Hamilton Political Tidbits - Dec. 21, 2011
Introduction
In this final Political Tidbits edition of 2011, HCG provides a review of the major political and legislative events of the year. From recall elections to major legislative reforms, 2011 will not soon be forgotten.
Even those outside the state are taking notice of Wisconsin's big year as noted in a recently released report championing Wisconsin's lawsuit reforms.
This issue also features HCG's analysis of today's hot topics: the recently introduced mining legislation; gubernatorial and senate recalls; and the lawsuits surrounding the new voter ID law.
Last but not least, our final article discusses a recent federal court decision that struck down a Wisconsin campaign finance law based on the U.S. Supreme Court's controversial Citizens United precedent.
Happy Holidays and best wishes for the new year from all of us at the Hamilton Consulting Group.
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A Year in Review: 2011
By Andy Cook, The Hamilton Consulting Group
To say that 2011 was a historical and eventful year politically in Wisconsin is an understatement. Below is a summary of some of the major events that took place in Madison in 2011.
Gov. Walker’s Budget Repair Bill (Act 10): Very few will soon forget the public employee union changes contained in Gov. Scott Walker’s budget repair bill (Act 10) and the fallout that ensued.
Before it was enacted, 14 state Democratic Senators fled to Illinois for 21 days while thousands of protestors descended upon the Capitol for weeks of intense debate over the controversial legislation. Before the ink could dry on Act 10, lawsuits were filed challenging the law and opponents of the new law gathered signatures to recall nine state Senators.
Dane County Circuit Court Judge Maryann Sumi struck down Act 10, ruling that the Legislature violated the Open Meetings Law when it enacted the law. Judge Sumi’s decision was later reversed by the Wisconsin Supreme Court in a highly contentious 4-3 decision. The issue has not subsided, as Act 10 opponents are circulating petitions to recall four more Republican senators as well as Gov. Walker.
Justice David T. Prosser Reelection: A normally sleepy April reelection race for the State Supreme Court Justice seat held by David T. Prosser ended up in a heated and close election with a political unknown – Assistant Attorney General JoAnne Kloppenburg – coming within a hair of unseating the longtime Justice. Gov. Walker’s opponents turned the election into a referendum on the Governor’s public employee union changes.
The election also had major implications given that the Supreme Court would eventually rule on a lawsuit challenging Act 10. Election results were so close that it led to a recount, with Justice Prosser holding on to his seat. Shortly thereafter, the Wisconsin Supreme Court, and Justice Prosser himself, made headlines after an alleged altercation between Justice Prosser and Justice Ann Walsh Bradley due to a disagreement over the Court’s decision upholding Act 10.
2011 Recall Elections: Both parties claimed victory in August when voters in eight districts went to the voter box for highly unusual recall elections. Democrats gained two seats, but came up short in their bid to take control of the Senate. The Senate Republican majority was narrowed from 19-14 to 17-16, making it more difficult for Republicans to pass some pieces of legislation.
Redistricting: The Legislature is charged every ten years with redrawing legislative boundaries based on population data from the U.S. Census. Wisconsin’s population increased 300,000 over the past decade. There has been growth around the Madison and Fox Valley region, while northern Wisconsin and Milwaukee saw a decline.
The three bills passed by the Senate and Assembly redrawing the maps are Senate Bills 148, 149, and 150. Democrats decried the legislation as a power grab by Republicans, claiming that the newly drawn districts will unfairly help Republicans retain control of their majority in future elections. Meanwhile, Republicans argue that the new maps should apply in the upcoming Senate Republican recall elections. Both sides have filed lawsuits over the redistricting, with opponents arguing the new maps be thrown out, and Republicans asking the courts to apply them in the upcoming recall elections.
Major Legislative Enactments: Lost in much of the rancor and headline-grabbing news was the amount of substantive legislation that was passed into law in 2011. With Republicans holding control of both legislative chambers and the Executive Branch for the first time since 1995, legislators and Gov. Walker wasted no time passing major legislative policies, including:
The Governor and lawmakers ended 2011 with another special session on job creation, once again enacting economic development legislation, including civil litigation reforms.
Preview of 2012 – More Recalls and Elections: The collective bargaining debate will continue into 2012 as more recalls are on the way. Gov. Walker’s opponents and the Democratic Party began collecting signatures in November to recall the Governor. Pundits expect there will be enough signatures to place Gov. Walker on the ballot in May or June, depending on how long it takes to verify the signatures and the length of any legal challenges.
In addition, four more Republican senators are being targeted with recalls, with a possible fifth recall for Democratic Sen. Bob Jauch (Poplar). In addition to the recall elections, 2012 is an election year. In the fall voters will elect a new U.S. senator to replace retiring Sen. Herb Kohl (D). The winner of the Republican primary – featuring former Gov. Tommy G. Thompson, former Congressman Marc Neumann, and Assembly Speaker Jeff Fitzgerald – will likely face Democratic Congresswoman Tammy Baldwin.
2011 will certainly go down as one of the most controversial and active in the history of Wisconsin state politics.
Wisconsin Receives Accolades from Judicial Hellholes Report
The American Tort Reform Association recently came out with its annual Judicial Hellholes report, and instead of receiving negative scrutiny, Wisconsin received accolades for the significant tort reforms enacted into law by Gov. Walker and the Legislature. In a statement highlighting the positive reforms made throughout the country, ATRA President Tiger Joyce had this to say about Wisconsin:
"As anemic economic growth and high unemployment continue to plague much of the country, many governors and state legislators were determined to make their states more competitive and attractive to employers with a variety of tort reform measures. None were more successful than Gov. Scott Walker and lawmakers in Wisconsin. They pushed a comprehensive civil justice reform package to enactment early in the year, before coming back for three more significant measures in a special session this fall."
See p. 38 of ATRA's Judicial Hellholes report to read discussion of Wisconsin's accomplishments in 2011.
Voter ID Law Challenged
By Emily Kelchen, The Hamilton Consulting Group
Wisconsin’s new voter ID law is facing some legal and logistical challenges. Three lawsuits have been filed seeking to overturn or modify the law, one in federal court in Milwaukee and two in Dane County Circuit Court. The lawsuits may determine if a photo ID, such as a driver’s license or other government-issued identification, is necessary if voters want to participate in the February 21st primary election.
The first suit concerning the new law was filed by Wisconsin League of Women Voters. The challengers allege the law violates the suffrage section of the State Constitution. A hearing on that case is set for January 19th in Dane County Circuit Court.
The most recent suit has been filed in Dane County, by the Milwaukee Chapter of the NAACP and Voces de la Frontera. The suit seeks an injunction which would bar implementation of the law before the spring elections or any recall elections.
The state court challenges center around Article III of the Wisconsin Constitution, which contains the following provisions:
Electors. Section One. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.
Implementation. Section Two. Laws may be enacted:
1. Defining residency.
2. Providing for registration of electors.
3. Providing for absentee voting.
4. Excluding from the right of suffrage persons:
a. convicted of a felony, unless restored to civil rights.
b. adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside.
5. Subject to ratification by the people at a general election, extending the right of suffrage to additional classes.
A federal suit has been filed by the American Civil Liberties Union and the National Law Center on Homelessness & Poverty on behalf of a group of senior citizens, minorities and homeless residents. The lawsuit says that the state is violating the U.S. Constitution by infringing on some citizens' right to vote and to be treated equally under the law and amounts to a kind of poll tax on voters who lack the documents needed to get an approved ID.
The case law that will likely control in all three cases favors the state. In Crawford v. Marion County Election Board, a plurality of the U.S. Supreme Court upheld Indiana's photo ID law, which is similar to Wisconsin’s new law. However, the fractured opinion left open a possibility that such laws might be successfully challenged if they were unfairly or more broadly applied.
Despite the legal challenges, the Government Accountability Board, which is responsible for overseeing state elections, is busy implementing the new law. The GAB plans to launch a television and radio ad campaign on the new law January 2nd. The "Bring it to the Ballot" ads direct people to a state website, where voters can learn more about what IDs can be used for voting and how to get a free state-issued ID.
Wisconsin Recall Update
By Emily Kelchen, The Hamilton Consulting Group
Since Hamilton’s last analysis of the recall effort three major events have occurred: 1) the coalition seeking to recall Governor Walker announced updated signature totals; 2) both sides of the recall campaigns made financial reports; and 3) the Government Accountability Board discussed how the signature verification process will be handled.
Signature Total Update
First, as predicted by Hamilton, the new signature target for the coalition seeking to recall Governor Walker is over 700,000 signatures. The coalition announced that after 28 days it had collected 507,533 signatures, which means only 32,675 more signatures are needed by January 17th to force the recall. At this pace it is likely that a recall will occur.
The Milwaukee Journal Sentinel reported that all of the senate recall campaigns are also progressing, and the recall leaders are optimistic about collecting enough signatures to force recall elections.
Campaign Finance Reports
The first campaign finance reports were released last week. The Democratic Party of Wisconsin and the recall organization, United Wisconsin, have raised about $1.48 million since July. Governor Walker has raised $5.1 million over the same period. The large amounts are a reflection of the campaign finance laws, which allow candidates facing recall to accept unlimited campaign contributions.
The reports show that a larger portion of the contributions to both sides of the recall effort is coming from out of state than ever before in the state’s history.
Government Accountability Board Facing Criticism
The Government Accountability Board, which reviews recall petitions, is being criticized for its role in the recalls.
Wisconsin law requires the GAB to presume that petition signatures are valid. Meaning it is up to the targeted office holder to find duplicate signatures or discover other non-valid signatures.
The conservative MacIver Institute released a report after the GAB’s most recent meeting suggesting that the GAB would accept the signatures of Mickey Mouse and Adolf Hitler so long as they had a Wisconsin address. After the Mickey Mouse report, Republicans filed a lawsuit claiming the GAB does not do enough to make sure the names on recall petitions are valid. The Republican Party requests in its complaint that the court order the GAB to review and throw out duplicates, fake names, and signatures with illegible addresses.
Assembly Holds First Mining Bill Hearing
By Emily Kelchen, The Hamilton Consulting Group
The Assembly Jobs, Economy and Small Business Committee met yesterday for the first hearing on the proposed mining bill, AB 426.
This bill is in response to Gogebic Taconite's proposal to build Wisconsin’s largest ever iron mine. Earlier this year, the company said it needed more certainty in the state's regulatory process before it proceeds with the $1.5 billion mine in portions of Iron and Ashland counties. Without the changes, testified Gogebic President Bill Williams, it is doubtful outside investors would lend money for the 1,000-foot-deep mine.
The hearing drew a large number of attendees. A number of people from the area near the proposed mine made the drive to Milwaukee to testify the hearing, both for and against. As part of their testimony in opposition to the bill, a member of the Bad River Band of the Lake Superior Tribe of Chippewa Indians performed an honor song. Also testifying were several business owners from the Milwaukee area, which is the home to many large equipment manufacturers that would benefit from more mining related business.
Proponents of the bill point to the job creation potential of the mine, while opponents worry environmental standards will be sacrificed to gain those jobs. Proponents counter that the text of the bill is the best indication so far that it is possible to retain Wisconsin’s strong environmental standards while still taking advantage of the state’s rich natural resources.
The mining hearing was covered by news outlets across the state, and nationally by the Wall Street Journal. The Journal characterized the proposed mine as “the latest flash point in a growing national debate that weighs the prospect of new jobs against concern about environmental damage,” and its coverage of the varied opinions expressed at the hearing supports that description.
“So many pieces of this legislation represent to me a give-away of the natural resources of the state,” said Mr. Wiggins, the [Bad River Tribe] leader.
Ray Frisleben, wearing a Green Bay Packers baseball cap and leaning on a cane, shook his head in disgust as Mr. Wiggins was speaking.“Look at Minnesota and Michigan that have these mines,” said Mr. Freisleben, 48, a retired Air Force systems analyst who lives in Waukesha, in southeastern Wisconsin. “They seem not to be having any problems. People need jobs.”
Shirl LaBarre, of Hayward, Wis., near the proposed mine site, told lawmakers Wednesday that the region’s economy is sinking and young people are leaving for better job prospects. Her family plumbing business has shrunk from eight employees in recent years to employing just her and her husband.
“My son’s going to leave for college and if we don’t have jobs, he’s not coming back,” said Ms. LaBarre, who supports the mine.…
“This is being falsely case as another jobs-vs.-the-environment argument,” said Katie Nekola, general counsel of the environmental group Clean Wisconsin, in an interview. “Of course it’s possible to have economic development without destroying Wi8sconsin’s air and water. If this company thought that they could operate an iron mine in the North Woods without doing a lot of environmental damage, this bill wouldn’t exist.”
Hamilton Consulting's previous analysis of the bill is available here. Track Hamilton Consulting’s analysis of the mining bill by subscribing to our free newsletter Political Tidbits, by following @HCG500 and the hashtag #WIMining on Twitter, or by contacting Hamilton Lobbyists Robert Fassbender, Andy Engel, or Amy Boyer.
Daubert Summit - CLE Seminar: Jan. 11, 2012
The Wisconsin Civil Justice Council (WCJC), in partnership with the Wisconsin Defense Counsel (WDC) and the Wisconsin Association of Manufacturers and Commerce (WMC), is presenting a comprehensive education and training event regarding the recently enacted rules governing expert opinion testimony in Wisconsin (2011 Wisconsin Act 2). The major sponsors of this event are the Wisconsin Insurance Alliance (WIA) and The Wisconsin Hospital Association (WHA).
Titled "Daubert Comes to Wisconsin-CLE Summit on Expert Opinion Evidence," the program is primarily for in-house counsel and trial lawyers who are engaged in the defense of civil litigation as well as those lawyers who represent businesses and professionals, and whose litigation fate relies heavily on the admissibility - or non-admissibility - of expert testimony.
The Summit will be held on Jan. 11, 2012 at the Milwaukee Marriott West.
- For event and registration information, click here.
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