Here & Now

Former Gov. and AG Weighs in on Lame Duck Session

Zac Schultz:
So what will it mean if the legislature has more control over the actions of the attorney general and the governor? In tonight’s closer look, we’ll go to the best possible source, former Wisconsin Attorney General and Governor Jim Doyle. Thanks for being here.

Jim Doyle:
Im glad to be here.

Zac Schultz:
Youve maintained a pretty low public profile in Wisconsin since leaving office eight years ago. Why did you feel this was the time to come back?

Jim Doyle:
I believe I shouldn’t be just sitting there. I have a really good life. I loved every minute of being governor and attorney general. I’ve loved every minute of moving on with my life. It wasn’t for me to always be there criticizing the policy of what was acted. Other people are for the fight but–are into that fight. But now, this is about the basic institutions of government. This is about the powers of the attorney general, the powers of the governor. And even more importantly, it’s about, I think, really giving the citizens of Wisconsin confidence that you go to the polls, you have an election, there’s a vote, the voters choose and then there’s an orderly process by which the power is transferred. I was — I defeated an incumbent Republican. He had been a one-term attorney general, Don Hanaway, very good man. He was disappointed. He wanted to be attorney general forever. He, he — but he invited me in within the first week, opened everything up, was nothing but classy. And then I defeated a Republican incumbent governor, Scott McCallum. Scott McCallum loved being governor, wanted to continue to be governor, was very disappointed. I think thought he was going to win the election, was disappointed that it didn’t happen. And yet he responded with nothing but grace and class, invited me in, opened up the government, wrote transition memos from all the departments. It was just a whole different way of going about it that really says to people, yes, democracy work. You have an election and then there’s a winner and you move on.

Zac Schultz:
So is there something in this package of bills or changes that’s more egregious to you or is it just the totality of them?

Jim Doyle:
Well, the totality. And just the unseemliness. This has cast Wisconsin obviously in a very bad light nationally. It’s just being a sore loser. It’s just kind of being mad that you lost and then doing this. I hear this from a lot of people. Republicans and Democrats. They just think it just looks bad. But there are a lot of specifics in this. To go to my original, my first office of attorney general, you know, Don Moynihan used to be the director of the La Follette Institute wrote an Op-ed piece in the Washington Post recently. He said, “Does this mean in Wisconsin, you can only have an attorney general when it’s a Republican?” I mean can these guys really look themselves in the eye and say they would be doing this if Attorney General Schimel had been re-elected? Of course not. So when you restrict the power of the attorney general like they have — and they backed off on some — a number of things, but it’s pretty egregious. First, it’s unconstitutional. Most of this will get thrown out in the courts. I guarantee it. But we’re going to spend a couple of years just with one branch of government suing another branch of government with courts looking, thinking what’s wrong with you people. Why can’t you sort this out? But more importantly, it’s the Wisconsin citizens that lose because the attorney general is the lawyer for the people of the state of Wisconsin. The legislature is really trying to take that power to protect the citizens away from the attorney general.

Zac Schultz:
Now, you spent your first term in office dealing with Republican legislature and there were a lot of fights in those times. But what would life had been like if you were governor with these rules in place where they could cancel your appointments and they could overrule agency rules and permanently suspend them?

Jim Doyle:
It would have been very different. I’ll give you one of the most and this is one I hope everybody takes a very, very close look at. So the power to negotiate with Foxconn that currently rests in a state department of administration, where it should be, where all contracts are entered into. In this bill, they never said this publicly. This is only coming out now. This is taken away from the public employee at the Department of Administration under the direction of the governor and turned over to the Economic Development Board, which is sort of a quasi-government operation that is not under the control of the legislature, according to these people, for the next nine months. Now, you got to wonder, why is that? Why do they not want a new governor actually taking a look at what that whole contract is with Foxconn? That’s one example. But there are many others in here that are just — they’re just bothersome. They are just an attempt by the legislature to try to run the government. They’ve missed the basic premise, which is the legislature passes laws. They’re the legislative branch. You learn this in 4th grade in Wisconsin. The legislative branch passes the laws and when it comes to carrying out the operations of the government, that’s why it’s called the executive branch. That’s who executes the laws. And they are obviously in many of these areas trying to be the ones to execute the law in place of the governor. You know, I was a Democratic attorney general for all 12 of my years there, with first Governor Thompson, then Governor McCallum, two Republican governors. They got mad at me from time to time. Never once for a period of time Governor Thompson had an entirely Republican legislature. He got really mad at me at times. We had some big political battles. Never once did he ever go to the legislature and say, “Take the power away from the attorney general.” This is a whole new way of approaching government.

Zac Schultz:
Speaking of attorney generals, some of this gives the legislature oversight over the attorney general’s ability to settle or negotiate lawsuits. You were involved in the tobacco lawsuits. Could you have done that with the legislature behind you?

Jim Doyle:
No, you couldn’t. How do you sit down and settle with another party? The tobacco lawsuit was the biggest lawsuit in the history of the United States. We had to negotiate a settlement that was in the tens of billions of dollars. And then say, now I have to take that over to the legislature, where the tobacco companies can come in and give them all their campaign contributions and make it a big political settlement. The other thing that really — I don’t think they’ve thought through. Most settlements by the attorney general are for the — the court directs where the money goes. The settlement isn’t just, “attorney general go decide what you want to do.” It is “these people have been defrauded or harmed in some way, the environment has been violated in some way and under this settlement, you have to do — you have to pay the money here.” So there’s another real separation of powers. No court is going to say, “Oh, we’re not going to issue an order. You go over to the Wisconsin legislature and find out where the money should go.” These are court decisions that get made and these settlements are court decisions. And there’s no court in the land that’s going to accept this. What will really happen is Wisconsin will get excluded from those big multistate attorney general cases? There’s a major one right now on opioids that I think all the states or 49 of the 50 states are part of. If Wisconsin has some kind of weird thing where they can’t really enter into the settlement, they’re going to be — they’re not going to be part of that. So it’s going to be the citizens of Wisconsin that really get hurt.

Zac Schultz:
Now, this bill changes how laws are defended and who defends them if they are challenged as unconstitutional. So this law will be in place when it’s challenged. So then will the legislature be defending another law? And if the law is suspended while it goes through the court system, do we go back to the old system of who defends it? It’s really confusing as to how this plays out.

Jim Doyle:
Can you imagine how Wisconsin is going to look in a courtroom when this all unfolds? You’ve just asked all the obvious questions that are gonna — like who’s here, why. The judge is going to want to know, who are you representing? The state of Wisconsin. Who are you representing? The state of Wisconsin. You mean the state — the state can’t sue itself. The state has to have a legal position. And in Wisconsin, since the inception of the state and the state constitution, it has been the attorney general that sets forth the legal position of the state of Wisconsin.

Zac Schultz:
So what are your hopes for what Governor-elect Tony Evers can do?

Jim Doyle:
Well, I think on most of — this is all going to be just a hassle. It’s just intended to distract him. Because the vast powers of the governor are in the constitution. And much as these guys would like to probably just eliminate the office of governor, they can’t do that. So Tony Evers will be in charge of the state agencies. He will be in charge of the cabinet secretaries. He will make the appointments to the boards. He will have an incredibly strong line item veto. Many of these legislators, many of them were there when I was there, so they’ve had some experience in two-party governance which can work. It worked in my time. We had our fights. But you know, you got through them. The governor did this, legislature did that. That’s what — they’re just going to have to learn to adjust to the fact that many of these legislators that have never been there when there’s been a Democratic governor have to learn there’s another side to this. For example, they aren’t going to be able to just write a gerrymandered reapportionment map in two years that says you can get — Democrats get 54% of the votes for the state Assembly, but only get 36% of the seats. That won’t happen because now there’s a governor that has to sign off on that map. So now we’re going to have a much more balanced approach to government.

Zac Schultz:
We’ve only got a few seconds left but I want to address severability, the idea that if a judge or a court rules that part of this violates the constitution, do you think they’d throw out the entire bill or just portions of it?

Jim Doyle:
This is just — I would think if some aspects are constitutional, they would keep those, because this is such a hodgepodge. Generally with severability, you can’t take out one part if that affects the whole bill. Here if there’s some of these things you could take out. I mean, you could say you can’t let the legislature take over the contracting of the state and you can keep other portions. I haven’t seen many of these that I think are constitutional. But you could sever them.

Zac Schultz:
Governor Jim Doyle, thanks for your time today.