Marisa Wojcik:
Welcome to Noon Wednesday, I’m Marisa Wojcik, a multimedia journalist with Here & Now on Wisconsin Public Television. The Wisconsin state legislature just got out of session this morning, and they passed a series of bills that including will limit the power of the incoming governor, Tony Evers. Among a bunch of other things that many have called unprecedented. So here to talk with us about what happened and what this means going forward is Mike Wagner. He’s a UW Madison professor of journalism and media, and Mike thanks so much for being here.
Mike Wagner:
It’s my pleasure.
Marisa Wojcik:
So let’s start by just talking a little bit about what did pass, so the big thing is that some of Governor-elect Evers’ powers are going to be a little bit diminished based on, and then given over to the legislature, right?
Mike Wagner:
Right, I would say one of the big things with respect to the campaign promises that Governor-elect Evers and Attorney General-elect Kaul made was that the governor and the attorney general can no longer pull out of a federal lawsuit that the state might be involved in without state legislative approval. And so what that’s about is the Affordable Care Act. Governor-elect Evers and Attorney General-elect Kaul both campaigned on the promise to do that. They both one state-wide elections and now won’t be able to do that given the passing of this legislation.
Marisa Wojcik:
There are some other things like Evers can’t appoint as many people to the Wisconsin Economic Development Corporation Board.
Mike Wagner:
He’s prevented from doing that and prevented from having a say about the CEO for at least a year is my understanding. Although it’s hard to catch up on everything that’s happened since it happened over night.
Marisa Wojcik:
And Attorney General-elect Josh Kaul might potentially be with private attorneys in terms of–
Mike Wagner:
The state legislature could decide to hire private attorneys at tax payer expense to work either with, or I’m not exactly sure, opposing Attorney General Kaul, who is also of course funded at tax payer expense. And so if the state legislature wants to hire outside counsel and have us pay for it, they can do that. They originally wanted to bypass the attorney general altogether if they so chose, but that did not pass. And so there is kind of an ill-defined as far as I can tell at this time, way for the attorney general to work with whoever these outside counsel might be in the event that the state legislature decides to hire them in particular lawsuits.
Marisa Wojcik:
And some big things that didn’t pass. Moving the 2020 presidential primary election. That was going to cost the state up to $7 million. That didn’t go through. Protecting pre-existing conditions?
Mike Wagner:
That was something the Republicans, especially Governor Walker campaigned on. Walker promised and made a big deal out of the promise in the waning days of the election that he would protect pre-existing conditions. That’s partially because voters in the state really wanted that to happen. A survey that my colleagues and I did in the School of Journalism and Mass Communication of about 2000 Wisconsin voters, weekend before the election, found that voters who had been supportive of Governor Walker in the past, but were moving to Tony Evers in this election, were largely doing so on the basis of their support for the Affordable Care Act. They agreed with Governor Walker on taxes, they agreed with Governor Walker on other kinds of issues, but it was the Affordable Care Act specifically that seemed to be the issue where they disagreed with the governor.
Marisa Wojcik:
And my understanding is that Democrats didn’t pass this pre-existing conditions because it didn’t go far enough and then Republicans said that it went too far, so it just, no one could agree on this.
Mike Wagner:
There wasn’t an ability to get a bipartisan agreement and I think you characterize it accurately.
Marisa Wojcik:
And then Kimberly-Clark incentive package was the original reason–
Mike Wagner:
That’s why we were here.
Marisa Wojcik:
Why this session was called and we didn’t see any legislation regarding that, did we?
Mike Wagner:
No, I guess there wasn’t enough support within the Republican caucuses to make that happen, but there was enough support to do these other things.
Marisa Wojcik:
So the way that this unraveled yesterday was a little bit odd. So the Senate was supposed to be in session at 11 a.m. They didn’t go into session until about two or three p.m. And then the Assembly didn’t go into session until even later in the evening, and they were supposed to go in at one p.m. And then a lot of this stuff happened after dark, late into the night.
Mike Wagner:
And off the floor.
Marisa Wojcik:
And off the floor.
Mike Wagner:
Away from public view.
Marisa Wojcik:
So when I was in the Senate around 4:30, five o’clock often some GOP leaders would be not even in the room, even as they were in session. Is that normal?
Mike Wagner:
It’s normal for parties to caucus within their own respective party and try to persuade each other to vote for something or vote against something, or to persuade their colleagues for a particular amendment or to figure out what is it going to take to get you on board with this to pass this. That stuff happens, and it clearly happened yesterday as, I think there was a one vote margin for some of these measures in the State Senate. A much larger margin in the Assembly. So it’s common to have that happen, it’s uncommon for 140 pages of legislation to be introduced on Friday and then overnight a couple of days later have private conversations and no public conversations and not have the people who wrote the legislation even testify in the first place before all of this stuff happens. All of that is extraordinarily uncommon. Not to say it never happens, but it’s really uncommon. And that it happened in the lame duck session, and that it happened to change the job description of the governor and the attorney general between Election Day and inauguration day is unprecedented.
Marisa Wojcik:
Mm-hmm. And unprecedented is an interesting word because during the Joint Finance Committee hearing the Legislative Reference Bureau did confirm that removing these powers during a lame duck session truly is unprecedented, this has never happened before.
Mike Wagner:
That’s right, it hasn’t happened. And the reason that it hasn’t happened is that democracy is more fragile than we think. It relies on the rule of law and the endorsement of different kinds of norms. There’s no rule as far as I’m aware that says, the state legislature cannot take away powers from the governor between Election Day and inauguration day. They’re in a session, they’re in session, that appears to be legal, although there is going to be litigation about this, especially with respect to the attorney general stuff, which I’m not sure if that’s legal. But the norms of democracy are if you lose an election, you don’t change all of the rules between Election Day and inauguration day. You live to fight for the next election. Democracy is for losers, and what I mean by that is that if you don’t win the election, there’s always another one. And it’s your job to persuade voters, with reason, with arguments, with evidence, with the situations that are happening in the state with the economy or education, or health care or whatever, to persuade people to vote for you. It’s not to say, we lost the election and so we’re going to change all of the rules to make things easier on us because we lost. That’s how democracies die. There’s literally a book called How Democracies Die and the erosion of norms like this is one of the major causes of the death of democracies, it’s something to worry about.
Marisa Wojcik:
Assembly Speaker Robin Vos, Senate Majority Leader Scott Fitzgerald, repeatedly during press conferences have called what was in these bills inside baseball. They said these are kind of just boring, codifying, basically cementing rules that already were followed by the previous, or by the current, soon to be previous administration. And that Vos for a long time says that he has been a proponent of reducing the powers of the executive branch in Wisconsin and that they should go to the legislature because they’re closer to the people that they’re representing. Is there validity in that argument to you?
Mike Wagner:
It’s the case that legislatures around the country, and our U.S. congress over the past half-decade, or half century or so have given some of their powers to the executive, whether the executive’s the president in the case of Congress, or the governor in the case of states. And so that has happened in places. What’s disingenuous about the Speaker’s argument is that he’s had a unified government for quite a long time. If he was serious about doing any of this he could have done it before his side lost the election. The reason this is happening now is that a Democrat is coming into office, and the reason we know that is that the Senate majority leader said, we don’t trust Tony Evers and that’s why we’re doing this. And the reason we, another reason we know that is that Speaker Vos himself said, we’re doing this to make things, to enable us to expand our power in the state legislature. And so it’s not that its uncommon for legislatures to have given power to the executive and regret it, or even try to take it back sometimes. That’s not uncommon, that’s not unusual. But doing it in a lame duck session between Election Day and Inauguration Day is really unusual.
Marisa Wojcik:
There was a moment in the Senate yesterday when it was the first order of business that they took up was all of these appointees. And Democrats were concerned they weren’t seeing the Statements of Economic Interest. And Kathleen Vinehout mentioned that, she stated a specific statute in which if they don’t have these Statements of Economic Interest it might not even be legal for them to be passing these appointees. So how much of some of the things that happened were legal and are going to stay, and how much because they did it it’s now no longer reversible.
Mike Wagner:
I would say the most honest answer I can give is I don’t know. It’s the case that we should expect litigation about a lot of this stuff. I would not at all be surprised if there’s a lawsuit that says, the people who were appointed without having filled out the proper paperwork and had it duly reviewed by the legislature, ought not be in those positions. And so it could be that a court will say, yep they didn’t follow the law, those people are out. Or it could be that the court says, well the governor has the power to do this, the state legislature could have voted no, and they voted yes. I’m not sure which way a court or a set of courts, depending upon the appeals process, might go. And so I wouldn’t be surprised to see litigation but I am not in the business of predicting how that would turn out.
Marisa Wojcik:
And Robin Vos in a press conference yesterday said, I wouldn’t be surprised to see litigation either. That’s the prerogative of whoever wants to take that up, but then we get into tax payer money and time and it could get a little bit messy.
Mike Wagner:
It could get messy, it could get expensive, and it’s something that is really unfortunate. Most of these things I think didn’t have a pressing need to happen during the lame duck session. Usually these are, they’re called extraordinary sessions because something crucial needs to be addressed right now. And so the Kimberly-Clark thing was that kind of policy problem. Does the legislature want to invest state resources in kind of building up that company so that they will stay? People can disagree about that, they clearly did in the state, but that’s an extraordinary thing where there was a time clock, it was going to explode, they had to deal with it one way or the other. What the job of the governor is or what the job of the attorney general is was under no pressing time commitment. The only pressing time commitment was political because the party of which those offices were held by was about to change.
Marisa Wojcik:
You’ve compared this to changing the rules of football. What do you mean by that?
Mike Wagner:
So I think a good analogy for what’s happening is to imagine that the Green Bay Packers defense recovers a fumble. So next Sunday I think they play Atlanta, so let’s imagine they recover a fumble from the Atlanta Falcons, and as Aaron Rodgers is jogging on the field the Falcons immediately petition the NFL. They call a timeout, they say, we’re going to try to change the NFL rule so that there is no forward pass. Because when Aaron Rodgers throws forward passes, we’re at a disadvantage because he’s a really good quarterback. That’s what’s happening in Wisconsin. There was an election, the ball is changing hands in the governor’s office and the attorney generals office to the Democratic Party. It’s staying in Republican hands in the majorities of the State Assembly and the State Senate. And the State Assembly and the State Senate are saying we want to change the rules of what it means to be governor before you take office. Before you take office to the attorney general as well.
Marisa Wojcik:
So what does this mean going forward, ’cause I could imagine a world in which maybe if the roles were reversed and we had a Republican governor in the future and a Democratic controlled legislature, the rules wouldn’t necessarily, you know, the laws wouldn’t be changed back. This is kind of how things are looking going forward unless litigation changes them.
Mike Wagner:
Yeah, there’s almost an infinite number of possibilities, right, the courts could undo this, the courts could undo part of it, the courts could say, all of this is just fine. And then the next big fight, the next really big fight that we can foresee, there might be other ones that we’re not aware of. But one that’s coming is redistricting. And so if the state legislature has to redraw the lines of who they represent, that’s probably going to help Democrats because currently they’re among the most gerrymandered districts for Republicans in the history of the republic, including all 50 states, since we’ve had a country. And so Republicans have a huge advantage in getting elected in terms of how district lines are drawn. If that changes, and Democrats somehow eke out a majority in the state legislature they could choose to be punitive and change all these rules back, or more. They could choose to say, well this is the way of things, we’re going to keep going forward, they could choose to do something in the middle, and your guess is as good as mine as for what would happen in that hypothetical situation of course. If that happened in the first place.
Marisa Wojcik:
Again, more of what Vos says is that this is trying to establish a more equal power between the branches.
Mike Wagner:
I don’t think that’s true.
Marisa Wojcik:
Was power unequal?
Mike Wagner:
Well power is shared by the branches of government and some branches have particular things that they are in charge of, whether it’s initiating budgets or making decisions about spending, or deciding whether something’s constitutional. And others are shared. And that’s a matter of perspective and that’s a matter of personal opinion as to whether the branches are equal in power precisely or whether that waxes and wanes. It’s different when the government is unified versus when the government is divided. It might vary by issue. It might be that for some issues moderates of one party side with the other and that helps the executive branch in the divided government case. There’s an infinite number of ways of thinking about it, but I think it’s disingenuous to say this was about restoring some kind of balance of power that had not been discussed as a problem until after the election.
Marisa Wojcik:
It’s interesting, you know, Governor Walker started his term with some protests, and he’s going out in his term with some protests. But the speed at which this happened, there weren’t as many people at the capitol as there might have been had this dragged on longer. Is the speed at which this happened, is that normal as well?
Mike Wagner:
It’s not normal, but it’s more normal in Wisconsin than it used to be. The Wisconsin Center for Investigative Journalism did a really great investigative report that found basically the speed of democracy in the Walker administration has increased rapidly. Which means the number of days from the time a bill is introduced to the time it’s voted on has gotten much more condensed. And there are a few ways to look at that. You could look at that and say, government’s more efficient under the Walker administration. Or you could look at that and say, there’s less time for public hearings, there’s less time for people’s voices to get heard. There’s less time for reporters to cover the story and find out what’s going on. There’s less time for deals and amendments to be made. There’s less time to do good governance, due diligence, and proper legislation. So there’s different ways to look at, but in Wisconsin, the speed of this stuff happens has greatly increased under Governor Walker, and the secrecy of it has increased under the Republican controlled legislatures.
Marisa Wojcik:
And that’s interesting, ’cause at the Joint Finance Committee hearing the chairman of the committee, Representative John Nygren, told Democrats that the more time that they spent asking the Legislative Fiscal Bureau and Reference Bureau questions was time taken away from public commentary. And normally there’s a separate hearing for each one.
Mike Wagner:
Right, that’s another disingenuous argument. Those things are independent of each other. The state legislature can set the rules for how long they want debate to go and how long they want questions to be able to be asked of the Fiscal Bureau and anyone else that they want testimony from. And so to say that you’re robbing Peter to pay Paul isn’t true in that situation.
Marisa Wojcik:
Does this mean that bipartisanship is going to be less and less of a reality in Wisconsin?
Mike Wagner:
It hasn’t been much of a reality for the past several years. And you know, and if you’re a Republican you might say, gee the Democrats left the state during the Act 10 debates and literally wouldn’t come to the legislature. And so there’s been partisan acrimony in the legislature for a long time. The Republicans in recent years have been especially punitive I think with what we’ve seen in this week as kind of a prime example of that. And I think that this suggests that we’re going to see increased partisan polarization, increased acrimonious contentious politics, increased fracturing of civil society and things that Wisconsin used to have a really good reputation for.
Marisa Wojcik:
Is that something that as a constituent that you can reach out and talk to your legislator about? Is that something that people have kind of the power to have an opinion on?
Mike Wagner:
It is. People tend to live right now in pretty gerrymandered districts and so the majority of people in each district are calling a lawmaker with whom they already agree. And, for example, I don’t live in Speaker Vos’s district but my wife called his office yesterday just to say she didn’t appreciate what was going on, and was told by the person on the phone well, Speaker Vos doesn’t represent you. And he’s the Speaker of the Assembly and represents the whole state, but to be told you’re not being represented because Speaker Vos was elected with about 16,700-some votes in his district. Which is typical, or actually pretty strong, in a state legislative race. But Governor Evers, Attorney General-elect Kaul, they won over a million votes. And so the will of the voters has been kind of subverted here and it’s being done in a way that offers voters a chance to express their voice, but they’re probably expressing that voice to a lawmaker who’s already on their side, and if they express it to a lawmaker who isn’t they probably don’t live in that lawmaker’s district which makes them less inclined to listen to what they say.
Marisa Wojcik:
So it’ll be interesting going forward. Wisconsin is being seen as a swing state for the presidential election in 2020, and it seems like the red and blue lines are getting sharper and sharper, so.
Mike Wagner:
In the last six years we’ve elected Barack Obama, Donald Trump, Tammy Baldwin, Ron Johnson, Scott Walker and Tony Evers.
Marisa Wojcik:
Very interesting, well thank you so much for joining us today and talking to us about this.
Mike Wagner:
My pleasure.
Marisa Wojcik:
If you want to see more from Here & Now and Wisconsin Public Television, visit wpt.org and thanks so much for joining us on Noon Wednesday.
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