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GOP lawmakers vote in wee hours to pass lame-duck bill curtailing powers of governor, attorney general

December 5, 2018

Josh Kaul

Republican lawmakers, after an all-night push made mostly behind closed doors, reconvened early Wednesday morning to pass a revised bill diminishing the powers of incoming Gov. Tony Evers and Attorney General Josh Kaul and curtailing the timeline for early voting.

A Senate amendment to the bill was made public shortly before 5 a.m. Wednesday, and senators passed it at about 6 a.m.

The vote was 17-16, with Sen. Rob Cowles, R-Green Bay, the lone GOP “no” vote and all Democrats opposed.

The Assembly signed off on the scaled back measure by a 56-27 vote roughly two hours later.

The bill now heads to Gov. Scott Walker, whose spokeswoman has not yet said if or when he plans to sign them.

The amendment scaled back a controversial provision restricting the Attorney General -- a post soon to be filled by Democrat Josh Kaul. It would have allowed a legislative panel to name outside special counsel to effectively replace the attorney general defending the state if a law is challenged.

Legislative leaders still could choose to obtain special counsel to intervene in a case on its behalf if a statute is challenged in court. But the outside attorney would not act in place of the attorney general, as in the original proposal.

The bill tweaks proposed changes for governance of Walker’s jobs agency, Wisconsin Economic Development Corp., which Evers has sought to dissolve. Under the Legislature and governor in place for 2019 and 2020, Democrats would control eight of 12 seats on its governing board.

But the amended bill would ensure Republicans would maintain control of an 18-member board through September, at which point Democrats and Republicans would have equal influence over a 16-member board. The GOP-dominated board also would control who the agency’s CEO would be until Sept. 1.

Assembly Speaker Robin Vos, R-Rochester, said at a news conference Wednesday morning he hopes current WEDC CEO Mark Hogan would stay on in the position for the next nine months to change Evers’ mind on the agency, which he has vowed to dissolve.

Sen. Kathleen Vinehout, D-Alma, said this timeline raises the question of what the agency will be doing, and why Republican lawmakers want to protect it, for the next nine months.

The Senate amendment preserves the bill’s restrictions on early voting, permitting it to begin no sooner than two weeks before an election.

That would more than halve the current date window for early voting in large cities such as Madison or Milwaukee — shortly after record early voting totals, especially in those large cities, helped Democrats win every statewide race in the November election.

It also could land the state back in court, as a federal judge struck down a similar restriction in a 2016 ruling.

Senators took up but failed Wednesday to pass an Assembly GOP bill dealing with health coverage for people with pre-existing conditions. The vote was 16-17, with Republican Sens. David Craig and Chris Kapenga joining Democrats in opposition. Craig and Kapenga had proposed another version of the bill that also was rejected in a related Senate vote.

Vos said he was “deeply disappointed” at that outcome and said he’d keep pushing forward in the next session on the proposal, which he said was partially to blame for the delays in the vote.

Another controversial proposal, to move the state’s presidential primary from April to March, was left for dead Wednesday. So was a bill that was the original stated reason for the lame-duck session: a state subsidy package to preserve Kimberly-Clark manufacturing jobs in the Fox Cities.

Tax, welfare measures pass Senate

Vos told reporters Tuesday afternoon he expected all three lame-duck bills to head to the desk of lame-duck Gov. Scott Walker by the end of the night.

By Tuesday evening, Senate had passed two of three lame-duck bills before breaking to meet privately. The Assembly, originally set to convene at 1 p.m. Tuesday, didn’t meet until late at night and had only managed to pass the Senate version of a bill changing the application process for federal waivers and codifying Medicaid work requirements, among other things.

Meanwhile Evers, appearing on CNN late Tuesday, called the late-night lame-duck push “bad public policy, and it’s telling the people of Wisconsin that their vote doesn’t count.”

Evers acknowledged lawmakers were likely to pass some version of the bill package and that Walker is unlikely to veto it. Asked if he’d have any recourse if the bills become law, Evers said “everything’s on the table, from litigation to other actions.”

The two bills that passed the Senate Tuesday did so on party-line, 18-15 votes.

One of them writes into law some of the signature health and human services initiatives of Walker, including a Medicaid waiver approved in October by President Donald Trump’s administration. It requires some childless adults on Medicaid to comply with work requirements and pay premiums and co-pays.

The other bill, dealing with taxes and transportation, includes a tax break for certain high-earning small business owners. It is proposed to align the state tax code with the federal tax cut measure enacted by congressional Republican and Trump in December 2017.

It would allow small business owners who currently pay state income taxes on their individual tax returns to instead choose to pay taxes as corporate filers instead. The change would apply to so-called pass-through entities such as partnerships, S-corporations and limited liability corporations.

Nonpartisan legislative staffers testified to the Joint Finance Committee Monday -- in response to questioning by Rep. Chris Taylor, D-Madison -- that this option likely would be beneficial only for business owners those making more than about $250,000 or more a year.

Another provision of the bill aims to direct federal transportation funds to certain projects to exempt those not receiving federal money from federal requirements on worker wages and environmental protections.

The measure will exempt more state road and bridge projects from federal prevailing wage requirements and, Democrats contend, “Buy American” requirements.

They also have questioned if it will harm the state’s ability to land federal transportation funds. Nonpartisan legislative staffers testified Monday night that it wasn’t clear if the measure would do so.

Kaul, Doyle pan proposals

Several Democrats, including Attorney General-elect Kaul and former Gov. Jim Doyle, knocked the lame-duck proposals earlier in the day.

Doyle, who was attorney general from 1991 and 2003 and governor from 2003 to 2011, described the Legislature’s lame-duck package as an unprecedented departure from how Wisconsin state government has operated since its inception.

One of the bills set to come up Tuesday would curtail the powers of the governor and more radically, the attorney general. Evers defeated Walker in November, and Kaul defeated Republican incumbent Attorney General Brad Schimel.

Doyle reprimanded lawmakers for an attempt to strip powers that will almost certainly end up in the courts where the measures are almost certain to be struck down.

“The legislation is so obviously an unconstitutional violation of separation of powers that it’s going to fall,” Doyle said.

If lawmakers pass the package, Doyle suggested an “unseemly” legal battle between the executive and legislative branches is likely to last for years.

Vos at his news conference said he’s confident the provisions under consideration will be deemed constitutional and downplayed any costs involved in litigation.

Some legal minds contend the Legislature does in fact have the authority to limit the attorney general’s powers.

Rick Esenburg, the director of the conservative Wisconsin Institute for Law and Liberty, argued because the attorney general’s powers under the constitution are prescribed by by law, and therefore subject to change by the Legislature.

Pre-existing conditions

Kaul said Tuesday he believes part of the GOP impetus to curtail his powers was to thwart his and Evers’ bid to withdraw Wisconsin from a multi-state lawsuit seeking to overturn the federal Obamacare law.

“This was a central issue in the governor’s race,” Kaul said. “The Legislature is deciding if it passes this, it knows better than the people of Wisconsin. And that is not how our system is supposed to work.”

Evers pledged during the campaign that withdrawing the state from the Obamacare lawsuit would be one of his first official acts as governor.

The Assembly GOP bill that faltered Wednesday passed the Assembly last year. It would bar insurers from denying coverage to people with, or charging them more on the basis of, a pre-existing health condition -- though with exceptions if the person had a gap in coverage.

The bill also lacks Obamacare’s broader suite of protections for people with serious health issues, such as as the assurances that certain basic benefits are covered or that coverage will not be capped.

It also would not apply to those who get their insurance through a self-funded employer plan, because federal law only permits the federal government to regulate those plans.

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