Norman Stockwell
lame duck
Activists demonstrate outside Wisconsin's state capitol building in December 2018 following efforts by Republican lawmakers to seize powers from the incoming Democratic administration. On June 11, the Wisconsin state supreme court reinstated these laws, which became known under the hashtag #wipowergrab.
The long-term rightwing strategy to take over of every branch of government is paying off in Wisconsin, where the conservative-dominated state supreme court just reinstated a Republican power grab designed to seize authority from the newly elected Democratic governor and attorney general, in legislation hastily passed before they could take office.
The lame-duck legislative session, and defeated Republican Governor Scott Walker’s eleventh-hour signing of the new laws seizing power from his successor, made national news.
Wisconsin was not alone. Republican legislators in North Carolina and Michigan made similar lame-duck power grabs, boldly limiting the powers of incoming Democratic governors. Thanks to gerrymandered districts, the legislatures in those states, like Wisconsin, remain in Republican hands despite a majority of voters casting their ballots for Democrats in statewide elections.
None of this is happening by accident.
For decades, rightwing groups have poured money into local and statewide elections, seizing the levers of policymaking by playing in low-dollar, low-turnout elections.
Wisconsin, which just suffered through the most expensive state supreme court election in a decade, is “at the forefront of national trends that include growing spending and the growing role of nontransparent outside groups in state supreme court races across the country,” the Brennan Center for Justice reports.
The most recent race, decided in April, pitted the winner, conservative judge Brian Hagedorn, against liberal-backed Lisa Neubauer, and cost more than $6 million. The stakes were high because the outcome of this race and another race in 2020 could have tipped the balance of the court from conservative to liberal, just before the state’s gerrymandered maps as well as the Republican power grab come before the court.
For decades, rightwing groups have poured money into local and statewide elections, seizing the levers of policymaking.
Hagedorn, who lost the support of some conservative backers, including the state’s Realtors association, after his virulently anti-LGBTQ views became public, nevertheless benefitted from the support of other outside groups. These include, the Brennan Center points out, the Republican State Leadership Committee’s Judicial Fairness Initiative, which brags on its website that it is “the only national political organization focused exclusively on the electoral process of judicial branches at the state level” and has “helped protect conservative policy interests” in the states where it invested in judicial candidates.
But the Hagedorn/Neubauer race was not the first time that outside groups poured big money into a state supreme court election in Wisconsin. The last $6 million supreme court election took place in 2008, thanks to massive outside spending. Candidates were outspent 4-to-1 by outside special interests, the Wisconsin Democracy Campaign reported, in one of the ugliest and most expensive races in the country.
In that race, conservative Supreme Court Justice Michael Gableman won partly thanks to a Willy Horton-style ad against his incumbent opponent, Louis Butler, the first African American justice to serve on the Wisconsin high court. Among the groups that sponsored the barrage of negative advertising in that race were Wisconsin Manufacturers and Commerce, the NRA, and the Club for Growth.
In return for their investment, they got a Supreme Court justice who has been a great friend to big business, former Governor Scott Walker, and the lawyers and lawmakers who ran Wisconsin’s secret, closed-door redistricting process.
Gableman retired last year after a single ten-year term and a liberal-backed justice was elected to his seat. But Hagendorn’s election, to the seat being vacated by former Chief Justice Shirley Abramson, one of the nation’s most respected jurists, gives conservatives a 5-2 domination of the court, ensuring they will remain in power for the next round of redistricting no matter what happens next year.
Even before Hagedorn takes his seat, the current conservative majority is moving forward to protect the GOP’s power grab.
In a ruling this week, the court overturned Dane County Circuit Judge Frank Remington’s decision to block some provisions of the lame-duck laws, writing that the circuit court “erroneously exercised its discretion because it made errors of law.”
The lower court had blocked new laws that prohibit the state’s attorney general from withdrawing from a federal lawsuit without consent of the legislature’s Republican-dominated Joint Finance Committee. (Attorney General Josh Kaul has already withdrawn Wisconsin from a lawsuit against the Affordable Care Act.)
The supreme court reinstated the law requiring the attorney general to obtain legislative approval before withdrawing from other lawsuits or reaching settlements. It also reinstated a burdensome provision requiring state agencies to open a twenty-one-day comment period before publishing guidance on administrative rules.
The supreme court halted further proceedings in the lower court, hours before a three-day trial on some of the lame duck measures was about to take place.
Senate Majority Leader Scott Fitzgerald immediately declared victory, calling the reinstatement of the Republican legislature’s last-minute power grab “a win for the people of Wisconsin.”
A win for the Republican strategists who planned and executed the slow, steady takeover of democratic institutions by outside groups is more like it.