The Republican ‘Statutory Scheme’

Scott Walker, Robin Vos and Scott Fitzgerald.

It was back in the spring of 2018 that then-Gov. Scott Walker, Assembly Speaker Robin Vos and then-Senate Majority Leader Scott Fitzgerald began privately meeting to craft laws that would frustrate the will of the voters, should they have the temerity to elect Democrats to top state positions. After liberal Rebecca Dallet won election to the state Supreme Court in April 2018, Walker warned Republicans that a blue wave could be coming in November.

Sure enough, a wave of voters demanding change elected Democrats Tony Evers as governor and Josh Kaul as attorney general. And the Republican-controlled Legislature soon went into action, passing bills Walker signed that became known as the “lame duck laws,” which gave the Legislature unprecedented powers over the governor and attorney general. Much has been written about this since then, with Evers and Kaul fighting in court to overturn these laws, but a little-noticed provision also gave the legislative leaders extraordinary power to hire private attorneys paid for by taxpayers.

A recent lawsuit filed by the liberal firm Law Forward charges that this practice is illegal, calling it a “statutory scheme” that violates the Wisconsin Constitution. The suit also exposes in great detail how Republicans created this legislation, presumably with the aid of GOP-friendly lawyers.

The law’s provisions created “an unlimited pool of taxpayer money that the Assembly and Senate can spend” on legal expenses, the suit noted, which can be appropriated not through the normal process, by a majority vote of both houses of the Legislature, which is then signed by the governor, but by “legislative leaders or either of the Co-Chairs of JCLO” (the Joint Committee on Legislative Operations), who can “unilaterally determine when, how, and how much taxpayer money can be transferred to private law firms for such litigation.”

In short, Republicans created a bottomless slush fund to hire private attorneys whenever they wanted.

These expenditures “violate the Wisconsin Constitution because they are irregular appropriations that circumvent the prescribed lawmaking process including presentment to the Governor, elude proper legislative debate and deliberation, and are deliberately shielded from transparency to the public. This not only violates the Constitution’s prescribed process for appropriating public monies but also unlawfully evades the Governor’s partial-veto authority,” the suit notes.

The law also did an end run around the normal process of legal representation, whereby the attorney general represents the Legislature when suits arise. Democrat Josh Kaul was hardly likely to defend the gerrymandered legislative districts that kept Vos and other GOP leaders in power, so they would need to hire private attorneys.

To date, the Legislature has spent about $26 million on private attorneys and “has hired lawyers charging $500 or more per hour, according to contracts between legislative leaders and the law firms,” the suit notes. That included some $4.75 million to defend the gerrymandered Legislature.

The 2018 law also dismantled an entire office of the attorney general. In 2015 Walker and the Republican Legislature created the Wisconsin Office of the Solicitor General. Shortly after the office was created, Attorney General Brad Schimel secured $1 million in funding from the Legislature to hire a solicitor general, chief deputy solicitor general and other staff, as Urban Milwaukee reported. Schimel’s choice for solicitor general, Misha Tseytlin, became a national leader in the conservative effort to overturn abortion rights and the Roe v. Wade decision.

The lame duck laws closed that office, and many of its lawyers were often hired by Republican legislators to “initiate litigation that serves only improperly private, partisan, or political interests … in pursuit of no discernible or valid public purpose,” the suit notes. “Where it does so, it spends public money unlawfully, in violation of the public purpose doctrine.”

The sheer audacity and detailed nature of this “statutory scheme” raises the question: Who was advising Walker, Vos and Fitzgerald, none of whom are lawyers? That has never been reported. One obvious suspect is Tseytlin, who was later hired by Republican legislators to defend the lame duck laws and to defend their hiring of private attorneys.

Jeff Mandell, the attorney with Law Forward handling the lawsuit, told Urban Milwaukee that ALEC, the conservative American Legislative Exchange Council, has promoted the idea of legislatures hiring private lawyers. ALEC does create model legislation on a wide variety of issues, but tends to operate in secret, and an internet search turned up nothing on this subject.

Have any other states passed a law enabling a small group of legislators to approve unlimited spending on private attorneys? The website of the National Conference of State Legislatures offered no information on this, and the group had not responded as of publishing to an inquiry from Urban Milwaukee. Wisconsin may well be on the frontier of legal chicanery when it comes to this strategy.

The full list of issues the Republicans’ legal slush fund was spent on is long, and includes $8.4 million defending the lame duck laws; $2.3 million on the investigation of alleged voter fraud by former Supreme Court Justice Michael Gableman that turned up nothing and was ultimately condemned by Vos; and an unknown amount for a suit against the city of Green Bay, where the spending on lawyers continued even after the court dismissed the Senate as a plaintiff and ruled it had no “institutional interest” in that case.

And now the Legislature is hiring private lawyers to defend itself against this suit claiming its hiring of private lawyers is unconstitutional. “Sadly,” it’s “NOT” an Onion headline, state Sen. Chris Larson posted on Facebook.

The suit asks the courts to strike down the law allowing these appropriations, but as Mandell concedes, it’s unlikely to have any impact until a new Legislature takes office in 2027. By then, Vos will have retired and Democrats may be in power, but a court ruling preventing any such future mischief by either party would be good news for taxpayers.