Zac Schultz:
Good evening. I’m Zac Schultz. Frederica Freyberg is on assignment. Tonight on “Here & Now,” we’ll examine the lame duck action taken at the Capitol this week with legislative leaders and former Governor and Attorney General Jim Doyle talks about what these changes would mean. It’s “Here & Now” for December 7th.

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Zac Schultz:
Republicans in the legislature passed three bills this week that include hundreds of changes to state law, much of it shifting power and oversight from the governor and attorney general to the legislature. And depending on your perspective, it either threatens the fabric of our democracy or it’s no big deal. Here & Now’s Marisa Wojcik reports.

Marisa Wojcik:
It began around 4:00 p.m. last Friday, when Republican lawmakers quietly released a package of bills. It ended around 8:00 a.m. Wednesday morning when lawmakers passed most of the legislation during a lame duck extraordinary session. Among the measures put forth, the biggest is the channeling of powers away from the governor’s office and the state attorney general and giving them to the state legislature.

Chris Taylor:
The public deserves to know that this is unprecedented.

Marisa Wojcik:
The actions have been criticized as bad politics over good policy, especially just weeks away from the inauguration of Democratic Governor-elect Tony Evers and Attorney General-elect Josh Kaul. The bill’s architects, Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, said the state’s executive office has had too much power and down played the move.

Robin Vos:
And a lot of these issues are kind of inside baseball. But if you are in the legislature and you are in the executive branch, you want to make sure that the two are equal.

Marisa Wojcik:
On Monday during the only hearing for the bills, protestors hovered as the Joint Finance Committee split time between members asking questions and public commentary.

Jon Erpenbach:
So you’re saying if we ask questions, they can’t or can’t testify?

John Nygren:
Well I realize that takes away time from the public.

Marisa Wojcik:
Tuesday, the legislature was called into session. Negotiations ensued throughout the night, behind closed doors and without Democratic input.

Jennifer Shilling:
Leading to this unprecedented.

Marisa Wojcik:
By Wednesday morning, it was over. A sweeping number of proposals were approved, largely along party lines.

Zac Schultz:
The extraordinary session also took power away from the governor over the Wisconsin Economic Development Corporation. The Republican leaders will be able to appoint more members to the board and therefore control who becomes chair of the board and pick the CEO of the WEDC until September of next year, at which point Governor-elect Evers would pick his own CEO, but the board makeup would become even between Republican and Democratic nominees, thereby keeping the Republican’s choice for chairman in place. We spoke with Mark Hogan, the current CEO of the WEDC earlier this week. While his predecessors at the agency both joined a statement saying the changes will hurt Wisconsins economy by eliminating trust between governor and the agency, Hogan says it’s no big deal.

Mark Hogan:
Why does any of this need to be so difficult? Honestly I think people make it more difficult sometimes than what it needs to be. I’ve worked with different people in the banking industry over a long period of time. So Im very confident that if Im the person, whoever, is working at WEDC as the CEO, that person will be able to work with Governor-elect Evers and his team. And his cabinet team as well.

Zac Schultz:
We also caught up with Governor Scott Walker last Monday at the Governor’s mansion. Walker says Governor-elect Evers should have no issues with the changes to the WEDC.

Scott Walker:
In that case, you’ve got a governor-elect who says he wants to wipe it out. So if he goes forward, I don’t know why he cares one way or another. He wants to advocate for eliminating the agency entirely. There are people in the legislature, both Republican and Democrat, who in the past at least, have expressed their support for it and suggested they want to make some changes on it.

Zac Schultz:
After the whirlwind extraordinary session, Assembly Speaker Robin Vos said Republicans didn’t get a fair opportunity to tell the public what the bill does outside the media. Joining us now from Green Bay to talk about what the bill does is Representative John Nygren, co-chair of the Joint Finance Committee who joins us from Green Bay. Thanks for your time today.

John Nygren:
Good afternoon Zac. Good to be with you.

Zac Schultz:
Now the full language of the extraordinary session bills weren’t available until late last Friday. You held a hearing on Monday, floor on Tuesday, voted Wednesday. If you wanted more time to talk about the bills to the public, why didn’t you slow down the process?

John Nygren:
Well, I mean, I think that is a fair recap of the way things happened. I just don’t know that that’s outside the normal legislative process, especially when you’re dealing with Joint Finance. When they do go through Joint Finance, the amount of research and information that is provided by Legislative Fiscal Bureau, Im not sure that any bill that goes through that process hasn’t been properly vetted. So regardless of whether we got a fair shot in the media or not, I believe these bills were properly vetted.

Zac Schultz:
Youve described this as rebalancing the power between the governor and the legislature. Most of the changes in this bill give the legislature more oversight on things like administrative rules, gubernatorial appointments, changes to state and federal programs. Is this the legislature’s version of the veto?

John Nygren:
I think what this is, you mentioned rebalancing of power. Some of these things, I believe 24 of the 35 different measures, were either already acted on by the legislature. I know a number of them were in the state budget. They were either codifying existing practice. They’re addressing federal or state court action or, as you said, providing some type of legislative oversight over administrative action. I don’t know that I would call it a veto, but this is the role of the legislature. And Tony Evers has committed to working with the Republican legislature. This gives us a fair shot to actually do that in a balanced way. He comes in with a great deal of power, especially when you look at the veto pen that he has. One of the most powerful in the nation. I guess our view moving forward, we didn’t address that veto authority at all in this special session. What we’re looking at moving forward is should bills that have passed the legislature, both houses, signed into law by the governor, should an incoming governor have the ability to undo those with a stroke of the pen and we don’t believe so.

Zac Schultz:
Now, there’s a change in here that says the Joint Committee on the Review of Administrative Rules can now suspend rules created by state agencies multiple times even if the legislature doesn’t pass a law to override the rule. So essentially this committee run by legislative leaders can permanently suspend agency rules? Is that accurate?

John Nygren:
I believe that is accurate. But just remember why the administrative rule process exists. It exists to address laws that have been passed by the legislature to address other statutes that it might apply to, et cetera, to make them work within the administrative process. Legislative intent has to be an important part of that conversation. We’ve experienced a number of cases over the years where the administrative rules and the legislative intent are nowhere near what where they should be.

Zac Schultz:
Now, another part of the bill deals with the WEDC and the final version of the bill keeps Republicans in control of the agency until next September. Only then can Tony Evers select his own CEO. Why that time line?

John Nygren:
I think that’s for continuity. I mean there’s a number of contracts that are pending as we speak or being worked on as we speak. Tony Evers has kind of taken a hostile approach to WEDC, even though in my area of the state has been widely successful. So he’s going to have his opportunity, his day, to be in charge of making that appointment. But in the meantime, as we work through these contracts that are pending, we thought there should be some continuity.

Zac Schultz:
Now, WEDC has oversight on the Foxconn deal. What’s in the works between Foxconn and the state legislature between now and September that you wouldn’t want Governor Evers to be able to alter or change?

John Nygren:
I’m personally not aware of any type of conversations going on between those two entities. I do know — I believe I saw on the news today that Governor Walker mentioned that WEDC is working with Kimberly-Clark. Kimberly-Clark, a company that has a facility in my hometown of Marinette. Of course, I want to see Kimberly-Clark stay in Wisconsin. That’s a perfect example of how that continuity of relationships and positions need to continue between now and when Governor Evers takes office.

Zac Schultz:
Another big set of changes has to do with the legislative authority over the attorney general. Essentially Josh Kaul won’t be able to pull out of the federal lawsuit threatening the Affordable Care Act and he can’t even settle a case without the legislature’s consent. Is that a separation of powers issue? Do you think that will be subject to a lawsuit?

John Nygren:
Well, I wouldn’t be surprised if there’s lawsuits involved with these changes. Yet I would say something that kind of took me by surprise is there are no constitutional powers given to the AG. The only powers that are given to the attorney general’s office are given to them by the legislature. So having us be involved in those conversations I believe is completely appropriate.

Zac Schultz:
Now, a few years ago, the legislature tried to require gubernatorial approval of agency rules created by Tony Evers when he was superintendent of public instruction. The Supreme Court stuck that down because he’s a constitutionally-elected official. Is that a similar parallel to the attorney general? Do you think that will be at the heart of any lawsuit?

John Nygren:
Well I mean, I think — we, the action on the — dealing with DPI, we basically left current law in place. I think we’ll let the court case play out and see where it goes. But I do believe that giving Tony Evers the same expectations for when it comes to dealing with his Department of Public Instruction as we gave to Scott Walker is completely appropriate.

Zac Schultz:
All right. Representative Nygren, thank you for your time today.

John Nygren:
Always good to be with you Zac. Thank you. Have a good weekend.

Zac Schultz:
For the Democratic response, we turn to Senate Minority Leader Jennifer Shilling, who joins us from La Crosse. Senator Shilling, thanks for your time today.

Jennifer Shilling:
Thank you.

Zac Schultz:
Now, I was at the Capitol this week and in talking with legislators and protestors, it felt a little bit like an Act 10 reprise, a quieter book end to the Scott Walker era.

Jennifer Shilling:
It did have some of those same elements and brought back those memories from that experience.

Zac Schultz:
Now, Republicans are calling this a rebalance of power or oversight, but it almost feels like a legislative veto power over the governor. Do you agree and will that lead to gridlock in the next session?

Jennifer Shilling:
Really we were expected to be in special session, in extraordinary session, to take up tax incentive, economic development package for Kimberly-Clark. That was the reason we were called back into extraordinary session. That never happened. On the Friday night before we were supposed to convene on Tuesday, the majority party dropped a 141-page bill with many changes to the current oversight and exchange of powers within the three branches. So it certainly was a bait and switch that the Republicans lost the November election, for the governor’s and attorney general’s office and on the way out the door, they want to undermine the incoming Democratic administration.

Zac Schultz:
Now, Democrats obviously hope to retake the state Senate one day. Perhaps there will be a Republican governor at that time. If you were to be a majority leader in the Senate, would you like some of these oversight powers?

Jennifer Shilling:
I think we need to make sure that we keep the will of the people here in the heart of this discussion. And we talk about the cordial transfer of power between administrations and what Robin Vos and Scott Fitzgerald and Republicans are doing at the 11th hour are stripping away powers from an incoming Democratic administration and attorney general and consolidating powers into the legislature, which they still control. And so I think it is — it’s blatant power grab. It is something that was rejected on November 6 in the election. And that the people of Wisconsin want us to work together. They voted for a new direction and new administration with Governor-elect Tony Evers. And what Republicans are doing are undermining the incoming governor’s ability to follow through on some of the campaign ideas he talked about and are again consolidating power within the legislature and the Joint Finance Committee in the future.

Zac Schultz:
But if you were Senate majority leader one day, wouldn’t you like to use some of these powers? Or if you had been Senate majority leader when Scott Walker was governor, could you imagine using some of these powers to hold him in check?

Jennifer Shilling:
Again, we’ve talked about that they are in denial and a defiant act as really the outgoing Republican administration has a few weeks left. And, again, talking about the validating the elections, we would never be doing this had Scott Walker and Brad Schimel been re-elected. I find it hard to believe that in the eight years that they had worked with Governor Walker that now at the 11th hour, they think, ‘Oh, this would be a good idea that we should move forward in the next spring to work with him to talk about the oversight and feeling that there’s an over-reach of the executive branch.’

Zac Schultz:
This last year, Democrats picked up two seats in the Senate through special elections. Even though Caleb Frostman lost in November, he was on the floor this week. How important was his vote, especially considering one of these bills only passed by one. If he had not been there, do you think there would have been more of the original proposals that made it through the Senate?

Jennifer Shilling:
I think it was very important that Senator Caleb Frostman was there on the floor. Earlier this year, the Republicans and the governor did not want to call for a special election. We had to go to court to have that special election happen. And in fact, we argued that the people of the First Senate District should be represented throughout the year. Had that not happened, they would have gone over a year without representation. So it was important that Senator Caleb Frostman — he listened to his constituents. He represented them, came down to Madison, spoke on the floor about his concern about this bill as it is really undermining an incoming administration of a different political party.

Zac Schultz:
The Senate failed to pass the two bills, one being the Kimberly-Clark tax credits you mentioned. Another that would have dealt with pre-existing conditions in the Affordable Care Act. Both of those failed because Republicans didn’t have enough votes to pass them on their own. If those bills come back with Tony Evers as governor, would you imagine the Senate Democrats being around to negotiate a better version of them?

Jennifer Shilling:
Well, it is true, come January 7, that Democrats will have additional leverage with a Democratic governor and the veto pen, the power of the veto pen. So it really does force Democrats and Republicans to work together. I have spoken about we now find ourselves in an arranged marriage in the legislature, that both parties won. Democrats control the governor’s office. Republicans retain control of the legislature. We both need each other in order to get things done. Republicans need Democratic support in order for the governor to sign legislation. And Democrats need Republican support in order for our bills to get through the legislature and ultimately to the governor’s desk.

Zac Schultz:
All right. Senator Shilling in La Crosse, thanks for your time today.

Jennifer Shilling:
Thank you.

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. That is our program for this week. I’m Zac Schultz. Have a good weekend.

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Funding for “Here & Now” is provided, in part, by Friends of Wisconsin Public Television.