Lame-Duck Power Grabs Aren't New, But Republicans in Wisconsin and Michigan Are ‘More Aggressive’

Legislatures in recent years have increased, and intensified, their attempts to assert authority over other branches of government.
by | December 5, 2018
Protesters gathered outside the Wisconsin state Capitol on Monday night. (AP/John Hart/Wisconsin State Journal)

Last Updated at 9:29 a.m. ET

Scott Fitzgerald pulled no punches. The Republican leader of the Wisconsin Senate made clear that his support for limiting the powers of the incoming Democratic governor and attorney general  is based in distrust and fear of what the new leaders intend to do in office.

In a radio interview on Monday, Fitzgerald described Democrat Tony Evers, the governor-elect, as "the lapdog" of the state teachers union and said that legislators "don't trust" him. He warned that Evers would create "absolutely the most liberal administration that we have ever seen in the state of Wisconsin."

Echoing Fitzgerald's remarks, GOP Assembly Speaker Robin Vos said Tuesday night, "We are going to have a very liberal governor who is going to enact policies that are in direct contrast to what many of us believe in."

Their comments undermined their own claims that theirlegislation is simply a rebalancing of powers between the political branches. Democratic lawmakers and protesters have characterized the move as an attempt to "rig the system," or even a "coup."

Following all-night negotiations over the package, the state Senate approved legislation on Wednesday morning that will handcuff the new governor, by a 17-16 vote. Soon after, the Assembly voted 56-27 in favor of the measures. The package now heads to Gov. Scott Walker's desk.

The legislation in Wisconsin -- and similar proposals in Michigan -- appears to be driven not only by dismay among GOP legislators about the outcome of the election but by an attempt to cut off any chance that executive branch officials can change or challenge specific policies.

"It is a more aggressive use of the lame-duck session to strip power from incoming officials than I can remember," says Paul Nolette, a political scientist at Marquette University in Milwaukee.

In Wisconsin, lawmakers are looking to curtail Evers' authority to change administrative rules, issue pardons or extract the state from a lawsuit challenging the federal Affordable Care Act. The proposals in Michigan, which will be considered by GOP legislative caucuses next week, would give legislators more say over litigation while also taking oversight of campaign finance law away from the secretary of state.

The bills in Wisconsin and Michigan echo legislative activity in North Carolina to strip powers from the governor after the 2016 election of Democrat Roy Cooper. That effort has resulted in a two-year legal and political battle between the branches.

Evers has already suggested he will pursue litigation if the bills are signed by Walker, the outgoing Republican governor. The Wisconsin governor has perhaps the strongest veto power in the nation, setting up the potential for relations to remain contentious.

The current bills are part of a recent trend. Legislatures largely controlled by Republicans have been attempting to assert their authority over other branches and aspects of the political process more aggressively in recent years. Legislators have launched attacks on judicial independence, expanding or contracting the size of courts. They've also moved to limit or even overturn laws approved by voters at the ballot.

Last week, the Ohio Senate passed a bill that would limit the ways in which courts could interpret statutes. On Monday, Utah GOP Gov. Gary Herbert signed a bill to roll back provisions of a medical marijuana initiative approved by voters last month. On Tuesday, the Michigan House voted to weaken laws enacted in September to raise the minimum wage and require paid sick leave -- laws that were passed to stave off ballot initiatives.

Legislators have justified their actions by noting that, because they represent relatively small districts, they make up the branch most representative of the public will.

"We are the ones that are the closest," Wisconsin GOP Assembly Speaker Robin Vos said at a news conference on Monday. "We are the ones that have the most direct impact on peoples' lives."

It's clear that voters, to the extent that they pay attention to these wonky debates, generally don't support such efforts. Legislators in some states have had to back away from efforts to repeal or weaken ballot measures in the face of public blowback. Last month, North Carolina voters rejected a pair of ballot measures, referred by the legislature, to reduce the governor's power in picking judges or ethics and election board officials.

By taking action in lame-duck sessions, legislators give themselves the longest possible period of time to wait out any potential punishment from voters. In both Michigan and Wisconsin, state senators serve four-year terms.

"Unless angry voters in Michigan and Wisconsin want to pursue recall elections -- which in many cases in the latter state cannot happen until 2020 -- there is little they can do in response until the next general election," says Peverill Squire, an expert on legislatures at the University of Missouri.

Nolette suggests that, in a partisan age, there may be less chance that legislators will pay a political price for bending or breaking longstanding norms. With parties separated into warring camps, partisans may be more likely to cheer perceived victories for their side, he says, rather than worrying that old notions about checks and balances are being disturbed.

Only one Republican member of the Wisconsin Assembly represents a district that was carried by Evers in the gubernatorial election, along with just two Republican state senators.

"It seems polarization is such that parties are no longer worried about any blowback because they know their supporters will stick with them no matter what," Nolette says.

 

What the Wisconsin Legislation Does

Efforts to use lame-duck sessions to bolster partisan power are nearly as old as the nation itself.

After the election of Democratic-Republican Thomas Jefferson in 1800, Congress passed a law reorganizing and expanding the judiciary, allowing the outgoing Federalist President John Adams to pack the judiciary with dozens of "midnight judges," as they became known.

"For weeks, Adams had been exercising his presidential prerogative to fill government positions of all kinds," writes Adams biographer David McCullough. "Scruples of the kind he had once preached ... concerning such appointments were considered no more."

Six decades later, when Democrat Andrew Johnson became president after the assassination of Republican Abraham Lincoln, Congress blocked Johnson from filling a vacancy on the Supreme Court by voting to shrink the size of the court. More recently, Senate Republicans blocked Democrat Barack Obama from filling a Supreme Court vacancy for more than a year, allowing President Trump to appoint a new justice last year.

The package of bills under consideration by the Wisconsin legislature represents a particularly broad challenge to the governor's authority. Walker, who was narrowly defeated last month by Evers, hasn't said definitively whether he will sign them, but he hinted on Monday that he probably would.

“For all the talk about reining in power, it really doesn’t,” Walker told reporters at a capitol ceremony.

Wisconsin Republicans have sought to play down the effects of their proposed legislation. Fitzgerald dismissed it as "inside baseball." Vos says the legislature is just seeking "an equal seat at the table."

"It puts us on an equal playing field as a legislature," GOP Rep. John Nygren, who co-chairs the Joint Finance Committee, said at a hearing on Monday. "This is a balancing of power in the state of Wisconsin."

It's clear, however, that the bills would shift power away from the governor and toward the legislature.

The bills would, among other things, make it more difficult for the governor or the administration to make rule changes when implementing laws, while making it easier for the legislature to block any rules it doesn't like. It codifies work requirements under Medicaid that Walker has implemented through a federal waiver. The legislation would also require the governor to report any pardons or early release of prisoners to lawmakers.

As part of the late-night negotiations, Republicans dropped a proposal that would have allowed legislators to run the show on litigation, replacing the attorney general with private attorneys when state laws are challenged. This would have prevented Evers and incoming Democratic Attorney General Josh Kaul from leaving the multistate lawsuit challenging the Affordable Care Act, as they promised to do during the campaign.

Assuming Walker signs off on the legislation, the incoming governor would have to seek legislative permission before asking Washington for changes in joint federal-state programs, limiting his flexibility in running benefit programs.

One bill would give the legislature effective control over the Wisconsin Economic Development Corporation (WEDC), specifically allowing Republican lawmakers to appoint a majority of its board for the next nine months, which in turn would appoint the agency's leader. The bill was amended Wednesday to allow control of the agency to revert to Democrats in September 2019. Evers promised to disband the WEDC, with his campaign website calling it "a constant source of controversy, inefficiency and ineffectiveness."

Prior to the vote, eight former heads of job creation agencies, including Walker's first two WEDC directors, released a statement calling for lawmakers to drop their proposal.

"If the head of WEDC isn't a trusted, even central, part of the governor's cabinet, the whole economic development enterprise will suffer," they wrote. "And so will Wisconsin's economy."

The legislative proposal would also expand a state insurance board, allowing legislative leaders to fill the new slots.

In addition to the inter-branch changes, the legislature intends to limit the use of early voting to two weeks. A similar change was ruled unconstitutional in federal court in 2016. Republicans argue the new version will pass muster because it allows evening and weekend voting.

One earlier proposal was not included in Tuesday's legislation. Some Wisconsin Republicans had hoped to boost conservative state Supreme Court Justice Daniel Kelly's chances for reelection in 2020 by separating that vote from the presidential primary, when more Democratic voters are expected to turn out.

Sen. Fitzgerald acknowledged last week that decoupling the elections would improve Kelly's chances. But the state elections commission warned that moving the presidential primary would cost $7 million and would be "extraordinarily difficult to accomplish." The proposal was stripped from Tuesday's bills.

 

On Tap in Michigan

Michigan lawmakers are not proposing such an ambitious range of changes, but they intend to strip some powers from incoming Democratic executive branch officials.

One proposal would shift oversight of the state's campaign finance law from the secretary of state to a new commission, which would have an equal number of Republican and Democratic members. As is the case with the Federal Election Commission, a board that is split evenly on partisan lines might be unable to reach agreement on how to enforce many policies.

Democrat Jocelyn Benson, the incoming secretary of state, campaigned on a promise to crack down on so-called dark money groups that are nominally nonprofit educational entities but spend heavily on campaigns and don't disclose donors. A separate Michigan bill would prohibit agencies from requiring nonprofits to disclose their donors.

Another bill would give the legislature authority to intervene in court cases. Dana Nessell, the incoming Democratic attorney general, said during the campaign she would not defend state laws she finds to be unconstitutional, notably a 2015 state law allowing faith-based adoption agencies to refuse to replace foster children with same-sex couples.

Republican legislators in Michigan say that with more and more policy disputes playing out in courts, they should have a right to express their views in the legal arena.

As attorneys general have become more partisan in recent years, battles between AGs and governors and legislators over how to handle controversial litigation have become more common. Various legislatures have considered curbing the powers of attorneys general in response to their handing of ACA litigation.

The Kentucky Senate, for example, voted last year to strip Democratic Attorney General Andy Beshear of his authority to file or appeal civil lawsuits, giving that power over to the governor, Republican Matt Bevin. That bill was rejected in the state House which, like the Senate, is controlled by Republicans.

That's what really makes these efforts in Wisconsin and Michigan stand out, says Nolette, the Marquette professor. They're likely to become law.