That was some Christmas present the Wisconsin GOP tried to give new governor Tony Evers — a barbed wire fence to tie him up in a moral conundrum.
When they realized the Democrats had defeated the GOP’s aging golden boy Scott Walker and swept all statewide offices, the Republicans took advantage of their gerrymander control of the legislature to stick it to the new governor while the agreeable old governor was still in office. They called an unsubtle lame duck session limiting Evers power and that of the new attorney general, Josh Kaul.
Because Evers had campaigned on withdrawing Wisconsin from the anti-Affordable Care Act lawsuit eliminating coverage of pre-existing conditions, the lame-duck laws specifically blocked him from doing so. Because he wanted to go after the Wisconsin Economic Development Commission (Walker’s pet agency replacing a commerce department) and its enormous giveaway to Foxconn, the GOP locked him out of any influential role in WEDC policies until September, by which time the Foxconn construction jobs and PR machine should be too massive to criticize.
It also gave the legislature authority to name its own legal teams if Kaul wanted to challenge the constitutionality or effectiveness of any law they passed.
In other words, the lame-duck session spat on the will of the people expressed at the ballot box.
Evers responded at first, even during his acceptance speech in January, with repeating his campaign pledges while promising civility – a near impossibility. The GOP was openly daring him to go against their laws, so they could label him a criminal.
But his team was actually strategizing. His staff realized there were plenty of outside groups expressing dismay at the lame duck bills – the League of Women Voters, the ACLU, Disability Rights Wisconsin, One Wisconsin Now, BLOC (Black Leaders Organizing for Communities) and multiple individuals and legal groups. It became clear they would carry the ball in court, even though technically they were suing the governor as well as the legislature.
And sure enough, as of February 13, three lawsuits have been filed so far, and a phalanx of unions have joined State Sen. Janet Bewley (Democrat northwest Wisconsin and assistant minority leader) in attacking the lame duck laws as an assault on the will of the voters and a naked “power grab.”
The unions are two branches of SEIU (Service Employees International Union), the Wisconsin chapter of the American Federation of Teachers, MASH (Milwaukee Area Service and Hospitality Workers) and the Wisconsin Federation of Nurses and Health Professionals (WFNHP).
Don’t read too much into the heavy presence of service unions as opposed to building and construction trades, since their leaders contacted are cheering them on despite the fact that thousands of temporary jobs are going to unions to help construct buildings and roads for Foxconn. Those may soon go away but building unions are accustomed to short term employment.
And they don’t see the lawsuits as directed at Foxconn as much as “the absurdity of that lame duck session no matter what side of the aisle you’re on,” said Dan Bukiewicz, who is both mayor of Oak Creek and president of the Milwaukee Building & Construction Trades Council. “It was the wrong way to represent the voters.”
Agreed Pam Fendt, president of the Milwaukee Area Labor Council, “Those lame-duck measures were antithetical to the principles of democracy and we are pleased there are organizations within our labor family willing to step up and challenge such an overreach.”
Another lawsuit in Dane County, seat of Wisconsin government, is led by the League of Women Voters and argues that the session was illegally convened so any laws produced should be declared void. Hearings are set for March.
Other plaintiffs have already won the first suit against the lame-duck session, which tried to play games with early voting and similar voting restrictions previously ruled unconstitutional and racially motivated in federal district court in 2016.
That suit was brought by One Wisconsin Now and the Wisconsin Citizen Action Education Fund with help from Eric Holder’s National Redistricting Foundation.
Federal District Judge James Peterson, clearly stung that the legislators would play games with his previous ruling with little changes of language, threw out those lame-duck laws January 17. You could almost hear the harrumph under his concise ruling: “This is not a close question: the three challenged provisions are clearly inconsistent with the injunctions that the court has issued in this case.”
That was federal. The two Dane County state cases may travel a more circuitous route to resolution. On previous occasions, state circuit court judges have seen pretty clearly the games the GOP plays. So the GOP wants the cases to move quickly through appeal to the state supreme court, where a lot of money has been spent to assure a conservative majority. One election last spring cut into that margin. So even the high court may be changing before the GOP’s eyes.
The lawyers in the union lawsuit have persuasively laid the case out as an attack on separation of powers guaranteed in both the state and US constitution. “In the blink of an eye,” one lawyer wrote the court, “the lame-duck Legislature fundamentally altered Wisconsin government by arrogating to itself powers recognized for more than two hundred years as within the exclusive province of the executive branch.”
Separation of powers raises a new problem for the high court. In the past it was dealing with a governor from the same party – a governor who could appoint judges, help raise campaign profiles and otherwise create trouble if bucked. Court observers suggest this will be a tougher issue for the high court to run away from. In the past it has upheld “Acts” limiting or eliminating collective bargaining and other rights.
The situation has created ironies. As attorney general required by statute to defend state laws, Kaul has informed Evers and the Election Commission that, since he has his own concerns about these lame duck laws, he can’t represent them. So both have turned to outside counsel that the taxpayers will have to pay for.
Evers has chosen a noted champion of cases against Walker and the Republicans – Lester Pines and his noted Madison firm Pines Bach. The Election Commission has also chosen a Madison firm, Lawton Cates that emerged from the labor rights movement. Both law firms reportedly will be paid $275 an hour while the GOP, also at taxpayer expense, is turning to their own high-priced right wing litigator.
As governor, Evers is a defendant in a lawsuit he hopes to lose, which would free him to act on expanding Medicare and getting out of the lawsuit against Obamacare. But simultaneously he blindsided the GOP in February by announcing initiatives on entrepreneurship and small business development that require immediate involvement from the WEDC and that Republicans will find difficult to oppose.
There are Democrats who wish he were, frankly, tougher and nastier at what GOP leaders Robin Vos and Scott Fitzgerald are trying to do to him, and how they paint him. But Evers holds his temper. He is taking a slower longer road, almost daring Republicans to oppose budget ideas and initiatives the public clearly welcomes.
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