats need my dad to smack them in the head with a paintbrush.

-March 23, 2009

Poor Rod Blagojevich. First, he gets pinched by the feds, and now – after he politely declined an offer to resign his governorship – Illinois legislators are beginning their own investigation into whether he should be impeached. Apparently, the legislature is trying to shake the impression that Illinois is to political corruption what Florida is to flamingoes.

Of course, defending Blagojevich is like defending rabies. However, while we all have a pretty good idea that he was trying to auction off Barack Obama’s U.S. Senate seat, he hasn’t yet been convicted of anything. But that hasn’t slowed the calls for his ouster from legislators looking for political cover. It’s gotten so bad, some Illinois legislators could improve their image by getting their picture taken with George Bush.

In fact, herein lies one of the true ironies of the whole Blagojevich scandal. It appears elected officials of all parties are falling over themselves demanding the Illinois governor be thrown out of his job before he’s convicted of anything, in order to disassociate themselves from him. It makes sense, given what the evidence shows to this point. (One wonders whether Democrats are going to demand that Blagojevich be spared prison time, as he is one of the “nonviolent” offenders of which they believe the prison system is overflowing.)

But while politicians are more than willing to fire colleagues that reflect poorly on them, they never extend that courtesy to private businesses. In Wisconsin, an employee cannot be fired, prevented from being hired, or otherwise have any action taken against them because of arrest or conviction record. So if Rod Blagojevich was working the drive-thru at Popeye’s Fried Chicken and charged with a felony, his coworkers would be stuck listening to his foul-mouthed tirades about f’ing biscuits and gravy in perpetuity.

In 2005, the University of Wisconsin System came under fire from legislators when it was discovered that the system employed 40 convicted felons. Most were unclassified positions, like janitors. Actually, this number seems fairly low for any organization that employs 32,000 people. Look in the cubicle next to you – chances are that little old lady next to you is either a felon or would beat you in the head with a rake if given the chance.

So what did the UW Board of Regents do as a response to this revelation? They passed a new rule saying that action could be taken against any employee that is merely charged with a felony. Forget due process – they’re a government entity and they have some face to save. Once passed, this rule completely disappeared into the ether, never to be discussed again – although it almost certainly contradicts Wisconsin’s fair employment law. But it’s state government – so they have special rights that those silly private businesses shouldn’t.

According to Wisconsin state law – passed by the Legislature, of course – felons are prohibited from serving in the state Senate or Assembly. Clearly, it is the one job that requires so much integrity that it shan’t even be held by someone convicted of a felony 20 year ago. Apparently, the Legislature was concerned that it would make them look worse if there were a felon in their midst. Yet while they forbid any of those dirty criminals from working in their place of business, they mandate that they have to work with you. Clearly, the integrity of your workplace isn’t as important as that of our elected officials. THEY HAVE A VERY HIGH PUBLIC IMAGE TO UPHOLD, YOU KNOW.

Just ask this guy.

-December 16, 2008

In the 2008 presidential election, the economy featured prominently among the issues debated by the two candidates. The collapse of the housing sector interjected itself into the campaign, and swung the electorate solidly in favor of eventual winner Barack Obama. Obama was able to sell his message on the economy more ably than John McCain, capably reassuring American workers that their jobs were safe.

One of Obama’s primary economic talking points dealt with the outsourcing of American jobs, and what could be done to prevent it. One of the cornerstones of his economic plan was repealing “tax breaks” to “companies that shipped our jobs overseas.” Naturally, workers who already fear for their jobs want to do everything to make sure that job stays on American soil – and in an economy in collapse, that message resonates even more strongly.

Yet, as is the case in most campaigns, the truth became a casualty amid lofty rhetoric, shifting plans, and political charges. In reality, this campaign rhetoric is already light years behind the times – in an age of digital information and instantaneous delivery of data worldwide, jobs can be created in places like India and China at a fraction of the cost. Armies of Indian college students graduate every year, anxious to shed their native accents and join the global economy. They staff call centers helping Americans fix their computers, get credit cards, and order pay per view movies. They read ultrasounds sent to them digitally by American doctors and do legal research for American attorneys.

And, in many cases, they make American business more viable by holding down costs. Outsourcing allows many American companies to stay in business here in the U.S. by making profit possible. So while their customer service call center may be in Bangalore, their headquarters may employ hundreds of Americans here at home. And the cheaper they can run one arm of the company, the more they can offer the domestic employees. Furthermore, outsourcing allows companies to sell their goods cheaper, which benefits American consumers. Without it, we would pay more for virtually every good and service – as a result, American companies would sell fewer products and be able to hire fewer workers. This is why, even as jobs have been fleeing to other countries en masse, the unemployment rate in America has remained low.

While outsourcing is a worldwide issue, it has deep roots right here in Wisconsin. With an economy heavily dependent on manufacturing, Wisconsin workers are especially sensitive to the threat of their jobs being outsourced to a foreign country. As such, it has become a viable talking point for state politicians.

For the past two legislative sessions, Wisconsin State Representative Mark Pocan and State Senator Judy Robson have introduced what they have named the “American Jobs Act.” This proposed legislation would prevent state government from contracting for services performed outside the United States. For example, the State of Wisconsin contracts with JP Morgan Chase to provide food stamp recipients with electronic bank transfer cards (the Wisconsin QUEST card). When a recipient has a problem with their QUEST Card and they need to call a service center, they are not speaking to somebody in Wisconsin or the United States, but rather somebody from India or Mexico, whose wages are paid by Wisconsin taxpayers.

According to the bill’s authors, when state government outsources work, “we lose the income from those jobs, which support families and communities, pay for government services through taxes, and fuel the American economy. It is especially egregious when taxpayer dollars pay for those jobs in other countries.”

The Pocan/Robson jobs bill is illustrative, but perhaps not in the way the authors intended. It is clear state government contracts with businesses that outsource jobs, in order to keep costs down. If Wisconsin were to limit contracts to businesses that operate wholly in the U.S., it would likely substantially increase the cost of running the state programs those contracts support.

As has been shown in previous WPRI reports, Wisconsin currently has an imbalance between the taxes it collects and spending it conducts. For years, the state has had to use damaging budget gimmicks and schemes to keep state government afloat, as elected officials haven’t had the fortitude to scale back programs – in fact, at times when Wisconsin carried large deficits, the Governor and Legislature actually created expensive new state programs.

This brings up a provocative, and somewhat uncomfortable question. Would it be in Wisconsin’s best interest to outsource more of its services? If the Legislature isn’t willing to control costs by reining in spending, can the state follow the example of the private sector and utilize cheap labor to control costs?

The following points come to mind:

• Outsourcing more state government work wouldn’t necessarily affect Wisconsin jobs – much of the work is likely done in other states, anyway.
• Holding costs down in some areas through more extensive use of outsourcing allows the state to reallocate funds to programs with a higher priority. For example, money saved by shifting a call center overseas may allow the state to fund Medicaid or public schools without having to raise taxes on citizens.
• When developing countries get American jobs, it creates new markets for American products. As India and China expand, so do the potential consumers of Miller Beer, Harley-Davidson, and Fox Valley paper companies – which helps retain Wisconsin jobs.
• Wisconsin currently participates in the World Trade Organization Government Procurement Agreement. Under the agreement, preferences in favor of the United States over a certain dollar amount are forbidden. Limiting outsourcing would actually put the state in violation of this trade agreement.

When the Legislature convenes to begin addressing the current $5.4 billion budget shortfall faced by the state, it will debate whether to cut spending or, more likely, which taxes to raise. One thing that likely won’t be discussed at length is how to stretch our tax dollars further to avoid tax increases or service cuts – which could be accomplished by finding cheaper ways to pay for routine state operations. If we can stop pretending there are such things as “American jobs” anymore, we can help keep money in the pockets of Wisconsin workers and help the state’s economy get moving again.

-December 3, 2008

For centuries, all men have really wanted is the opportunity to have some woman look at their underwear. We have devised myriad strategies (jobs, cars, combovers, breath fresheners) in hopes of creating just the right moment for a lovely lady to gaze at our drawers. Fortunately for the men of the world, having people look at your tighty-whiteys could now actually save the planet.

Everyone these days is “going green.” Television stations turn off the lights for 30 seconds to convince you that somehow they’re being environmentally responsible. Companies throw the “green” tag on things like cleaning products and bottled water, despite their questionable environmental value. However, some businesses have seen millions of dollars in savings by “going green.” A young professionals’ group in Milwaukee lists a green way of life as one of the top reasons young people would be attracted to a city.

Obviously, if citizens continue to buy bogus “green” products at the same rate they currently are, it won’t do a thing to help the environment. Yet often times, government and nosy neighbors can stand in the way of green activities that actually matter. For instance, local governments and neighborhood associations across the U.S. have declared war on outdoor laundry lines, citing their lack of aesthetic quality. Some environmentalists are starting to rebel, pointing out how much energy it saves to hang your clothes out to dry rather than using an electric dryer. (Plus, many of them need the extra space in their laundry rooms for all the heat lamps and aluminum foil.)

In 2005, according to the Association of Home Appliance Manufacturers, there were 88 million dryers in the United States. Annually, these dryers consume 1,079 kilowatt hours of energy per household, creating 2,224 pounds of carbon-dioxide emissions.

Enter Project Laundry List, a tax-free 501(c)(3) group that claims to be fighting for individuals’ rights to leave their underwear flapping in the breeze. (The group’s website doesn’t show a Wisconsin chapter…yet.) Their website lays out the various state and local ordinances banning outdoor laundry lines, and urges introduction of “right to dry” legislation that protects the environmentally smart practice. (Several states have actually passed legislation pre-empting local governments’ right to ban laundry lines.)

The site also contains testimonials of people who associate laundry lines with the simpler days of yore, when they played in the backyard as children amongst drying laundry. Laundry line advocates also point out that hanging up clothes outside involves physical activity and spending more time outside with your neighbors – things society could use more of. (Then again, in the old days, there was less of a chance of some dirtbag stealing your bra so he could sell it to buy meth.)

Yet neighborhood associations (which rank somewhere between al-Qaeda and rat poison in public favorability rankings) maintain their right to promote pleasing aesthetics within their fiefdoms. They think nobody wants to see their neighbors’ unmentionables in public. (If you knew my neighbors, you’d recognize this as a valid concern.) It has been said that outdoor laundry is seen by some as a “flag of poverty”

This begs a larger question – how involved does government (or a neighborhood association) have to be in protecting us from the horrors of seeing things we don’t like? Government surely isn’t going to come in and force your co-worker to trim his gross nose hair. There’s no reason we need laws to ban us from having to view laundry. If you don’t like the sights, sounds, and smells of the outside world, go live in a bunker.

As in any case of public/private rights conflicts, accommodations can be made. Outdoor laundry can be limited to the back yard, to protect the most sensitive of citizens from having to see a skid mark on their stroll through the neighborhood. Outdoor drying can be allowed on one day per week. There are options here.

Few opportunities arise where people can make a meaningful environmental difference and save money at the same time. Our government just needs to throw us a line.

-July 8, 2008