PoliSci 8-9

Functions of bureaucracy

Implementation
Rulemaking
Adjudication
Enforcement

Bureaucracy fills in the policy of a legislature’s bill

Street-level bureaucrats

Frontline workers; make policy via daily judgement calls

Ex. cops

Line agencies

Front-facing bureaucracy, serves the public

Ex. DMV

Staff agencies

Back-facing, serves the government

Ex. Wisconsin’s Department of Administration

Boards and commissions

Multi-member panels deliberately insulated from governor

Ex. elections boards

Limits on governors

Governor limit — plural executive

Elect some executive officials separate from governor

Ex. Wisconsin elects the AG separate from the Governor

Governor limit — boards and commissions

Members can’t be fired at will, keeps governor from packing

Governor limit — civil service

Employees protected from political removal, ensures bureaucracy survives partisan control

Governor limit — practical

Legislative budget control, federal funding strings, agencies’ own expertise and constituencies

Kaul v. Prehn

Wisco — NRB board chair stayed after term ended because Senate never confirmed Evers’ nominee; survived wolf-hunt votes until Dec. 2022

Spoils system

Bureaucratic positions rewarded for political loyalty

Pendelton Act

Federal merit system for bureaucratic positions created

Template for most state bureaucracy laws

Wisconsin Civil Service Law (1905)

Ensures merit hiring for civil service the norm

Pros of merit system

Accountability
Neutral competence
Protection
Less corruption

Neutral competence

Merit system ensures bureaucrats keep doing their job regardless of who controls office

Cons of merit system

Accountability → entrenched staff do what they want
Hard to fire
Slow, rigid hiring
Self-answering bureaucracy

Sunsetting

Form of bureaucratic oversight, laws expire unless reauthorized

Ex. Colorado in 1976 requiring all agencies to have sunset provisions
Ex. Texas Sunset Commission

Act 150

Wisconsin law that replaced bureaucratic exams with resumes

Shakman Decrees/Illinois Bureaucracy

Individualistic

Patronage/spoils hiring, federal oversight established in 1972 to kill machine politics, ended in 2022

JCRAR

Joint Committee for Review of Administrative Rules

Killed in Evers v. Marklein II, where SC held that indefinite legislative blocking was illegal

Statutory override

Legislature passes new law to supersede agencies interpretation of existing statute

REINS-style approval

Agencies need explicit approval from the legislature before implementing a rule

Evers v. Marklein II

JCRAR cannot block rules indefinitely

May 2026 Dane County ruling let 27 stalled rules take effect

Principal-agent problem

Information asymmetry

Voters (principals) delegate to bureaucrats (agents), agents know more about policy than the principals

Agents may pursue their own goals

Police patrol oversight

Legislators actively and routinely inspect agencies to prevent deviation

Fire alarm oversight

Legislators wait for complaints from interest groups, media, or citizens to pile up before investigating

Tetra Tech v DOR, Loper Bright (2024)

Judges, not agencies, have final say on statuses

Hollow-state

State is legally responsible for contractor behavior, but isn’t overseeing care — creates accountability gaps

Ex. Wisconsin W-2 2000, Milwaukee contractor misusing public funds

Pros of contracting

Cost savings through competition
Flexibility: easy to hire and fire
Specialized expertise of private entities

Cons of contracting

Hollow-state
Contractors more opaque than gov
Monitoring can create more costs

Act 10

Wisconsin 2011 law killed public-sector collective bargaining

Currently fighting in courts, Wisco SC currently weighing

Passive representation of bureaucracy

Staff demographic should mirror the public demographics

Ex. Black students w/ Black teachers are more likely to graduate

Active representation of bureaucracy

Staff act on shared experience in ways that change outcome

Dual constitutionalism

Every American lives under two constitutions

Ex. Alabama longest, 389,000 words

Common core of state constitutions

1. Preamble and rights first

2. Three branches

3. Offices and elections

4. Amendment rules

5. Locak government

Revolutionary state era

Period of legislative supremacy, weak governor

Jacksonian state era

Period of mass enfranchisement of white men, elected judges, debt limits for states

Reconstruction

Period of mass black enfranchisement, strengthening of governors, Southern public schools

Jim Crow (1877-1910)

Period of Black disenfranchisement, weakening of governors

Progressive state era

Period marked by initiative, referendums, recall, direct primaries

Modernizations state era

Period marked by strong governors, unified courts, full rewrites

4 ways to alter constitution

Legislative proposal
Constitutional initiative
Constitutional convention
Revision commission

Revision commission

Appointed panel studies text & recommends change, goes to ballot

Ex. Florida meets every 20 years, goes straight to ballot. 2018 ban on vaping.

Constitutional Convention

Delegates consider a broad rewrite, which voters ratify

Ex. New York automatic every 20 years, 80% said no to avoid a runaway convention

Wisconsin amendment process

Two consecutive legislatures, then a statewide majority
Governor has no veto
Ex. 2023 cash bail expanded judges’ authority for cash bail

“Dead letters”

Parts of constitution that remain in text despite being voided by SC
Usually left in incase SC overturns decision
Ex. Alabama text banning interracial marriage remained until 2000

Pros of easy amendment

Flexibility
Innovation
Citizen voice
Local fit

Cons of easy amendment

High cost
Entrenchment
Tied hands (ex. Prop 13 constraints future legislatures)
Clutters constitution

Dillon’s Rule

Local governments only have powers explicitly granted in state constitution

Ex. counties in Wisco, such as Milwaukee County. Milwaukee County has more power than the city

Home Rule

Local governments have control of local matters w/o state approval

Ex. villages in Wisconsin

Federal floor, state ceiling

States may add rights, never subtract them from the constitution

Ex. Espinoza v. Montana, SC ruled 5-4 that Montana cannot disqualify private schools from public benefits solely for religious status

REINS Act Wisconsin

All bureaucratic rules over 10 million dollars in Wisconsin need a law to back them up

Block Grants

Large, lump-sum grants with few strings attached, designed to return power from the federal governments to states

Ex. CBDG to fund low-income communities

New Judicial Federalism

State SCs have the responsibility to interpret state constitutions to guarantee rights, rather than mirroring federal standards → states are a “font of individual liberties”

Articulated by SC Justice Willaim J. Brennan in a 1977 article.

Ex. Goodridge (2003)

Goodridge (2003)

Mass SC ruled that denying marriage licenses to gay couples violated equaity guarantees of state constitution

Federal floor, state ceiling

Held v Montana

2024 Montana SC ruling where a constitutional right to clean environment included a stable climate system

Stopped Montana from blocking GHG considerations in fossil fuel project approvals

Federal floor, state ceiling

Supremacy Clause

Article 4, Clause 2 — U.S. constitution and federal laws are “supreme law of land,” federal law that conflicts with state law takes precedence

Ex. Obergefell v Hodges

Obgerfell v. Hodges

U.S. SC ruled state bans on gay marriage violated U.S. constitution, nullified bans & legalized gay marriage nationwide

Collision of state and federal power

Legislative Reference Bureau (LRB)

Nonpartisan research board that serves as the official legal & research arm of the Wisco state legislature

Provides advice to turn ideas into effective legisaltion

Colorado TABOR

Constitutional amendment that limited state' legislature’s ability to tax and spend

Example of easy amendments ultimately tying legislator’s hands