UPDATED: Liberty Legislation Wins And Losses This Session

Editor’s Note: This story has been updated

MacIver News Service | Feb. 23, 2018

By M.D. Kittle

MADISON, Wis. – It’s been a big week for liberty and limited government in the Legislature.

“Our caucus has always stood behind the idea of more individual freedom in almost every single circumstance. I’m proud of what we’ve done,” said Assembly Speaker Robin Vos.

Several conservative-led reform measures won passage in the Legislature as the clock winds down on an active session. Some are headed to the governor’s desk, others have some final business next month in the Senate.

“Our caucus has always stood behind the idea of more individual freedom in almost every single circumstance. I’m proud of what we’ve done,” Assembly Speaker Robin Vos (R-Rochester) said Wednesday before floor session.

Honest Budgeting Prevails

One of the first bills out of the regular-session gate Tuesday was the base budgeting review bill authored by Sen. David Craig (Town of Vernon) and Rep. Rob Hutton (R-Brookfield). The Republican-controlled Senate passed the accountability measure, sending it on to the governor’s desk.

The bill requires state government agencies, the courts and the Legislature to periodically review – and justify – their budgets.

Legislators in the current budget process primarily debate adjustments to spending increases for each agency but never discuss the justification to the original base budget. The bill requires agencies periodically re-examine whether programs and expenditures are “meeting the mission statement of the agency.”

“This law will restore an important tool to make government do what families and businesses do every day – examine every dollar, see what is working, and evaluate priorities,” Craig said in a statement following passage. “Wisconsin families and businesses have to put all their bills and receipts on the table when making their budgets and so should government.”

Civil Asset Forfeiture Reform 

Another Craig bill, this one reining in law enforcement power to seize assets from individuals not charged or convicted of a crime, moved through the Republican-controlled Legislature this week, with some bipartisan support.

After an Assembly hearing with no opposition Tuesday, the Senate passed the legislation 22-10, with four Democrats voting for the measure. The Assembly then passed it Thursday during its marathon final floor session day.

As Craig said at the hearing Tuesday, the bill, co-authored by Rep. Rob Hutton (R-Brookfield), is a “long time coming.”

The legislation, which would demand a conviction before police could keep or sell seized property, is considered by some criminal justice watchers to be the strongest reform to a controversial law that has raised serious constitutional concerns.

Amended in a deal with the law enforcement community, the reform measure would require police to track forfeitures in a public database and it requires law enforcement to pay legal expenses in the most egregious cases of civil asset forfeiture abuse.

As conservative activist Larry Gamble pointed out at Tuesday’s public hearing, the reform measure does not call for the elimination of criminal asset forfeiture “because that is an extremely powerful and necessary tool in the fight against organized crime and in our drug epidemic.”

But Tim Dake, who testified on behalf of the conservative Wisconsin GrandSons of Liberty, said when police abuse the Fourth and Fifth amendments in seizing innocent citizens’ possessions, they have crossed the line into organized crime. The system, as it exists, places the burden on property owners to “prove their innocence,” as opposed to the state proving their guilt.

Derisively referred to as “policing for profit,” law enforcement may in certain instances keep up to 50 percent of the proceeds from the assets they seize, even from those who are never arrested for or convicted of a crime.

“A person who loses their money or their property due to a (conviction-less) civil asset forfeiture is no less a victim of crime than someone who is mugged or suffers a home invasion,” Dake said.

“A person who loses their money or their property due to a (conviction-less) civil asset forfeiture is no less a victim of crime than someone who is mugged or suffers a home invasion,” Dake said. “Directing police officers to seize property or money to augment a department’s budget is no less an act of organized crime than operating a car chop shop or a protection racket.”

Welfare Reform

The Senate on a party-line vote passed nine welfare reform bills Tuesday aimed at “prioritizing work as the solution to poverty.”

“Today we moved one step closer to making meaningful and effective changes that will transform the lives of those stuck in the generational cycle of poverty,” said said Sen. Chris Kapenga (R-Delafield), who helped lead the legislative effort after Gov. Scott Walker last month called a special session to take up welfare reform.

“This package of bills puts Wisconsin on the forefront of states who realize the best solution to fighting poverty is through the power of work. Ninety-seven percent of people who work full time are not in poverty, proving that a work-first approach is the best solution to help set people on the path to self-sufficiency,” Kapenga said.

The package, now awaiting the governor’s signature, includes a bill requiring able-bodied parents to get a job or enroll in training programs in order to receive benefits. They join able-bodied adults without children now required to work at least 20 hours per week in order to collect welfare.

Another bill sets asset limits on FoodShare and W-2 benefits. Those who own homes worth more than $321,200, for instance, are no longer eligible for the taxpayer-funded government assistance.

Another measure requires drug testing for public housing assistance, with funding for alcohol and drug addiction treatment.

Walker thanked the Republican-controlled Legislature for passing the reform package.

“These reforms will help people move from government dependence to true independence through the dignity that comes from work,” he said.

Tax Cuts

The Assembly signed off on a hotly debated bill that creates a child tax rebate and a sales tax holiday this year. Later this summer, parents will get a $100 rebate for every child under 18 who lives in the home.

The bill also creates a sales tax holiday for retail items under $100 in the first weekend of August.

After amendments, taxpayers will have the option to donate the child tax rebate to one of 10 state-approved charities, and retailers will be able to opt out of the holiday.

The $174 million package – unveiled by Walker the day of his State of the State address – passed the Assembly on a mostly bipartisan vote.

The proposals had plenty of opposition, including from conservative groups that pushed for broader reform. Each faces an uphill climb this month in the Senate.

“This isn’t our money,” said Rep. Tyler August about the child tax credit and sales tax holiday.

While criticized by the left and some on the right, the proposals do put money back into Wisconsinites’ pockets. As the governor and many Republican lawmakers have often said, surpluses belong to the taxpayers who made it.

“This isn’t our money,” said Rep. Tyler August (R-Lake Geneva).

Tax Conformity

While state Rep. Dale Kooyenga’s bid to bring back the governor’s $200 million income tax cut plan died before the Assembly floor, his tax conformity proposal did make it through.

Kooyenga (R-Brookfield) and Sen. Howard Marklein (R-Spring Green), both CPAs, hammered out the conformity package that would line up Wisconsin’s tax code with the many changes made in the recent federal tax reform law. Doing so will create less confusion for filers and the government, the lawmakers say. It will also save taxpayers money and provide some more tax relief.

Conforming with federal tax changes, for instance, will allow taxpayers to use investments in Edvest College Savings plans for K-12 education, in parental choice programs, or with other education-related expenses.

Next stop, the Senate, should the upper house agree to take it up later this month.

Regulation Relief

Wisconsin developers and homeowners would get some much-needed regulatory relief with the passage this week of Rep. Jim Steineke’s bill in the Senate. The measure is now headed for the governor’s desk.

Assembly Bill 547 exempts nonfederal and artificial wetlands from state Department of Natural Resources wetland permitting requirements.

While the left pushed a narrative of environmental destruction, the legislation simply ends the practice of the DNR requiring permits for any rut or crevasse filling up with rainwater not adjacent to true navigable waters. In some cases, developers have had to go through the onerous permit process after portions of pre-developed land took on water.

The legislation maintains the state requirement of the mitigation of impacts from discharge to a nonfederal wetland, mandated before DNR may issue a wetland individual permit.

“Homeowners who felt their property rights were being infringed upon because of a small area on their property that had some wetland indicators but never were truly wet, true habitat,” Steineke told Wisconsin Public Radio. “We also heard from family farmers who said they would like to expand their operations but couldn’t because of small, low quality wetlands that they were unable to fill or in many cases unable to afford to mitigate.”

Fraud Fighting 

A bill that stiffens penalties for Unemployment Insurance fraud passed the Senate Tuesday and is now awaiting the governor’s signature.

The measure, authored by Kapenga and Rep. Samantha Kerkman, would make intentionally defrauding unemployment insurance a criminal penalty.

“Together we are creating a strong deterrent to benefit fraud and protecting the Unemployment Insurance fund so that the program can remain a safety net for those who are out of work,” Kerkman (R-Salem Lakes) said in a statement following Senate passage.

According to a 2014 report from the Wisconsin Department of Workforce Development, from Fiscal Year 2011-12 to 2013-14 alone, there were nearly 65,000 cases of intentional fraud, amounting to $86.3 million in stolen money.

Kerkman said the legislation targets the worst offenders in UI benefit fraud by increasing the penalty based on the amount of the fraud, the same way it works for other types of theft.

Direct Primary Care

Legislation that would codify direct primary care, a free-market solution to the mess Obamacare has left, moved through the Assembly. Whether it makes it out of the Senate is another question.

While the bill’s authors – Rep. Joe Sanfelippo (R-West Allis) and Sen Chris Kapenga (R-Delafield) – sound optimistic about its chances, the measure, as of late last week, had yet to be scheduled for the Senate’s final floor session later this month.

Direct Primary Care is a free-market method of delivering health care in which patients pay their primary care doctors directly via a monthly fee, bypassing traditional health insurance that can obscure the actual costs of procedures. The innovative arrangement is often compared to a gym membership – doctors are paid a fixed monthly fee for a set menu of services, and waiting to see your doctor is virtually eliminated.

Since patients are paying the doctor directly and the cost of services is readily available, there’s significant downward pressure on prices as both doctors and patients shop around. And because people are getting their basic medical care from a primary care doctor instead of relying on the emergency room – a notoriously expensive method of delivering care – costs to provide basic care are significantly reduced, health outcomes are considerably better, and peoples’ quality of life is improved.

Assembly Bill 798 and Senate Bill 670 – properly define Direct Primary Care for what it is: Health care. And for what it is not: Insurance. Therefore, Direct Primary Care is not subject to the suffocating web of rules and regulations government places on health insurance. The proposal also authorizes a Direct Primary Care pilot program in the state’s behemoth Medical Assistance program.

The reasons for defining and expanding Direct Primary Care in Wisconsin are myriad – and the icing on the cake is that the reforms proposed by Kapenga and Sanfelippo have the potential to save taxpayers hundreds of millions of dollars.

Ending The ‘Patchwork’

Reform legislation bringing statewide uniformity to employment law passed on a party-line vote in the Assembly Thursday night.

Democrats, unions, community organizers and other opponents claim Assembly Bill 748 is an assault on Wisconsin’s tradition of home rule.

The measure would end the ‘patchwork’ of employment laws that create confusion, kill competition and drive up business costs based on the whims of local government.

Proponents say the measure would end the ‘patchwork’ of employment laws that create confusion, kill competition and drive up business costs based on the whims of local government.

“We have seen a trend around this country in which local municipalities are pushing their own labor laws on how employers have to operate, setting minimum wage and living wage standards, and other things that are really contrary to how businesses need to operate,” said Hutton, co-author of the bill. “State law has to trump where local municipalities want to create hurdles for employees.”

The reform bill is now headed to the Senate for the upper chamber’s closing floor session.

Transportation Reforms

It’s been over a year since the Legislative Audit Bureau released its report on the state highway program, which revealed systematic waste, fraud and abuse throughout the DOT leading to billions of dollars of waste. Auditors recommended numerous reforms to address those issues. After spending the year trying to increase highway funding instead, lawmakers finally got around to passing two simple reforms recommended by the auditors.

First, the DOT is now required to submit complete cost estimates with project authorization requests. That might seem like a fundamental principle in any budgeting process, but that wasn’t happening for the state’s road projects. Auditors discovered the partial estimates didn’t include engineering or inflation. That still doesn’t explain why major projects in August 2016 were 112 percent, $3 billion, over budget. However, having all the facts up front in the decision process can only help.

Auditors also recommended the state start using a “construction manager – general contractor” method in planning and constructing road projects. Bringing the contractor into the design phase of a project could reduce their uncertainty and risk – leading to lower prices. They can also recommend cost saving changes based on their experience in actual road construction. The Legislature authorized the DOT to use this method on three projects over the next three years.

Tort Reform

Tort reform legislation made the Assembly cut in the mad rush of final-day debate.

With a couple of amendments, Assembly Bill 773, passed on a party-line vote and now moves to the Senate.

The legislation would put restrictions on class action lawsuits and the discovery process.

Class action lawsuits will be more than familiar to anyone who still watches commercial television. A lawyer will come on the screen announcing, “if you or anyone you know is suffering with [insert grievance] contact us at [1-800-SUE-THEM].” Reformers say these commercials are essentially fishing expeditions. Personal injury lawyers only need to find one or two people that qualify to go ahead with the lawsuit. They shoot for a fast settlement, and give the alleged victims a pittance while they take off for the bank. AB 773/SB 645 would make changes to the notification process and how lawyers take their cut.

Fishing is apparently a popular pastime for lawyers, because reformers say that’s also what the discovery process has become. Trial lawyers will make herculean demands on the companies they sue asking for mountains of documents to be handed over. The goal is to overwhelm a company into a settlement, but you never know what you’ll come across when you force a company to unload its archives. The bills would limit how long and how far this process could go, weighing the burden on the company to the likelihood the lawyer will find something useful.

Bottoms Up


A bill that would extend closing hours at Wisconsin wineries won approval Thursday in the Assembly. It, too, now moves to the Senate.

Under current law, wineries are prohibited from staying open past 9 p.m., a protectionist restriction, critics assert, that stymies profit potential.

The Committee on State Affairs unanimously approved the bill (14-0) on Tuesday.

Liberty Bills Stalled

While liberty and limited government initiatives posted some big wins before the Assembly took off for the year, other freedom legislation died on the vine. The following bills failed to make the cut.

‘Dead End’ 

An army of Walmart workers and fellow supporters could not save a reform bill aimed at repealing large portions of a Depression-Era, competition-killing law.

The latest minimum markup bill, again authored by Sen. Leah Vukmir (R-Brookfield) and Rep. Jim Ott (R-Mequon), faced the same fate it has session after session, dying at the doors of the Assembly and Senate chambers.

At least this time it got a public hearing.

Vukmir expressed her deep disappointment.

“Allowing businesses to function freely while allowing consumers to purchase goods at the best possible price is commonsense,” the senator said. “The Unfair Sales Act lacks rational basis and is an intrusion into the private sector. It is absurd that this long overdue repeal appears to have hit a dead end once again.”

Senate Bill 263 would have eliminated the prohibition on retailers and wholesalers selling prescription drugs and general merchandise at below cost under Wisconsin’s antiquated Unfair Sales Act, commonly known as the “minimum markup law.

An army of blue descended on the Capitol late last month, as some 100 Walmart employees packed the hearing room and Capitol halls to show their support for the bill.

But proponents were no match for the special interests – the state’s convenience stores and status quo retailers – who have benefitted from the protectionist law that continues to cost consumers and the free market.

Bureaucratic Reform 

Another reform measure checking bureaucratic power failed to make the cut.

Assembly Bill 880, introduced by Rep. Andre Jacque (R-DePere), would provide greater oversight to agencies employing so-called guidance documents used to set policy. Critics of the practice say agencies use the documents to bypass legislative oversight and review.

The same problems occurred during the Obama administration, when agencies stopped creating rules and instead issued “guidance.”

U.S. Sen. Ron Johnson (R-Oshkosh) earlier this year introduced a bill he calls the Guidance Out Of Darkness (GOOD) Act. It would require all federal agencies to post their guidance on special webpages where Congress, and the public, can easily review them.

“This common-sense bill would provide much needed transparency to American businesses and consumers,” Johnson said in a press release.

AB 880 made it through committee and passed in the Assembly before dying at the Senate doors.

Improving Access To Dental Care

A bill aimed at helping fix Wisconsin’s dental shortage didn’t make it to the floor in either house.

But Rep. Mary Felzkowski (R-Irma), author of the bill establishing licensure of dental therapists, said she’s pleased at least that the Legislature has begun the discussion.

Assembly Bill 945 continues the conservative conversation on lifting regulation and allowing the free market to heal the government-led health care morass.

Wisconsin’s dentist shortage doesn’t get much attention, but it should be on the Legislature’s radar. The problem is more extensive than most know: 1.5 million people in Wisconsin live in areas with a shortage of dentists, and only one-third of children on Medicaid saw a dentist in 2016, the worst rate of all states.

The dentist shortage is a particular problem in rural Wisconsin and in low-income areas – 42 percent of Wisconsinites making less than $25,000 per year cited trouble finding a dentist as the reason.

A market-centered reform allowing dental therapists to practice in Wisconsin would go a long way to help ease this shortage of dental care. Dental therapists are mid-level practitioners, similar to physician assistants. Under the general supervision of a dentist, DTs can perform routine dental procedures either at a dental practice or in satellite clinics in underserved areas.

Minnesota has had a similar, albeit more restricted, licensure program for years. It has increased accessibility, and it has been supported by people from all political stripes.

Wisconsin’s bill, however, is very much disliked by dentists and the state’s most prestigious dental school.

Reining in the DNR

Sorry, Southeast Wisconsin. Your break from reformulated gas went up in flames this session.

Senate Bill 463, which would have stopped the mandated sale of special reformulated gasoline, made it through the Senate only to wither in the Assembly.

The bill requires the Department of Natural Resources to request a waiver from the Environmental Protection Agency from these heavy-handed Clean Air Act regulations. The hope was that the Trump administration would have granted a waiver, which would have ended the prohibition on the sale of regular, non-reformulated gasoline in the designated areas.

State Rep. Jesse Kremer (R-Kewaskum), author of the Assembly version, noted the environmental concerns of 20 years ago have dissipated in the six-county area of Southeast Wisconsin forced to live under the regulations. And there is an economic concern, Kremer told WUWM earlier this year.

“I have gas station owners on the county line and they’ve lost a lot of their business over the years because people jump counties where it’s 15 to 20 cents a gallon cheaper. So, this harms small business owners, it harms people on fixed incomes that live within these areas,” he said.

Reformulated gas stays – for now.

Another bill crafted to cut back on DNR’s regulatory zeal also failed to make it this session, despite a couple of amendments to placate itchy lawmakers. Senate Bill 459 requires the DNR to identify and repeal state-level regulations on air pollutants that are not covered under federal law. The proposal also sunsets any new such rule after 10 years. An amendment would have delayed implementation for more than two years. No deal.

Burnt Cookie Bill 

The “cookie bill” crumbled again.

Assembly Bill 360, as it has the past several sessions, garnered sweeping support in the Senate only to fail to come up for an Assembly vote.

The legislation would have opened up “limited” face-to-face sales of homemade baked and canned goods without having to obtain a license.

Current law demands food processing plant licenses from the Department of Agriculture, Trade and Consumer Protection for certain facilities where food is manufactured or prepared for sale through processes such as baking, canning, freezing, and bottling, with specified exemptions. The requirements apply when the food in question happens to be 100 lemon bars and three dozen blueberry muffins sold at a farmers market.

Violators face jail time and hefty fines.

The current law, however, is in limbo. A Lafayette County judge last summer declared it unconstitutional.

Opponents of the bill, particularly the commercial baking industry, have long said opening up retail to home bakers could raise health concerns. But the judge who struck the “cookie law” in his decision said there are no real health hazards to home-baked goods sales.

An amendment to the Assembly bill would allow annual sales of up to $10,000 before a license is required. A version that moved through the Senate had set the limit at $25,000.

The “cookie bill” remains unbaked for another session.

Relentless Referendums 

A bill that would limit the number of times a school board may seek approval from voters to hike district revenue limits did get a hearing this winter session, but it moved no further.

Senate Bill 195, authored by Sen. Duey Stroebel (R-Saukville), also would eliminate the distinction between recurring and nonrecurring referendums and would curtail the authority of a school board to include excess revenue generated for a recurring purpose in its base revenue per pupil in the determination of a district’s revenue limit.

Another Stroebel bill, Senate Bill 191, also stalled. The measure would limit when a school district can vote to have a referendum. It requires that school districts vote to authorize a referendum only at the school district’s annual meeting – not at special meetings called for that purpose. The bill also prohibits a vote to exceed a district’s revenue limit for recurring or nonrecurring purposes at special meetings.

In a session in which the Republican-controlled Legislature focused on delivering record funding to Wisconsin’s k-12 schools, Stroebel’s checks on referenda didn’t make the cut.

Investigating the John Doe Investigators

There will be no legislative investigation of the John Doe investigators – at least for now, and not as specified in a bill authored by Craig and Sanfelippo.

Because it arrived so late in the winter session, and because the language raised concerns about the security of private documents, sources say the bill never had a chance. It went nowhere, garnering very few Republican sponsors despite a general desire by conservatives to fully bring to light the abuses in one of Wisconsin’s darkest political investigations.

The bill creates a a bicameral committee – with rarely used subpoena power – to compel former agents of the disbanded Government Accountability Board, and others to testify under oath about their involvement in the unconstitutional John Doe probe.

Issuing subpoenas, the committee “may summon and compel as necessary or convenient” public officials, government employees, or a private person who worked for or with the former GAB on an investigation.

Subpoenas could also be used to gather evidence or material, including John Doe records kept by government agents and others employed or connected with the GAB investigations.

A DOJ investigation concluded late last year found stacks of poorly kept records from state campaign finance and elections investigations going back nearly 30 years, retained in the office of the state Ethics Commission and the Elections Commission – GAB’s successor agencies. The investigation also found leaks of court-sealed John Doe records came from inside the GAB, and that files of thousands of conservative communications were labeled “Opposition Research.”

The Assembly has directed Attorney General Brad Schimel to expand his investigation into the GAB’s conduct in the John Doe probe. But it apparently wasn’t interested in doing its own investigation.