Empower Wisconsin | July 10, 2020
By M.D. Kittle
MADISON — Oh, weep for Gov. Tony Evers!
The Democrat whined once more on Thursday after the Wisconsin Supreme Court upheld laws to check the executive branch passed by the Republican Legislature in the extraordinary session of late 2018.
What Wisconsin’s high court really did was follow the constitution instead of ignoring the core principle of co-equal branches of government as team Evers has routinely done.
“We had a race for governor in 2018. I won,” Evers petulantly pouted in a tweet. “Unfortunately, things got off on the wrong foot because Republicans immediately passed a law overriding the will of the people and the election, and they’ve been sour grapes ever since. From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences.”
Safer at Home, Evers’ unconstitutional lockdown of Wisconsin, and his end-around of the Legislature to halt Wisconsin’s spring election underscore why the extraordinary session checking the executive’s broad authority was so critical — to taxpayers, voter integrity, and civil liberties.
The same conservative-led Wisconsin Supreme Court ultimately struck down the Evers administration’s overreaching public health orders first issued during the outbreak of COVID-19. The court’s 4-3 ruling scolded Evers for, once again, failing to involve the First Branch in an area clearly where legislative input is required.
“Today’s ruling is a victory for the Legislature and all Wisconsinites who want to hold government accountable,” Senate Majority Leader Scott Fitzgerald (R-Juneau) said in a press release. “A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives.”
The case — SEIU vs. Vos, Senate Majority Leader Scott Fitzgerald — was brought by a labor union, a generous funder of Evers’ that dropped more than a half million dollars on his 2018 election campaign.
It was another loss for Evers and his liberal minions, who were furious that the Republican-controlled Legislature and Evers’ Republican predecessor, Gov. Scott Walker, pushed through laws that curtailed some of the executive branch’s power before the Democrat took office.
While Evers’ allies posted initial wins in liberal Dane County Circuit Court, the Supreme Court has twice upheld the Republican reforms.
The laws give the Legislature power to bypass Dem Attorney General Josh Kaul in intervening in lawsuits and require Kaul to consult the Legislature before settling lawsuits. The latter puts an end to the kind of “sue and settle” legal campaigns notorious in President Barack Obama’s administration. Under the high pressure tactics, government agencies agree to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process. The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.
“Specifically, the provisions regarding legislative involvement in litigation through intervention and settlement approval authority in certain cases prosecuted or defended by the attorney general are facially constitutional,” wrote Justice Brian Hagedorn for the majority in the 5-2 ruling. The court’s two liberal justices dissented.
Hagedorn said the Legislature may have an institutional interest in lawsuits involving the “public purse” or in its right to seek the attorney general’s participation in litigation.”
“Our state’s founders established co-equal branches of government in Wisconsin. This ruling reaffirms that each branch is equal to the other,” Assembly Speaker Robin Vos (R-Rochester). “This idea runs counter to what the governor and attorney general seem to believe. They deem the executive branch is the most important one and should unilaterally rule over the state,” Vos said.
Wisconsin Manufacturers & Commerce applauded the court ruling, saying it makes state government more transparent and more accountable. But the court did strike down a transparency measure that made agency guidance documents more accessible to the public, WMC said. Conservative Justice Daniel Kelly writing for the majority in the separate opinion, was critical of what he described as lawmaker’s attempts to “demote the executive branch to a wholly-owned subsidiary of the Legislature.”
Power-grabbing government agencies have used guidance documents as substitutes for rules and the rule-making process involving the Legislature. The law passed by Republicans required public opinion before agencies could release guidance documents.
“Traditionally, the regulated community had little or no access to these documents until they were pulled out of a regulator’s desk drawer and used against an individual or business,” WMC said in a statement. “Former Gov. Scott Walker changed this practice by encouraging his agencies to be more transparent by holding public hearings on guidance documents and posting them online. Act 369 codified these best practices.”
Cory Fish, WMC general counsel and director of Tax, Transportation and Legal Affairs, called on Evers to stand up for transparent and accountable government.
“The governor should follow precedent set by his predecessor and require his agencies to post guidance documents online, hold public hearings on such documents before they are finalized and cite their underlying authority for any regulatory requirements,” Fish said in a statement. “Businesses and individuals deserve to know about and have input on the rules government is mandating them to follow.”
Evers has shown time and time again that he will not follow the limited-government precedents of his Republican predecessor.