MacIver News Service | Dec. 3, 2018
By M.D. Kittle
MADISON – This week’s scheduled extraordinary session of the Legislature has Democrats feeling extraordinarily cranky, charging the Republican majority with everything from post-election “temper tantrums” to legislative power grabs.
Republican leadership counters that the lame duck session is simply about finishing the limited-government reform work the GOP started nearly eight years ago and protecting those reforms from an incoming governor who campaigned to wipe them out.
What’s lost in the left’s lambasting of the first branch’s drive to rein in the unchecked power of Gov.-elect Tony Evers is that the Legislature’s extraordinary session is anything but unprecedented.
“The legislature will come back in an extraordinary session (this) week to finish our work,” Speaker of the Assembly Robin Vos (R-Burlington) and Senate Majority Leader Scott Fitzgerald (R-Juneau) said in a joint statement. “Wisconsin law, written by the legislature and signed into law by a governor, should not be erased by the potential political maneuvering of the executive branch.”
Republicans are proposing a suite of last-minute legislation, from a bill aimed at protecting people with pre-existing conditions to moving the date of the 2020 presidential primary and narrowing Wisconsin’s open-ended early-voting laws. Proposed measures would also require more accountability in the executive branch.
“This November, Wisconsin residents made it clear they are tired of divide and conquer tactics and want to see positive change,” Shilling said.
Actually, Wisconsin voters rendered a verdict of divided government, electing wide Republican majorities in the Legislature and giving Evers and Kaul narrow wins over the incumbent Republicans. More so, Democrats’ victories were fueled by historically high turnout in left-wing bastions, Madison, Dane County and Milwaukee, while Walker and Attorney General Brad Schimel won much of the rest of the state. That’s hardly a governing mandate for the left.
Among the more controversial measures is a bill that would move the 2020 presidential primary from the first Tuesday in April to the second Tuesday in March. Changing the date would decouple the partisan presidential election from the nonpartisan spring election. The shift would clearly benefit Republicans’ efforts to retain conservative state Supreme Court Justice Daniel Kelly, a Walker appointee, by moving a significant voter draw from the April ballot.
Walker, who said he has long found it “odd” that Wisconsin pairs nonpartisan and partisan elections, has vowed to sign a bill changing the dates.
“It just seems like there is a disconnect there,” Walker said at a press conference last month.
Democrats charge that the disconnect is the Republican majority trying to through last-minute and costly changes to the election calendar in an attempt to hold on to power. The Wisconsin Elections Commission estimates the cost of presidential primaries at about $7 million.
Republican lawmakers also want to protect Wisconsin’s voter ID law, requiring photo identification at the polls. The law, a critical check against voter fraud, and long under attack by voting rights activist Attorney General-elect Josh Kaul and Gov.-elect Tony Evers. A proposed bill would effectively enshrine the law.
One bill would block the attorney general’s ability to discontinue or compromise on a case that the state Department of Justice is prosecuting, if the governor grants approval. The proposal would require the Joint Finance Committee to sign off on any such compromise.
“The bill further provides that the attorney general may not submit a proposed settlement plan to JCF in which the plan concedes the unconstitutionality or other invalidity of a statute without the approval of JCLO (Joint Committee on Legislative Organization),” a bill summary states.
A related measure bypasses the Department of Justice and permits the speaker and the majority leader to appoint outside legal representation for lawmakers and legislative employees facing legal actions relation to official legislative business. For liberals who cry foul, conservatives need only point to a state Supreme Court decision earlier this year that sided with Evers’ position that he was entitled to pick his own attorney in a lawsuit questioning the DPI superintendent’s constitutional powers.
Several bills would strengthen legislative oversight of the executive branch. It boils down to a matter of trust, and Republicans clearly don’t trust Kaul and Evers to keep liberal activism out of the executive branch.
The Republican majority will take another swipe at a bill that would prohibit courts from simply taking the word of government agencies on law. The end of agency “deference” also would restrict the use of so-called guidance documents used by bureacrats to set policies. 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.”
Guidance document reform made it through committee and passed in the Assembly last year before dying at the Senate doors.
Republicans also want to make sure that welfare reforms, including stricter work requirements and drug testing initiatives, aren’t wiped out by a Democrat who has declared how much he loathes the reforms.
Another bill requires the state Department of Corrections to submit a report to the Legislature on just who DOC pardoned or released from prison before completing their sentences. It’s clearly a move to stave off the social justice warrior arm of the Democratic Party and Evers, who said on the campaign trail he supports cutting the state’s prison population in half. He would accomplish that, in part, by considering releasing some inmates early.
“The report must identify each individual by name, include the crime for which he or she was convicted, and provide the name of the person who pardoned the individual or authorized the early release,” the bill’s summary states. “If an individual appears on a report requested under this bill and is subsequently convicted of a crime, this bill requires DOC to report also the name of that individual and the crime.”
Evers, the superintendent of the state Department of Public Instruction, campaigned on doing away with many of the Republican reforms of the past eight years. His Big Labor friends, particularly in education, want to make sure Evers comes through on his promises.
The press release from the Wisconsin Education Association Council says it all.
“Educators are looking forward to partnering with Governor-Elect Tony Evers …” WEAC states in the opening of its “Take Action!” Letter to members and allies about this week’s extraordinary legislative session.
WEAC wants Evers to do whatever he can to knock out Act 10, Walker’s landmark 2011 reforms of Wisconsin’s public sector collective bargaining that have cost the union two-thirds of its members and a lot of money.
Democrats also are crying foul over legislation that would expand some key state boards and commissions. They are particularly miffed over a bill that would change the Wisconsin Economic Development Corp. board from 12 to 18 members. Ten of the members would be appointed by the speaker and the Senate majority leader. And the bill would give the board power over appointing WEDC’s executive director, taking away the authority from the governor.
The quasi-public economic development agency created during Walker’s first term by Republicans to replace the old crony-centric state Commerce Department has long been the focus of Democrat disdain. WEDC, too, has had its warts, but it also has negotiated some of the biggest economic development deals in Wisconsin history, not the least of which is the massive Foxconn Technologies project — the largest of its kind in U.S. history. On the campaign trail and after, Evers threatened to “disband” Foxconn. He, again, would need buy-in from the Republican-controlled Legislature to do so.
“Our state must stay open for business. WEDC, our economic development agency, must continue to have the ability to help spur job creation and business opportunities without fear of being shut down,” Vos and Fitzgerald said in their statement.
Evers and his fellow liberals are sounding the alarm about what they see as a Republican “power grab” that will tie the hands of the next administration.
“I’ve said all along I’m committed to working across the aisle, but I will not tolerate attempts to violate our constitutional checks and balances and separation of powers by people who are desperate to cling to control. Enough is enough,” Evers said in a statement.
The incoming governor, however, seems to forget that the legislative branch — the “first branch” — holds the authority to make the state’s laws and the power of the purse. While political motives are clearly in play, the Republican-led majority does have the clear constitutional authority to call such a session and to pass laws that demand more accountability of the executive branch. And until early next month, the state’s executive branch will be led by a Republican who holds the constitutional authority to sign or veto any bill he pleases.
Besides, such lame duck, “power grab” sessions are by no means unprecedented.
Democrats, fresh from a bad beating at the polls in November 2010, hastily called an extraordinary session mainly to push through union contracts that would protect their Big Labor friends from Gov.-elect Scott Walker’s budget ax. The move failed when former Senate Majority Leader Russ Decker (D-Weston) said he wouldn’t support the deals. This, after Democrat Rep. Jeff Wood was granted release from his 60-day jail sentence long enough to provide his party-line vote.
And while Democrats complain that the Legislature is moving to take power away from Evers, they fail to mention that Walker has voluntarily ceded oversight authority back to the Legislature.
Last year, Wisconsin became the first state in the nation to deliver on the REINS Act (Regulations from the Executive in Need of Scrutiny Act), when Walker signed it into law. The act provides greater legislative oversight of the regulations adopted by state agencies. Any rule or regulation with an economic impact of more than $10 million requires legislative approval.
And it gives the Legislature’s Joint Committee for Review of Administrative Rules more muscle. The committee is empowered to request a public hearing earlier in the rule-making process and call for an independent review of the proposed regulation’s economic impact.
Descriptions of Extraordinary Session bills:
Tax Code Changes and Transportation. (LRB 6070/6075-1) This proposal would make changes to the individual income tax to bring it in line with 2013 Wisconsin state law and with a recent US Supreme Court ruling. Revenue collected from out-of-state sales taxes would be applied to reductions in individual income tax rates. Pass-through businesses would now be allowed to pay the 7.9 percent corporate business tax rather than the individual income tax, if they so choose. LRB 6070/6075 would also make changes to transportation regulations. DOT would be required to spend no less than 70 percent of federal money on projects that receive any federal funds. In other words, the proposal would require the state to spend more federal money on fewer projects, finding efficiencies and spending less money on certain regulations, such as the federal prevailing wage.
Legislative Power and Duties. (LRB 6071/6076-1) This proposal would make a series of changes to agency powers, generally giving the Legislature more oversight over the executive branch. Certain rule changes, such as alterations to Capitol security policy, would now be subject to passive review by the Joint Committee on Legislative Organization. Agencies would be required to submit economic impact statements for proposed rule changes, and public comment periods would be required (a codification of REINS Act into law). If the Senate rejects any gubernatorial appointee, that person would not be permitted to serve in the position through the rest of the biennium. The bill also increases the size of the Group Insurance Board, and changes the composition of the WEDC Board of Directors. Under this bill, each legislative majority leader would appoint three individuals to the WEDC board. The legislative minority leaders would each appoint one individual, and the governor would appoint four. Thus, the number of members on the board would fall from 14 to 12, though the number of voting members would stay at 12. If any prisoners are pardoned, the bill requires their name and conviction be made public. The Legislature would be allowed to seek legal counsel other than the DOJ if accused of acts relating to their state duties. The bill also codifies changes to voter ID rules into law.
Presidential Primary. (LRB 6072/6077) This bill would move the date of the partisan presidential primary from the first Tuesday in April to the second Tuesday in March. The nonpartisan spring election would still be held on the first Tuesday in April. Early voting would be shortened by nearly a week, and application receipt would be extended from Monday – Friday to Saturday, as well.
Federal Government Waivers. (LRB 6073/6078) This bill would grant the Legislature and especially the Joint Finance Committee new oversight powers on agency requests for federal government waivers and pilot projects. If an executive agency plans to change any federal waivers, pilots, or demonstration projects, the changes must first be approved by the legislature. This would stop any changes by the new administration to halt plans to implement drug testing of Wisconsin FoodShare recipients, and work requirements for those recipients. Further, any changes to Medicaid or any medical assistance state plan would need to first be approved by the Legislature. The Office of the Commissioner of Insurance would be required to implement the Wisconsin Healthcare Stability Plan, also known as healthcare reinsurance.
State Agencies. (LRB 6074/6079) The final bill combines provisions of the previous four bills into one omnibus text, with one exception. Under the omnibus bill, the WEDC board would be comprised differently than in LRB 6071/6076. In this version, each legislative majority leader would appoint five members to the WEDC board in staggered four-year terms. Each legislative minority leader would appoint one member to the board, and the governor would appoint six members. Thus, there would be 18 voting members of the board rather than 12 as in current law and under LRB 6071/6076. As previously described, the rest of the provisions of this bill would generally expand the authority of the Legislature over the executive branch and agencies in a multitude of ways.
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Ola Lisowski and Chris Rochester contributed.