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Doing your job as a civil servant or appointed governmental board member in Wisconsin is becoming more complicated as the ramifications of newly passed laws and executive orders come into effect. Understanding and implementing laws that contradict existing state statute is difficult, even for a panel of retired judges.
The Government Accountability Board (GAB) grappled with some of these questions on Wednesday at their bimonthly meeting. Comprised of six retired judges, the GAB oversees elections and lobbying in Wisconsin. In October, GAB Director and General Counsel Kevin Kennedy was called in front of the Joint Committee for Review of Administrative Rules to answer questions about decisions the Board had made regarding affixing stickers to student IDs to make them valid for voter ID purposes, and about opinions rendered allowing circulators of recall petitions to pre-populate the forms with voter-specific information.
Wednesday’s agenda included those two items, as well as the matter of technical college student IDs as acceptable voter IDs, and whether or not potential state senate recall elections would be held under the legislative district maps newly drawn up by Republicans earlier this year.
GAB staff attorneys had to bring Board members up to date on all the legislation recently passed and currently in committee that could affect their decisions. Additionally, they were informed about Executive Order #50 signed by Governor Walker earlier this month. This order creates the Office of Regulatory Compliance an office within the Department of Administration that pre-screens all proposed administrative rules.
Think of it as the secular version of the Congregation for the Doctrine of the Faith, previously known as the Congregation of the Roman and Universal Inquisition. Bills are passed by the legislature, signed into law by the governor, and then must be administered and/or enforced by various state agencies. In order to administer and/or enforce these laws, agencies must write rules based on existing state statute and their best interpretation of the intent of that law. The Office of Regulatory Compliance is there to ensure that the agencies interpret that intent in a politically and ideologically correct manner.
The new rule-making process not only requires that a proposed rule pass the muster of Scott Walker’s Office of Regulatory Compliance henchmen (and henchwomen, though there are precious few of them), it also obliges an agency making rules to produce an Economic Impact Analysis detailing how the rule change will affect the bottom line of businesses, organizations and other governmental agencies affected by it.
By the end of the five-hour public access portion of the meeting, Board members were so frustrated that they agreed to not change the language in the scope statement for a proposed rule about campaign advertising because, according to one GAB staffer, “it would be months and months before it even got to Legislative Council,” the actual rule-drafting body. The supposedly nonpartisan GAB decided against altering a rule they had previously agreed to change because of the lengthy timeline and hassle -- another object lesson in the effects of political pressure.
At their September meeting, the GAB decided that technical college student IDs would not be an acceptable form of voter ID based on the recommendation of GAB staff attorney Michael Haas. In the memo presenting this recommendation, Haas cited floor debate on failed Senate and Assembly motions as an indication of “legislative intent.”
Wednesday, however, technical college administrators and students were out in full force to defend the integrity of their institutions and their IDs.
Paul Gabriel of the Wisconsin Technical College District Boards Association pointed out that technical colleges are accredited by the same body that accredits private colleges and University of Wisconsin System schools – the Higher Learning Commission of the North Central Association of Colleges and Schools. Quoting Johnny Carson, he told the judges, “You buy the premise, you buy the schtick, and the premise here is wrong.” He added that, notwithstanding legislative debate on failed amendments to Act 23, “technical college student IDs do count under the plain language of the statutes,” and urged the retired judges to brush up on the law.
Tim Casper, public affairs and government relations manager of Madison Area Technical College, raised another excellent point: “If student IDs can be used to register to vote and not as voter ID at the polls, that seems problematic.”
Taking a slightly different tack, Adam Strozier of Milwaukee Area Technical College said, “Your decision disproportionately affects minority students.” That’s because the highest proportion of minority students enrolled in post-secondary educational institutions attend technical colleges.
Despite Kevin Kennedy’s recommendation that they reaffirm their decision to disallow tech college IDs at the polls, the GAB instead voted unanimously to reverse it. Judge Caine said flatly, “We were wrong” in September, while Judge Vocke added, “I agree that we were in error.”
Students from UW-System schools whose student IDs are theoretically valid as voter IDs gave testimony about the expense and difficulty of campuses having to alter the information and format of their IDs to conform with the new law. Dan Dodge, a student from UW-La Crosse, pointed out that the costs for obtaining extra documentation for voter ID purposes amount to a poll tax. Further describing the tight timelines involved with implementing the new rule he added, “We can't keep going back to the drawing board every time the GAB changes its mind.”
Judge Vocke asked Kennedy why the issue of stickers on student IDs was before them again since they had already decided the matter in September. He wondered if it was “due to the Joint Committee for Review of Administrative Rule’s problem with it.” Kennedy delicately explained the “security concerns” of the committee, and said that if the GAB didn’t reverse its decision, it would be considered a rule and would therefore be subject to “certain approvals.”
By “certain” he meant Scott Walker and his team of inquisitors at the Office of Regulatory Compliance. If an opinion or decision is to be made into a rule, then it must go through the onerous, time consuming process detailed above. In the end, the Board chose to stick by their original decision to allow hologram stickers containing the information required for voter IDs to be affixed to pre-existing student ID’s.
For Dan Dodge and college campuses throughout the state, the good news of that decision may prove to be short-lived. At the end of the hearing, I asked Kennedy if he had received word from Joint Committee for Review of Administrative Rules staff or members about appearing before them at their scheduled meeting this week. He checked his phone and told me, “Not yet, but I expect we will be in dialogue later this afternoon.”
Early Wednesday evening the AP reported that committee co-chair Leah Vukmir has scheduled a hearing for next Tuesday to handle decisions made by the GAB today.
According to an account by AP reporter Todd Richmond:
Vukmir further said the board ignored "a strong message" from the committee to drop the sticker plan. “We gave them the benefit of the doubt...but it's clear that they had their intentions set and they chose to ignore the very clear direction the committee gave them,” said Vukmir.
Vukmir and her Republican colleagues will also likely take issue with the GAB decision to use pre-2011 legislative district maps for any potential senatorial recall election this spring. Senator Mary Lazich authored a bill mandating the use of new, Republican drawn legislative district maps for any such election, but it stalled in the Senate because the one swing voter – Republican Dale Schultz – came out strongly against it.
However, all was not lost for Vukmir, et. al. They will applaud the decisions taken to not allow pre-population of voter specific data on recall petitions by petition circulators, and, for a petition that has only one signature on it – that of the circulator – to require the circulator to sign it twice. Both of these were also “strong messages” from the Joint Committee for Review of Administrative Rules.
So what’s a retired judge or legal counsel to do when political pressure to make decisions that go against existing statute and constitutional mandate is applied? Earlier this week Attorney General J.B. Van Hollen was caught between that same rock and a hard place regarding rules created to administer the concealed carry law. He managed to finesse his position by ensuring that his words and actions were strictly legal, while simultaneously encouraging the Joint Committee for Review of Administrative Rules to undermine them.
Kevin Kennedy will be in the same hot seat next week as he tries to explain to the Joint Committee for Review of Administrative Rules why those six retired judges who serve on the GAB insisted on following state statute. When the lawsuits against the GAB start to fly as they surely will, at least the GAB members will legitimately be able to say, “The devil made me do it.”
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.