On July 2, the Legislature’s Joint Finance Committee unleashed a shocking assault on the state’s long and proud tradition of open government.
It happened at night, on the eve of a holiday weekend, just a few hours after the proposal was first unveiled. No one has taken credit for it. Committee co-chair Sen. Alberta Darling, R-River Hills, literally walked away from a reporter asking whose idea it was.
The committee’s cowardly action, which passed on a 12-4 party line vote with Republicans in the majority, was part of an omnibus motion stuck into the state budget. It will effectively end the Legislature’s need to comply with the state’s Open Records Law.
The changes exempt legislative communications from the law; shield from release all “deliberative materials” created for the purpose of making law or public policy (including opinions, analyses and briefings prepared at public expense); shut down public access to all records created in the process of drafting legislation; and specify that the Legislature can freely exempt any record from disclosure simply by passing a rule or policy.
These radical and sweeping changes represent a full-frontal attack on Wisconsin’s history of open government. They are clearly intended to block the public from discovering what factors drive the official actions of government, especially the Legislature, and will inevitably lead to abuse, malfeasance and corruption.
Should they become law, these changes would free the Legislature of the obligations of transparency in place for all other state and local governmental agencies. They will spare lawmakers from the burden of accountability to the people who elect them and pay their salaries. They will shield from public view the collusions of lawmakers with special interest groups, lobbyists and campaign donors.
In one 2014 case, bill drafting records exposed the involvement of a wealthy campaign donor in drafting a bill that would have reduced his own child-support obligation. The changes inserted into the budget bill would keep these records secret.
Bill drafting records have long been understood to be public records, and are now routinely posted online. The change inserted into the budget would make release of these records illegal.
In addition, the omnibus bill cuts away at public access to information about criminal charges in the state’s online court records system. It would allow charges filed against some individuals to “disappear” from this archive. While not as sweeping as some past failed efforts to remove records from this system, it is being done with virtually no public discussion.
The records these changes would seal off have, on countless past occasions, been used to expose wrongdoing and provide essential information on the workings of government. We should be pointing this out, as well as reminding people of the very strong proclamations in favor of transparency that have been made by our elected officials, including Gov. Scott Walker, who as a candidate said that the state Legislature needs to be more transparent.
And all of these changes are strictly policy matters, which have absolutely no business being part of a budget bill.
The people of Wisconsin need to rise in opposition to this attack on our state’s tradition of open and honest government. The future integrity of our state depends on it.
Republican Attorney General Brad Schimel noted the danger of tinkering with transparency at the summit he convened July 29 on open government. “Messing with open government laws is like touching the third rail,” Schimel said. “I think that lesson has been learned recently.”
The folks now running Madison got their hands burned while taking an ax to the trunk of our open records law, because the good people of Wisconsin—Republicans, Democrats and neither—rose up. The proposed changes were quickly pulled over the Independence Day weekend, and members of the public demanded to know who was responsible.
We’ve since learned more, thanks to our open records law. On the same day Schimel held his open government summit, the Milwaukee Journal Sentinel reported on a new batch of emails.
They show that it was Gov. Scott Walker and staff who added language exempting “deliberative process” documents from disclosure. This would have let elected representatives—and bureaucrats—bury records revealing lobbying, opinions, analyses, recommendations and negotiations that precede a decision.
They also show that Assembly Speaker Robin Vos (R-Rochester) and staff sought language to grant lawmakers broad new privileges to hide legislative documents, even when sued, and to ban their staffs from discussing issues even after leaving their jobs. No other state provides such an expansive legal privilege.
These restrictions would have applied not only to the governor and Legislature, but also to town, village, city and county boards and state and local agencies — to anyone in government worried that something in the records could bring a bit of embarrassment, an objection, a call for improvement.
No one had a whiff of what Walker, Vos and other party leaders were planning to do to the open records law until they stuck it into the state budget, at the last minute, just before a holiday weekend. We now know they had been working in secret on the changes for weeks, if not months.
The released records show that a Legislative Reference Bureau lawyer was researching legislative privilege language last September. Vos had the drafts written on special legislative privilege sometime before June 15. By then, Walker’s language to hide all “deliberative” records had been added.
Senate Majority Leader Scott Fitzgerald (R-Juneau) and Joint Finance Committee Co-Chairs Rep. John Nygren (R-Marinette) and Sen. Alberta Darling (R-River Hills) helped advance the changes. Ten additional Republican lawmakers voted them into the final draft of the budget bill that was meant to be quickly approved by the Senate and Assembly, then sent for the governor’s signature.
He is still refusing to release some records regarding his unpopular proposed changes to the mission statement of the University of Wisconsin, which he blamed on a drafting error. He is using the same language he tried and failed to insert into state law, saying he doesn’t have to release records made during deliberation of the proposed changes.
Two Republican lawyers agreed at Schimel’s summit that our open records law doesn't exempt those records from disclosure: Raymond Taffora, former chief counsel to Gov. Tommy Thompson and a top deputy to Republican Attorney General J.B. Van Hollen; and Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty.
The move appears no more than an attempt to avoid “political embarrassment,” Esenberg said.
This is not a partisan issue. The people of Wisconsin want open, honest government.
It is not too much to ask.