The court’s conservative justices are so worried about agency overreach that they’re threatening the strongest...
On Monday night Facebook and Twitter buzzed with this message: “Important Joint Legislative Hearing at 1pm tomorrow Tuesday 9/27 at WI Capital in Room 328NW —Urgent that any progressive citizens who can get to Madison be there and make their voices heard in person to protest a sudden attempt to further restrict the right of college students to vote using student IDs and the right of Wisconsinites to download their own petitions to recall elected officials.”
Room 328 NW brings back bittersweet memories. It was the room that Assembly Democrats took over to hear unofficial testimony from citizens on the union-busting, health-care slashing, administrative-power-grabbing, power-plant-selling “Budget Repair Bill” back in February after the Joint Committee on Finance cut off public testimony at 17 hours and rammed through a vote.
As the 14 Democratic Senators fled the state to forestall action on the bill, their colleagues in the Assembly took it upon themselves to hear testimony of the tens of thousands of citizens who subsequently flooded the Capitol. This act was the technicality by which the Capitol building remained open overnight, and protesters were able to set up a long-term encampment.
Round the clock for several days Assembly Democrats took turns staffing 328 NW, listening to Wisconsinites from all corners of the state describe how the bill was going to affect them, their families and their communities. Every time I walk by that room my heart aches with the memories of all those people, and I wonder how they’re doing now.
Room 328 NW is one of the smallest conference rooms in the building, with enough space for eighteen committee members to sit around the table, and about thirty seats around the edge of the room for staffers, reporters and observers. As leaders of both legislative bodies, the brothers Fitzgerald called a meeting of the Joint Committee for Review of Administrative Rules with 24 hours and 14 minutes notice, and booked it in the smallest possible room for the for the purpose of hearing testimony from just one person – Kevin Kennedy, Director and General Counsel of the Government Accountability Board, the non-partisan agency that oversees elections and lobbying.
At issue were decisions the GAB made about the characteristics of a student id that would make it valid for voting, and an opinion offered by the GAB about single signature recall petitions. The Committee was to decide whether these decisions required formal rules promulgated in order to be administered, or whether they were decisions made within the scope of the agency’s already existing interpretive and administrative authority
In my last blog post about mining and possible changes to current law, I pointed out that in all the discussion about changing the law, nobody was pointing out the fact that the executive branch in the person of the governor and the agency of the Department of Administration had amassed rule-making powers that could effectively bypass state statutes and force other state agencies (like the Department of Natural Resources which is in charge of permitting mines) to operate according to the will of the executive. In passing Act 21 last May, the legislature voted to abdicate its own power to oversee state agencies and hand it over to the governor.
This meeting of the Joint Committee for Review of Administrative Rules was the first major test of Act 21, and it didn’t exactly go as planned. In the meeting notice, co-chairs Rep Jim Ott and Sen. Lydia Vukmir also mentioned an executive session, indicating that they planned to take a vote on matters before the committee. But before the hearing was even called to order, Democrats raised strenuous objections.
Rep. Fred Kessler of Milwaukee stood up and said, “This committee is acting in a super partisan way to deprive people of their right to vote and of their right to be heard. This is not bipartisan. We’ve scheduled a hearing here, we picked a small room, but most important we’ve denied people the right to be heard and the right to proper notice. We should adjourn. This is sufficiently important that we should not proceed today.”
As if it hadn’t happened, co-chair Vukmir tried to call the meeting to order, but not before Sen. Lena Taylor had her say: “Excuse me, you ignored the Representative. Why would you do that? It is completely disrespectful of the chair. Is this the kind of leadership you believe is appropriate? Why would you ignore him? You heard the gentleman speak.”
Vukmir then backpedaled saying, “No one is taking away anyone’s right to vote today. We are hearing testimony from the Government Accountability Board.” She further clarified, “It is our duty to oversee when agencies are putting forth specific parts of the law. If they haven’t done policy through promulgation of a rule it is our job to point that out to them... This is not about the people, this is about the GAB.”
This statement elicited groans and jeers from the dozens of people crammed into the room sitting on the floor and spilling out into the hallway. Some of them were holding signs that read, “Can’t you win an election without disenfranchising students?” “Is this a ‘public’ hearing?” “Is this about identification or suppression?” “Is this creating jobs?” and the perennial favorite, “OMG GOP WTF?”
Vukmir was shouted down by the crowd later in the hearing when she tried to put a shine on the “not about the people” comment. “Of course I am concerned about the people and their constitutional right to vote. That is why I supported the voter ID bill!” she added, metaphorically shoving her high-heeled foot further down her throat. Rep. Gary Hebl brought this line of discussion to a close by saying, “The co-chair said, ‘it’s not about the people’ and I could not disagree with you more. If you think our actions are not about the people, you don’t deserve to be here.”
In his testimony, Director Kennedy read from a prepared statement about the topics at hand. He prefaced the voter ID issue with a remark about the opacity of the voter ID law passed by the legislature (Act 23), and the difficulties his agency had interpreting and administering such an inelegantly worded statute. He reiterated several times the right of the Joint Committee for Review of Administrative Rules to ask questions about policy and process and to ask them to formally promulgate a rule if necessary, but he also pointed out that the GAB has the authority to interpret statutes and to give advisory opinions that serve as precedent should any court challenge arise.
On the matter of downloading a recall petition template and pre-populating it with addresses, Kennedy noted that this was routinely done in the case of absentee ballots applications. He also noted that single-signature petitions where the name of the person certifying the signature and the person signing the petition are one and the same have been accepted as valid by the GAB for candidate nominations. This is not a new practice. What the GAB has offered a new opinion on is that such petitions only require one signature, since the printed names are the same individual.
Cutting to the chase, Sen. Taylor pushed the Legislative Council staffer to clarify the new procedures around rule promulgation. Referring specifically to the recall petition situation, Taylor likened it to putting a fox in charge of the chicken coop. “I wanted to make sure that we let the law speak. With all due respect, you may fool some people, but you can’t fool all people and you can’t fool me. You gave this governor the authority to accept or reject administrative rules. By you choosing to take this from the GAB to have them shift this from policy to a rule, you give the governor authority to decide on this.”
Legislative Council agreed, saying that the “new procedures would require gubernatorial approval of the scope statement as well as the final version of the rule.”
Sen. Fred Risser then put a finer point on it: “If you turn the decisions of the GAB into rules, they cannot even be considered by us unless the executive approves it! You’re working on a procedure to change the GAB decisions, and you can, in effect, eliminate recalls by rule.” He later added that if the committee asks the GAB to promulgate a rule, “we can’t talk about it again until the governor gets done with it. So I submit that this is part of a process to take this whole idea and dump it in the governor’s lap.”
Throughout the three-and-a-half-hour meeting Republican members of the committee left the room to confer with each other in private. By the end, a decision had been made to postpone any vote on whether or not the Joint Committee for Review of Administrative Rules should compel the GAB to formally promulgate rules about acceptable student IDs and recall petitions. Rep. Kessler proposed that a joint public hearing be held between the Joint Committee for Review of Administrative Rules and the GAB Board to clarify the issues, inviting public testimony, or at least wait to hold the joint committee’s executive session until after the next GAB Board meeting.
Sen. Vukmir said, “We’ll take that under consideration and we’ll decide that in the next few days. We need to take the time to think about issues that were raised here today.” When requested by Sen. Taylor to give the committee more than 24 hours notice for the next meeting, Vukmir didn’t miss a beat. “I’ll give you 25,” she retorted with a nervous laugh.
Rebecca Kemble is an Anthropologist who studied decolonization in Kenya. She serves on the Board of the US Federation of Worker Cooperatives and as the President of the Dane County TimeBank.