Banana Republic Politics

Just 24 hours after Tony Evers election as Wisconsin governor, Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald “threatened to take power away from him even before he is sworn in,” as the Journal Sentinel reported.

This threat by Wisconsin’s Republican leaders is reminiscent of actions in  North Carolina. One similarity is that the North Carolina General Assembly, like Wisconsin’s, has been heavily gerrymandered to favor Republicans.

Following the election of Democratic governor Roy Cooper in 2017, the Republican-dominated North Carolina assembly has been in an ongoing battle to reduce his powers. Two of these efforts appeared on this month’s ballot as constitutional amendments. One would have severely limited the governor’s role in filling judicial vacancies that occur between judicial elections. The second amendment would have removed the governor’s power to make appointments to the Bipartisan State Board of Ethics and Elections Enforcement.

North Carolina voters overwhelmingly rejected both amendments. Since North Carolina, like Wisconsin, is a purple state, this result suggests that many Republican voters were offended by the argument that a different set of laws should apply to Democrats than Republicans.

Similarly, Vos and Fitzgerald are suggesting that the wisdom of a law depends on who is governor. This runs counter to the bedrock American principle that we are a government of laws, not of people.

Neither Vos nor Fitzgerald are specific about what laws they are thinking of changing in the upcoming “lame duck” session. However, from the context it appears that they have in mind the “Regulations from the Executive in Need of Scrutiny” or “REINS” Act, which was passed in 2017. This act required state agencies to submit proposed rules to the governor for approval. The governor, in his or her discretion, could approve or reject the proposed rule. Without the governor’s approval, the rule could not be submitted to the legislature for review.

As applied to the Department of Public Instruction, this would have given the governor veto power over any regulations coming from the DPI. This is not the first time such an attempt was made.

In 1995, the legislature, with the encouragement of Governor Tommy Thompson, set up a new state Department of Education. Here is how the Wisconsin Supreme Court described it in Thompson v. Craney:

… parts of 1995 Wis. Act 27, the budget bill, … created a state Education Commission, a state Department of Education (DOE), and the position of state Secretary of Education (SOE). By this act, the non-partisan elected state Superintendent of Public Instruction (SPI) is made the chair and a member of the new Education Commission.

The court did not buy it:

We conclude that 1995 Wis. Act 27 unconstitutionally gives the former powers of the elected state Superintendent of Public Instruction to appointed “other officers” at the state level who are not subordinate to the superintendent. We therefore hold the education provisions of 1995 Wis. Act 27 void.

Twenty years after the Craney decision, in Coyne v. Walker, the Supreme Court upheld an appeals court decision that a 2011 law that would have allowed the governor to veto regulations from the DPI was

unconstitutional as applied to the Superintendent of Public Instruction (“SPI”) and the Department of Public Instruction (“DPI”). Among other things, Act 21 … now allows the Governor (and in some instances the Secretary of Administration) to permanently halt the rulemaking process. The circuit court concluded that Act 21 is unconstitutional as applied to the SPI because it gives superior authority over public instruction to officers who are not subordinate to the SPI.

Despite these decisions, the same issues resurfaced in a case called Kristi Koschkee v. Tony Evers. It might more accurately be called “WILL v. Tony Evers,” since the impetus seems to come from the Wisconsin Institute for Law and Liberty. One obvious question is why re-litigate the same issues that were supposedly settled by Coyne v. Walker. Apparently WILL hoped that turnover on the state Supreme Court will result in a different outcome.

Here is how the WILL brief describes the REIN act:

the legislature directed all state agencies, when exercising their legislatively-delegated authority to promulgate administrative rules, to submit information about those rules first to the Department of Administration (“DOA”), an executive-branch agency, and then to the Chief Executive, the governor, for his or her approval. … Rulemaking may not proceed until approved by the Governor, and the final rule may not be submitted to the legislature or implemented without gubernatorial approval.

WILL argues that the state constitution:

makes clear that the only powers the Superintendent has are those given by the legislature. … Thus, the legislature may impose whatever procedural safeguards it desires on the exercise of rulemaking authority by DPI and the Superintendent. …

The WILL argument goes on to assert that the constitution:

grants full authority to the legislature to devise a system of supervision of public instruction as it sees fit.

This last statement seems contrary to the intention of the authors of the Wisconsin constitution. While they gave wide latitude to the legislature, they clearly expected that the state superintendent would have primary responsibility for the supervision of public instruction. If, instead, the legislature could make the governor the ultimate authority, there would have been little reason to write the office of state superintendent into the constitution. Making the superintendent report to the governor goes well beyond what the authors of the constitution envisioned.

Effectively, what both WILL and the Republican legislators were attempting to do is amend the constitution without the hassle of the actual amendment process—and the risk that voters will reject the amendment.

The Koschkee case has had some weird twists and turns. Perhaps the most bizarre was the argument by the Department of Justice and Governor Walker that DOJ attorneys should represent Evers, even though they disagreed with Evers’s position. A majority of the state Supreme Court disagreed and allowed DPI to be represented by its own attorneys. Disturbingly three justices–Rebecca Bradley, Michael Gableman, and Daniel Kelly—disagreed and argued vociferously that Evers should be represented by attorneys intent on sabotaging his position. While Gableman has since left the court, the continued presence of the other two should give pause to anyone concerned about the quality of justice in Wisconsin.

Like their North Carolina counterparts, Vos and Fitzgerald are showing just how tenuous their commitment is to one of the basic principles of democracy: that laws should apply equally to everyone. In their view, a law that allows a Republican governor to veto policies from a Democratic school superintendent is good until a Democrat becomes governor.

It will be interesting to see if WILL makes the same switch. WILL generally (but not always) aligns with Republicans. Much of its argument echoes a theme increasingly common on the right-wing legal establishment, that there are only three legitimate governmental bodies (executive, legislative, and judicial). In this view, anything else—such as the DPI or a regulatory agency—is illegitimate.

But the authors of the state constitution established other elected officials–Secretary of State and Treasurer—who were also independent of the governor. Over the years, their responsibilities were severely reduced. Perhaps this would be a good time to review why the constitutional authors decided these officials should be independent, whether those reasons are still valid, and which, if any, of those responsibilities should be restored.

Vos and Fitzgerald have effectively demonstrated that banana republic politics are alive and well in Wisconsin. That said, if the end result is to kill the REINS act, we may get a correct result but for the wrong reason.