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Ten months into the reign of Scott Walker and the Brothers Fitzgerald I thought we’d seen it all. From the south-of-the-border flight of the 14 Democratic senators in February and the subsequent Capitol lockdown, including state troopers tackling Rep. Nick Milroy as he attempted to enter his office building, to Supreme Court justice smack-downs allegedly involving a justice-on-justice choking incident, many strange, unprecedented events have occurred in our state government this year.
What I witnessed this morning ranks up there with the most bizarre of these incidents: Republican lawmakers justifying their decision to suspend a Department of Justice rule that was made by Republican Attorney General J. B. Van Hollen, who appeared to want them to suspend it even as he defended his actions in promulgating the rule.
Welcome to the crazy world of administrative power grabs where, thanks to Act 21 passed earlier this year, the ability to make state policy is concentrated in the hands of the Governor and the powerful Joint Committee for Review of Administrative Rules, which is dominated by Tea Party Republicans.
This morning that committee held a “public” hearing followed by an executive session to consider and then approve suspending part of a Department of Justice rule implementing Act 35, the concealed carry law that would require people applying for concealed carry permits to receive at least four hours of weapons training. They also approved a second motion to remove language in the rule that requires applicants to identify the organization providing the training, and a signed statement by the instructor affirming that the course satisfied the statutory requirement for training.
I put the word public in quotes because the committee heard invited testimony only, and they only invited two people: Assembly Majority Leader Scott Suder and Wisconsin Attorney General Van Hollen. Newly elected Democratic Rep. Chris Taylor objected to the proceedings on the grounds that it wasn’t truly a public hearing. She asked the supposedly non-partisan Legislative Council attorney whether the term “public hearing” was defined in the statutes, and he answered that it was not. She followed up:
Taylor: In the absence of a definition, isn’t the dictionary definition the default one?
Legislative Council: The courts have upheld that.
Taylor: I don’t see how we can say this is a public hearing when we have not allowed the public to give their opinions.
Disregarding the first of many salient points raised by Rep. Taylor throughout the hearing, committee co-chairs Sen. Leah Vukmir and Rep. Jim Ott forged ahead with the agenda, set on accomplishing their obviously pre-determined outcome without regard to the actual questions raised or answers given.
In his testimony, Suder characterized the implementation of the concealed carry law a “critical issue” that deals with “one of the most important rights of American citizens.” He objected to the four-hour provision of the training requirement on the grounds that it “didn’t reflect the intent of the legislature.” That is one possible statutory basis on which a rule – or a part of a rule – may be overturned or suspended by the committee.
Suder argued that thirty-three of the forty-nine states that have concealed carry laws do not specify number of hours required for training. Toeing the classic Tea Party line, he said, “We should trust the judgment of law abiding citizens to choose the training course that meets their needs. The choice should rest with the individual and not be arbitrarily mandated by the government.”
In his testimony that followed, Attorney General Van Hollen countered that those thirty-three states without hour requirements have curricular content requirements for state-approved training courses that are far stricter than the simple four hours he was proposing. He noted that he wrote the rules in the least restrictive way possible while staying within the duties of his office.
Referring to his positive, lifelong relationship with firearms and his personal belief in concealed carry, Van Hollen informed the committee that the Department of Justice “will be very liberal in approving concealed carry permits.”
According to Van Hollen, the crux of the matter lies in the legislature’s failure to define the term “training course.” In the absence of such a definition, it is the job of the state law enforcement agency to define it in the rule- making process. In order to make a rule enforceable, there must be objective standards and a way to hold people accountable for them.
Hence the four-hour provision and the requirement for a signed certificate of completion so that there is a named person on the hook for compliance with objectively determined standards. In the absence of those two features, the rule is unenforceable. Defending his actions, Van Hollen said, “I’m not going to look the voters of this state in the face and abrogate my duty for defining this.”
He went on to say that the only complaints received by the DoJ about the four-hour requirement were “from the NRA, employees of the NRA and specific legislators.” He volunteered that an employee of the NRA was in his office as he was writing the rules and commented that NRA weapons training courses tended to be longer than four hours.
“I would argue that (the legislature) should pass a law saying what their intent is, otherwise we will follow what we think is the industry standard,” said Van Hollen in response to Sen. Vukmir’s assertion that the intent of the legislature is clear given that the Assembly Majority Leader is requesting this portion of the rule to be suspended.
Van Hollen rebutted, “Legislative intent is determined by the language of the statute, not the subjective views of individual legislators.” Speaking to Vukmir personally he added, “It appears to you that the intent was clearer than it was to the authors of the legislation.”
Referencing Act 21 that shifts oversight of state agencies from the legislature to the governor, Rep. Taylor asked Van Hollen if, as a duly elected constitutional officer, he was concerned about having to get approval from Governor Walker for the scope of administrative rules he writes for implementing laws. He responded, “Rule-making authority was a power of the legislature that was given up. I don’t object to that. The governor’s sign off on the rule gave a level of cover for these rules.”
Van Hollen’s testimony at the committee this morning was itself a cover for him to say that he has carried out the duties of his office. Twice during the hearing he encouraged the committee to suspend the very rule he believed was his legal and professional obligation to promulgate. He gave solid arguments defending the rule, but said that he believed the committee had the authority to suspend it.
While the content of the hearing was about the gun law, the political theater enacted this morning was yet another scene in the grand drama of consolidating power in the office of the governor and the hands of key Republican legislators. Its significance lies less in how concealed carry permits will be administered than in how public policy has come to be directed by a small group of ideologues.
When a rule is suspended or even in question by virtue of coming under the scrutiny of the Joint Committee for the Review of Administrative Rules, it becomes null and void until a decision is made. This opens the floodgates to political influence in rule-making processes. All that has to happen is for the committee to threaten to take an issue up in order to persuade makers of rules and renderers of opinion to shape their actions to the desires of those in power. If they aren’t so inclined to toe the line in the first place, the committee will simply override their opinions by hauling them into a hearing and voting against whatever is at issue.
The committee will be meeting again on Thursday to deal with the case of the Government Accountability Board, Wisconsin’s supposedly non-partisan elections board. Their issues are slightly different, but the power play is the same. The Director of the GAB rendered politically unpopular opinions back in September. The committee is claiming that those opinions rise to the level of rulemaking and therefore have to be vetted by the governor. In the two months since the first hearing on this matter, the GAB has changed those opinions significantly. On Thursday the Joint Committee for Review of Administrative Rules will decide if they have changed enough.
In the final analysis, the intent of the legislators wielding power in Fitzwalkerstan may have been adequately served by the charade of a “public hearing” today. As Van Hollen himself noted, “We can pass as many laws as we want, but if we can’t enforce them then they’re meaningless.”
Rebecca Kemble is an Anthropologist who studied decolonization in Kenya. She serves on the Board of the US Federation of Worker Cooperatives and as the President of the Dane County TimeBank.