The Senate’s Saturday Night Massacre

When Richard Nixon famously wanted to get rid of special prosecutor Archibald Cox, he lacked the legal authority to fire him directly. Instead, he ordered Eliot Richardson to fire him. When he refused, Nixon fired Richardson. Nixon then asked William Ruckelshaus to fire Cox. When he refused, Nixon fired Ruckelshaus. Finally, Robert Bork agreed to fire Cox.

The “Saturday Night Massacre” was an example of some of our nation’s worst possible political acts.

So too are the recent actions of the Wisconsin Senate and the Department of Justice in trying to force the removal Michael Haas as Administrator of the Wisconsin Elections Commission (WEC) through the appointed members of the WEC.

The WEC was established as an “Independent Agency” under the executive branch. It is comprised of three republican appointees and three democratic appointees. This bipartisan commission is tasked with appointing an interim administrator, who can then serve a 4 year term if the senate approves his or her permanent appointment. Only the WEC is given the power to remove either an interim or permanent administrator.

Vesting the appointment and removal power in the WEC makes sense – a vote of 4:2 is required to either appoint or remove, thereby creating bipartisan consensus in who should run elections. It removes the power to meddle in elections administration from the political arena – neither party can solely dictate how elections are run. Both parties must agree.

The Wisconsin Senate has turned this on its head.

For the past year and a half, the Senate ratified this appointment. By their silence, they agreed to permit his service and, for all intents and purposes, confirmed him. For what senate leadership admits are entirely political reasons, it decided to take a belated vote on confirmation without hearing or input from the WEC itself, voting against the appointment of Haas as permanent administrator.

More shocking, it then claimed that the WEC must now fire Haas from his position. This is wrong – the legislature does not have that power.

Only the WEC has the power to remove an administrator. And it has chosen not to. In an attempt to justify this unlawful political meddling, the Legislative Council issued a memo that attempts to entirely re-write the applicable law. It claims that an entirely separate statute should be added on to the WEC statute – arguing that because another statute explains what should happen when the senate does not approve an appointee, it should be appended to the WEC’s statute. This is truly a case of “rewriting” an entire statute.

This position flies in the face of not only the statute itself, but of the entire jurisprudence surrounding how we interpret statutes like these, and is patently wrong. A full explanation of that analysis can be found here, but in summary:

Wis. Stat. §15.61 states “The administrator may be removed by the affirmative vote of a majority of all members of the commission. . .” There is no other statutory mechanism in any other law to remove the interim administrator.

Further, that same law reads that the WEC shall be under the direction and supervision of an administrator, “appointed by a majority of the members of the commission, with the advice and consent of the senate.”

Finally, the key clause reads: “Until the senate has confirmed an appointment made under this subdivision, the elections commission shall be under the direction of an interim administrator selected by a majority of the members of the commission.”

In other words – only the WEC can remove an administrator. Until the senate confirms an appointee, they remain interim.

This common-sense reading of the statute should be what governs this analysis. Instead, the partisan Senate is attempting to do handsprings to add into the statute words that do not exist, interpretations that fly in the face of the bipartisan makeup of the commission, and trying to insert politics where it doesn’t belong.

The fair administration of elections is a non-partisan issue. Every eligible voter who wants to vote should get to vote and have their vote counted. The senate’s actions, by injecting its politics into election administration, should be called out for the “massacre” it is.

Ann S. Jacobs is a Milwaukee attorney and board member and vice-chair of the Wisconsin Elections Commission