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Amoral And Illegal: Gov Walker Misleads On His Administration’s Legal Support For GOP Legislators

Last week, Wisconsin Governor Scott Walker put a deceptively positive gloss on the legal battles surrounding his stalled union-busting bill in an interview with the right-wing Newsmax website.

Background on the Legal Battles

As CMD has reported, Governor Walker’s union-busting bill (“Act 10”) was amended by a conference committee on March 11 to avoid quorum requirements, then passed by the Wisconsin Senate with no Democrats present. State Open Meetings laws require 24 hours notice for all meetings, or two hours with “good cause,” but neither standard was met at the March 11 vote. Following a complaint from Dane County’s District Attorney, Judge MaryAnn Sumi found a probable Open Meetings violation and issued an order preventing the Secretary of State from publishing the bill, a necessary step before it can become law. Attorney General JB Van Hollen appealed the decision, and the Court of Appeals offered the case to the state Supreme Court on March 24, which has not taken action (possibly because Justice Prosser’s election is still pending). In the meantime, the Legislative Reference Bureau published the law under statutory authority separate from that of the Secretary of State, raising questions of whether the bill has become law, and prompting Judge Sumi to issue an order declaring it not to be in effect.

On April 7, Governor Walker’s Administration jumped into the fray and asked the Wisconsin Supreme Court to vacate Judge Sumi’s order.

Walker Administration’s Legal Position Contrary to Governor’s Statements

The Walker Administration’s petition was discussed during the Governor’s videotaped interview with mustachioed Newsmax anchor Ashley Martell. Walker said:

My administration this week appealed to the state Supreme Court on two counts. Really both on […] the fact that we don’t believe it is legitimate for the judge to be an issuing a temporary restraining order when we think the law was dufully (sic) passed by the members of the state legislature. (at 3:29)

Mustache Martella replied: “speaking of that, the legal issue seems to be the notice given before the vote . . .”

The heart of the issue that is regarding the restraining order really involves the issue of the open meetings laws and whether or not there was notice on that. The legislature feels, and I think they are right about this, that they very clearly did follow the statute, that under other circumstances there might be a problem, but in a special session . . . it is clear that they followed the law. (at 4:12)

Despite Walker’s faith in the conduct of fellow Wisconsin Republicans, his legal team is not contending that GOP legislators followed the law, but only that violations of that law be enforced more leniently. In its petition to the Supreme Court, not once does Walker’s Administration argue that Republican legislators acted lawfully.

Walker’s petition focuses on three issues, claiming (1) that breaking an Open Meetings law is a “procedural violation” that cannot be punished through voiding a legislative act, (2) that a court does not have jurisdiction to prevent a bill from becoming law (even if it may have authority to void a law once enacted), and (3) that the Act is published and is now law, meaning Sumi’s order has no relevance. The brief also questions whether the District Attorney can sue to invalidate a statute, and whether Judge Sumi could enter an order considering defendants’ legislative immunity. Significantly, the petition does not discuss whether legislative notice rules can override Open Meetings laws (which, if argued, could have implied legislators acted lawfully).

Put Your Money Where Your Mouth Is

Walker’s Newsmax statements give the impression that legislators acted honorably, avoiding the fact that they may have illegally shut citizens out of the political process, violated the state’s constitutionally-recognized open government guarantees, and did so on a bill that has a significant impact and massive public attention. This is no small matter. As the late Wisconsin Supreme Court Justice William Bablitch wrote in the 1994 case State ex rel. Hodge vs. Town of Turtle Lake: 

The purpose of the Open Meetings Law is to protect the public’s right to be informed to the fullest extent of the affairs of government. . . An open meetings law is not necessary to ensure openness in easy and noncontroversial matters where no one really cares whether the meeting is open or not. Like the First Amendment, which exists to protect unfavored speech, the Open Meetings Law exists to ensure open government in controversial matters.

Open Meetings laws are fundamentally important to Wisconsin’s democracy, and violations are serious business. If Walker genuinely believes the GOP lawmakers’ actions were virtuous and lawful, his administration’s legal documents should reflect that.

By: Brenda Fisher, Center for Media and Democracy, April 13, 2011

April 14, 2011 Posted by | Collective Bargaining, Democracy, Gov Scott Walker, Governors, Ideologues, Ideology, Politics, Public Employees, Right Wing, State Legislatures, Union Busting, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , , | Leave a comment

Wisconsin Supreme Court Election Needs Fraud Investigation

Partisans on both sides were ready to scream “fraud at polls” as the balloting wound down in Wisconsin in the recent state Supreme Court election.

Normally, the race would have been a snoozer. Incumbent Justice David Prosser, a former GOP state assembly speaker and failed congressional candidate, won 55 percent of the vote in the first round of balloting. His opponent, an ultra-liberal named Jo Anne Kloppenburg, ran a distant second. But that was before Wisconsin Republican Gov. Scott Walker proposed and won enactment of a series of reforms that change the rules for state government workers in a way that limited their collective bargaining power.

After that, the election was presented as a referendum on Walker’s reforms, one the unions opposed strongly, going so far as to occupy the state capitol building in an effort to block the legislature from doing its business.

Since the court will inevitably rule on the legality of Walker’s reforms, a victory by Kloppenburg would have been a major setback for the new governor since it would have shifted the 4-3 majority on the seven-member Supreme Court from 4-3 conservative to 4-3 liberal.

The morning after the election, the Associated Press was reporting Kloppenburg ahead by just over 200 votes, enough for her to declare victory, even though the margin was close enough to trigger an automatic recount. The GOP was concerned because the heavy presence of pro-union activists in the state from around the country may have been able to take advantage of weaknesses in the state’s election code to unfairly, perhaps even illegally, influence the election.

The GOP was ready to question the validity of the outcome when a reporting error in heavily-GOP Waukesha County was discovered that gave Prosser a lead of more than 7,000 votes.

Now it was the Democrats‘ turn to cry, “Foul!” and to raise the specter of vote fraud.

Both parties are right to be concerned. Elections in Wisconsin are a messy business, particularly because the state allows same-day registration on Election Day, and because of something known as “vouching,” in which voters who can prove who they are can attest to the identity of others seeking to vote.

Something needs to be done. It’s time for a bipartisan effort to look at the entire election. As the Wall Street Journal‘s John Fund wrote recently, “An independent investigation is called for, if for no other reason than to clear the air and to recommend procedures to ensure such errors don’t happen again. Just as many Wisconsin officials have ignored or downplayed evidence of vote fraud (see the Milwaukee Police Department’s 2008 detailed investigation) so too have sloppy election procedures been allowed to fester in some counties.”

He’s right. Too many people choose to look the other way when the issue of voter fraud is raised, especially if their party is the one that benefits. Elections are too important to not take these allegations seriously. Wisconsin has the reputation for being a “good government state.” If they want to keep it, Governor Walker should appoint an independent panel to review the election and use it as the basis for a set of electoral reforms that could be a model for the nation.

By: Peter Roff, U.S. News and World Report, April 11, 2011

April 12, 2011 Posted by | Democracy, Elections, Gov Scott Walker, Government, Governors, Politics, Public Employees, Republicans, Union Busting, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , , | Leave a comment

Wisconsin’s Radical Break From It’s Civic Traditions

Now that a Wisconsin judge has temporarily blocked a state law that would strip public employee unions of most collective bargaining rights, it’s worth stepping back to place these events in larger historical context.

Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well.

Wisconsin was at the forefront of the progressive reform movement in the early 20th century, when the policies of Gov. Robert M. La Follette prompted a fellow Republican, Theodore Roosevelt, to call the state a “laboratory of democracy.” The state pioneered many social reforms: It was the first to introduce workers’ compensation, in 1911; unemployment insurance, in 1932; and public employee bargaining, in 1959.

University of Wisconsin professors helped design Social Security and were responsible for founding the union that eventually became the American Federation of State, County and Municipal Employees. Wisconsin reformers were equally active in promoting workplace safety, and often led the nation in natural resource conservation and environmental protection.

But while Americans are aware of this progressive tradition, they probably don’t know that many of the innovations on behalf of working people were at least as much the work of Republicans as of Democrats.

Although Wisconsin has a Democratic reputation these days — it backed the party’s presidential candidates in 2000, 2004 and 2008 — the state was dominated by Republicans for a full century after the Civil War. The Democratic Party was so ineffective that Wisconsin politics were largely conducted as debates between the progressive and conservative wings of the Republican Party.

When the Wisconsin Democratic Party finally revived itself in the 1950s, it did so in a context where members of both parties were unusually open to bipartisan policy approaches. Many of the new Democrats had in fact been progressive Republicans just a few years earlier, having left the party in revulsion against the reactionary politics of their own senator, Joseph R. McCarthy, and in sympathy with postwar liberalizing forces like the growing civil rights movement.

The demonizing of government at all levels that has become such a reflexive impulse for conservatives in the early 21st century would have mystified most elected officials in Wisconsin just a few decades ago.

When Gov. Gaylord A. Nelson, a Democrat, sought to extend collective bargaining rights to municipal workers in 1959, he did so in partnership with a Legislature in which one house was controlled by the Republicans. Both sides believed the normalization of labor-management relations would increase efficiency and avoid crippling strikes like those of the Milwaukee garbage collectors during the 1950s. Later, in 1967, when collective bargaining was extended to state workers for the same reasons, the reform was promoted by a Republican governor, Warren P. Knowles, with a Republican Legislature.

The policies that the current governor, Scott Walker, has sought to overturn, in other words, are legacies of his own party.

But Mr. Walker’s assault on collective bargaining rights breaks with Wisconsin history in two much deeper ways as well. Among the state’s proudest traditions is a passion for transparent government that often strikes outsiders as extreme. Its open meetings law, open records law and public comment procedures are among the strongest in the nation. Indeed, the basis for the restraining order blocking the collective bargaining law is that Republicans may have violated open meetings rules in passing it. The legislation they have enacted turns out to be radical not just in its content, but in its blunt ends-justify-the-means disregard for openness and transparency.

This in turn points to what is perhaps Mr. Walker’s greatest break from the political traditions of his state. Wisconsinites have long believed that common problems deserve common solutions, and that when something needs fixing, we should roll up our sleeves and work together — no matter what our politics — to achieve the common good.

Mr. Walker’s conduct has provoked a level of divisiveness and bitter partisan hostility the likes of which have not been seen in this state since at least the Vietnam War. Many citizens are furious at their governor and his party, not only because of profound policy differences, but because these particular Republicans have exercised power in abusively nontransparent ways that represent such a radical break from the state’s tradition of open government.

Perhaps that is why — as a centrist and a lifelong independent — I have found myself returning over the past few weeks to the question posed by the lawyer Joseph N. Welch during the hearings that finally helped bring down another Wisconsin Republican, Joe McCarthy, in 1954: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”

Scott Walker is not Joe McCarthy. Their political convictions and the two moments in history are quite different. But there is something about the style of the two men — their aggressiveness, their self-certainty, their seeming indifference to contrary views — that may help explain the extreme partisan reactions they triggered. McCarthy helped create the modern Democratic Party in Wisconsin by infuriating progressive Republicans, imagining that he could build a national platform by cultivating an image as a sternly uncompromising leader willing to attack anyone who stood in his way. Mr. Walker appears to be provoking some of the same ire from adversaries and from advocates of good government by acting with a similar contempt for those who disagree with him.

The turmoil in Wisconsin is not only about bargaining rights or the pension payments of public employees. It is about transparency and openness. It is about neighborliness, decency and mutual respect. Joe McCarthy forgot these lessons of good government, and so, I fear, has Mr. Walker. Wisconsin’s citizens have not.

By: William Cronon, Op-Ed Contributor, The New York Times, March 21, 2011

March 22, 2011 Posted by | Class Warfare, Collective Bargaining, Gov Scott Walker, Governors, Jobs, Politics, State Legislatures, States, Unions, Wisconsin, Wisconsin Republicans | , , , , , , , , | Leave a comment