Here & Now

WPR’s Laurel White on Dispute Between JFC and AG Kaul

Frederica Freyberg:

A first look tonight at the practical implications of the lame duck laws limiting the authority of the governor and the state attorney general as they came into full view last week. That’s when Attorney General Josh Kaul appeared before the Joint Finance Committee seeking to get approval, as required under the new law, to resolve or reach settlements in state lawsuits, of which there are some 15 awaiting JFC approval. The process broke down when legislators on the committee at first refused to sign confidentiality agreements. By week’s end, the Republican co-chairs of the JFC hired a lawyer to sign the secrecy order on the committee’s behalf and said they stood ready to approve any settlements that are in the state’s interest. All of this unfolding as Kaul told lawmakers he had a case of tremendous importance to the state that demanded quick attention. One possibility on that? Major pharmaceutical companies are reportedly in settlement talks with multi-state litigants related to the opioid crisis. Later in the week, Kaul’s office said a hurry-up deadline to act was no longer in play. Here’s what Republican co-chairs said about all of this late Thursday. “Despite the attorney general’s obvious efforts to undermine state law, the committee on Joint Finance has authorized counsel to sign the confidentiality agreement proposed by the attorney general. The attorney general’s demand is contrary to his prior practice, including when discussing settlements with the governor, and is an obvious effort to undermine the law by delaying the committee’s work.” For his part, Attorney General Kaul responded that, “We are assessing the co-chairs’ proposed confidentiality agreement. We will continue attempting to reach agreement on this issue, as we began attempting to do more than six months ago. Our interest remains in ensuring that Wisconsinites are represented as effectively as possible and that the enforcement of our environmental, consumer protection and other laws is not impeded by partisan gamesmanship.” Wisconsin Public Radio Capitol reporter Laurel White has covered this developing story and she joins us now from the state Capitol.

Laurel White:

Absolutely. Thanks for having me.

Frederica Freyberg:

So does this strike observers and reporters that Josh Kaul is pushing the partisan envelope to highlight his disfavor with the new rules?

Laurel White:

So I think it’s difficult for some folks to forget that Attorney General Kaul has been very vocal in his opposition to this law since it was passed. He’s talked about how it’s unconstitutional. He’s talked about how it gives lawmakers too much power over something the attorney journal in the past has seen sort of unilaterally control over. So lawmakers and others are kind of pointing to the attorney general highlighting some of these practical roadblocks as they may be related to that kind of overarching argument against the law in principle.

Frederica Freyberg:

And yet on the other side, could it be viewed as the opposite, that Republicans are playing the partisan power card?

Laurel White:

Republicans certainly have a lot of power in this scenario. They passed this law because of their strong majorities in both chambers of the state legislature and it’s the law of the land. The attorney general really doesn’t have a choice in whether or not he follows it unless of course the law is repealed or it’s struck down by a court.

Frederica Freyberg:

This could be the practical outcome really of rules that require Justice to get legislative approval to resolve cases which are dynamic, especially in the midst of settlement talks.

Laurel White:

Absolutely. We heard about the case this week. Actually the reason the committee was called in on such short notice was a tight deadline in a particular case. We know that particular deadline is gone now. But that’s not to say that another deadline might emerge in this case or a similar case or other cases down the road. So lawmakers and the attorney general certainly need to come up with a process for handling these lawsuits because they sometimes require quick action.

Frederica Freyberg:

Yeah. So if in this case the urgency is off, as the Justice Department now says, what’s left is for it to be determined whether a Republican lawyer can sign a confidentiality agreement on behalf of the committee members. What do we know about whether this passes muster?

Laurel White:

So we know that certainly Republican lawmakers that hired the private lawyer believe that this is going to be sufficient to meet the attorney general’s confidentiality requirements. We also know that a memo came out from the Legislative Reference Bureau, which is the legislature’s non-partisan research office that kind of calls that into question. So what we’re waiting for now is an official opinion from the attorney general, who of course has more information about the sort of binding legal agreements he’s entered into with the different parties that he’s negotiating settlement agreements. So whether or not he finds these — you know, this new provision from Republican lawmakers, this hiring of a private lawyer, sufficient to meet his needs.

Frederica Freyberg:

Yes. As you say, Attorney General Kaul says he’s now reviewing this situation, but it sounds like we’re going to see everything right back in Joint Finance, with maybe some of the same disputes.

Laurel White:

Absolutely. We know that, as you mentioned, Joint Finance is facing more than a dozen of these cases. There’s a backlog of cases waiting approval from lawmakers. Again another urgent deadline can emerge. These cases are very dynamic and sometimes move very quickly. So we could be back having the same conversation very soon.

Frederica Freyberg:

Meanwhile, the lame duck laws themselves are in the courts. What’s the status of those cases?

Laurel White:

So there are four lame duck lawsuits that are out there. Actually, one of them has already been resolved. A state-level lawsuit received a ruling from the Wisconsin Supreme Court earlier this summer. They ruled in favor of Republican lawmakers. There’s another state-level lawsuit that’s awaiting arguments in front of the Supreme Court. There are two federal cases that are both in stages of opinions being issued by judges any day. So we could hear on those soon.

Frederica Freyberg:

All right. Laurel White, thank you very much and thanks for your reporting on this.

Laurel White:

Absolutely. Thanks for having me.