Public Policy

The term public policy describes decisions by government that affect you as a citizen. To use the contemporary jargon of strategic planning and performance measurement, public policy is the output of government, different from inputs and outcomes. So, we might talk about the Waukesha County Executive proposing to the County Board a new public policy on usage of county parks after sundown. In that example, the final decision would be up to these elected officials. On the other hand, perhaps the board of the Milwaukee Area Technical College (MATC) might adopt a policy on the proportion of new construction that should be financed by cash on hand versus how much should be financed through bonding (i.e. borrowing, akin to a mortgage). In this example, the public policy would be determined by appointed, not elected, office holders. Civil servants might also adopt public policy. For example, the city of Milwaukee’s Department of Neighborhood Services might decide on a new policy for how quickly it takes an absentee landlord to court for housing code violations.

In the context of governmental decision-making, then, one could argue that the word “public” in public policy is redundant, since everything government does is within the public sector and therefore “public.” Even situations of government stepping away from a policy area and leaving it to the free market to work out is a public decision, as the federal government did when it deregulated airline fares.

The Components of Public Policy: Who, What, When, How

Twentieth century political scientist Harold Lasswell (1902-1978) famously defined politics as “who gets what, when, and how.”[1] This is a pretty good definition of public policy, too, because public policy is the result of decisions by the political system—not in terms of election campaigns, but rather as to what those elected officials (or the people they appoint) decide after winning an election. Let us start with the who of Lasswell’s definition. In the Milwaukee metropolitan region, who decides what? And going a step further back, who decided who would get to decide that?

In essence, the focus is on power. Let us say the municipality where a person lives decided to reduce the speed limit on local streets from 30 mph to 25. Even if citizens think this is a dumb or even wrong decision, everyone must obey it. A person can be ticketed for going above the speed limit and can be forced to pay the fine no matter how unfair this person thinks it is. (Forget about “It’s not the money, it’s the principle. I’m going to fight this all the way to the U.S. Supreme Court.” You will lose.) In extreme cases, this individual could be jailed for continuing to go above the speed limit. Now that’s power.

This is why the question of power is so important when looking at public policy in the Milwaukee region. Governmental units can force us to do something or not do something. It does not matter if we agree with that particular public policy or not. There is no opting out when a government exercises the legal powers it has.

Who Decides Who Decides?

Getting to the starting line of public policy, who is the who? There is a short answer to almost all questions of who decided that: the Wisconsin State Legislature and the governor. The U.S. Constitution assigned some powers to the federal government. Generally, however, whatever powers were not given to the national government were instead given to the states, becoming their inherent powers.

When Wisconsin became a state, its new state constitution created a structure of government where counties and municipalities did not have any inherent powers. Instead, counties and municipalities could only do what state laws permit them to do. So, to use a simple example, what if a county or city wanted to build a downtown parking ramp? For the ground level of the structure, it planned to lease out the space to commercial for-profit companies, such as bars and restaurants. However logical and worthwhile the general idea may be, the overriding question is if state law permitted a local government to do that? This is not a far-fetched or artificial example. It happened when the author was in the state legislature. Generally, if there is no explicit delegation of a power to do precisely this, then the local government cannot do it. If the issue is hazy, the local government could try to claim that it had an implicit power to do this because the general powers the state law gave it, such as building and operating parking structures. But there is a chance a court would rule the local government was misinterpreting what the legislature had already permitted it to do. There is even a chance the legislature would react to the city’s plan by passing a law explicitly banning for-profit leases in parking structures owned by city or county government. In the instance in which the author was involved, I introduced a bill to permit the City of Milwaukee to do this construction project. It passed and became law.[2]

To use a common phrase from legal and political circles, in Wisconsin all local governments are creatures of the state. So, as a generalization, the answer to the question of who decided who would get to decide, in 99% of the cases the answer is always the same: the Wisconsin State Legislature. What the state giveth, the state can taketh away, too.[3]

One important reminder: when it comes to law making, the governor is a participant in that process. After all, in Wisconsin a governor can veto a bill, sign a bill into law, or (if it relates at all to spending and taxing) line-item veto parts of it. The legislature can overturn a veto, but only by a two-thirds vote in both houses. That is a very high bar, and it rarely happens. So, in referencing the central role of the state legislature in deciding who gets power in Milwaukee, the views and actions of the governor must also be taken into consideration.

In summary, when looking at who makes public policy in the Milwaukee area, the first glance must be toward the state legislature. Either it made a particular decision or it decided to delegate the power to make that decision to a local government.

An example of the legislature using its power to make public policy involves residency requirements by local governments for its employees. This was a relatively common phenomenon in Milwaukee. The city government had a policy that its employees (including fire and police) had to live within the city’s boundaries, as did the Milwaukee Public Schools (MPS) for teachers. In 2013, the legislature passed a law banning local governments from having residency requirements. This wiped away whatever local preferences were in place at the time.

Another example of the legislature directly making public policy affecting Milwaukee occurred when it created the Southeast Wisconsin Professional Baseball Park District. Controversially, that law included 0.1% sales tax in the five county region, including Racine. The state senator from Racine who voted for it subsequently faced a recall election and lost. The Miller Park example of direct policy-making by the legislature for the Milwaukee area helps explain one of the reasons why the legislature sometimes delegates decision-making powers to a local government. It may not want to deal with a political hot potato.

However, the level of popularity or unpopularity of a decision is not the only reason why the legislature might decide to give the power to local government. Some other reasons can include political ideology (“local control”), partisanship (“let’s do a favor for the Waukesha County Exec because he/she is of our party”), or just plain tradition (“we’ve always done it that way”).

The permutations of such delegations of power by the state legislature include giving the power to all county governments in Wisconsin, only to county governments with an elected county executive (which would include Milwaukee and Waukesha), or only to Milwaukee County’s government. The same could happen with the municipal level of government. For example, the legislature might give the power for a specific policy area to all of them (cities, villages, and towns), just to incorporated municipalities (which would exclude towns), only to municipalities within Milwaukee County, or only to the City of Milwaukee. Finally, the legislature could decide to create an entirely new and independent governmental entity. For example, state law created the Milwaukee Metropolitan Sewerage District (MMSD). So was the Waukesha County Technical College (and its counterparts throughout the Milwaukee metropolitan area). They are all run by unelected boards that have the power to tax and spend.

The making of public policy is very complicated, as complicated as the American system of government itself. There usually are exceptions to the general principles presented here. So, for example, the federal government often makes policy decisions that directly affect life in the Milwaukee area. Such actions generally trump the state legislature and whatever powers the legislature delegated to local government. Sometimes federal decisions that affect Milwaukee come directly from new laws approved by Congress and signed by the President. For example, the Affordable Care Act (aka Obamacare) significantly affected local health care, such as funding clinics for low-income populations, hiring staff to help people sign up for insurance, and financial incentives for area hospitals to be more cost-effective. Sometimes, important federal policy actions result from agencies that interpret and administer such laws. For example, the Army Corps of Engineers is responsible for maintaining major navigable waterways, including Milwaukee’s port. The Environmental Protection Agency has the power to approve or deny major construction projects based on how they would affect the local environment, such as the operations of the Milwaukee sewage district. The U.S. Department of Agriculture funds the food stamp program and monitors the local implementation of the program to be sure it is delivered in Milwaukee according to its nationwide regulations.

The “What” of Public Policy

The boundary separating the public realm, i.e. government, from the business sector is an ongoing and controversial one. Notwithstanding the term public policy, not all policies are made by the public. Sometimes government cedes the power of decision-making to private, for-profit corporations. At other times, based on the U.S. Constitution, government never had the power to do something in the first place. It is common for us to hear of arguments in Washington, DC, about the proper scope of the federal government. People to the right of the political center often assert that government should not meddle in a particular policy area and that business should be free to make decisions. For example, should the federal government be able to require private sector employers to offer health insurance to their employees? To those right of center, this is abhorrent. To those left of center, it is self-evident and needed.

There are parallel examples for Wisconsin. In 2010, the federal government offered state government about $800 million to construct a high-speed train between Milwaukee and Madison. The outgoing Democratic governor thought it was a good idea and a proper role for state government. The incoming Republican governor thought it was not (and prevailed). Similarly, should private sector workers be forced to pay dues to a union even if they do not want to? Should a proposed mine face tough environmental restrictions or minimal ones? Should people be able to sue doctors for alleged mistakes and obtain multi-million dollar verdicts or should there be a state law limiting how much doctors can be sued for? In these examples, conservatives generally seek to minimize the role of government and maximize free decision-making by business; progressives, the opposite.

One of the major national policy debates on the proper scope of government began in Wisconsin. It used to be that all parents could send their children to the local public schools (kindergarten through high school) for free. If opting instead for a religious or private school, the parents were wholly responsible for tuition. In the 1990s, Wisconsin pioneered a parental school choice program. Originally, the legislation addressed this issue only within the city of Milwaukee. Low-income parents could send their children to private and religious schools, and those schools would receive tax funding for such students (and, conversely, the public school system would get less money). Gradually, the program expanded. Proponents said there was a need to create a competitive, private sector marketplace for K-12 education instead of public schools having a monopoly. Republicans and Democrats disagreed whether religious and private schools should get public funding.

In general, the concept of “privatizing” a governmental activity means handing it over to business, such as through service contracts. For decades, Milwaukee County sheriff deputies handled the screening of visitors to the county courthouse. Then, the county decided to contract out that role to a private security company because it was less expensive. The private sector in Wisconsin sometimes even has the power to exercise public policy. When a private company wants to build a new power line for the grid, state government has delegated to it the power of eminent domain. That means if the owner of property in the path of an approved power line does not want to sell, the company can still force a sale.

However, it is more common in Wisconsin that governmental bodies are the ones that make and implement public policy. While there is no hard and fast rule about who does what, there is a rough consensus in Wisconsin’s political culture about divvying up these responsibilities. County governments tend to be responsible for social services, parks, zoos, mental health, jails, circuit courts, child protection, veterans, museums, bus systems, and major highway maintenance.[4] Incorporated municipal governments (i.e. cities and villages; not towns) are usually in charge of police, fire, libraries, garbage pickup, local streets, snowplowing, public health, and municipal courts.[5] It is clear from these two lists, in routine everyday lives citizens tend to “touch” municipal government much more than county government.

The “How” of Public Policy

As mentioned, there are many different ways how public policy is made. It could be through a legislative process controlled by elected officials, and not just the Wisconsin state legislature and governor, but also by a county board and county executive (or just the board if that county does not have an exec), a city council and mayor, a village board and village president, or a town board and town chairman. These are usually called “ordinances,” but they are laws nonetheless. Similarly, unelected government agencies sometimes make policy. In some cases, those formal policies have the force of law, even though not adopted by elected officials through a law-making process. At the federal level, these are called “regulations” and at the Wisconsin state level they are called “administrative rules.” (The latter are subject to veto by the legislature and governor.) At the city and county level, local agencies sometimes issue formal written policies, though these tend to be in the larger entities.

Independent regulatory commissions also make public policy. The most prominent Wisconsin commission affecting the Milwaukee area is the Public Service Commission (PSC). It decides all aspects of the operations of utility companies. By its decisions it can, for example, impose on the utilities serving the Milwaukee region requirements that environmentalists like and business do not—or just the opposite. Members of the PSC are appointed by the governor and confirmed by the state senate for a fixed term. But once installed in office, they are accountable to no one. Because the PSC members do not serve at the governor’s pleasure (as does the secretary of a cabinet department), they cannot be removed from public office easily even if the governor does not like the policies they have been approving or disapproving.

Finally, judges sometimes make public policy. The U.S. Supreme Court’s famous decision in the case of Brown v. Board of Education enacted a policy that segregation was unconstitutional. In another famous case, Roe v. Wade, the court declared there was an implicit right of privacy in the U.S. Constitution and that states could not regulate abortions in the first and (mostly) second trimesters. These two high profile cases demonstrate that judges also can make public policy. In Wisconsin judges are elected, while those at the federal level are lifetime appointments after presidential nominations and Senate confirmations. For example, in Madison, a federal judge ruled that the section of the Wisconsin state constitution limiting marriage to one man and one woman violated the federal constitution, thus permitting gay and lesbian couples in Wisconsin to marry. Within hours of that decision, the Milwaukee county clerk started issuing marriage licenses to single-sex couples.

Similarly, the state’s Supreme Court sometimes issues rulings that, in effect, make public policy. For example, in 2011, the court ruled that the state’s open meetings law (adopted by the legislature) did not apply to the legislature itself, even though the wording of the law seemed to say the opposite. Hence, the court established a public policy exempting state legislative activities from the requirements of the open meetings law, but did not do so for the creations of the legislature, such as city and county governments in the Milwaukee area.

In conclusion, public policy is the substance of what government does that affects our lives. Enacting public policy for the Milwaukee area is a complicated process because it is based on who gets to make the decision, what can be decided, and how it is decided. This encyclopedia has several entries on specific public policy areas, including Civil Rights, Public Education, Relief and Welfare, Transportation, and the Port of Milwaukee. Please see those articles for more detailed discussion of those categories of public policy in Milwaukee.