Lame-Duck Power Grabs Escalate Unsettling Trend

By: - December 7, 2018 12:00 am

Opponents of an extraordinary session bill submitted by Wisconsin Republican legislators hold “Stop Lame Duck” signs at a rally outside the Wisconsin state Capitol in Madison this week. In an overnight lame-duck session this week, the GOP-controlled legislature passed a massive bill to strip powers from the state’s executive branch before Gov.-elect Tony Evers, a Democrat, is sworn in. John Hart/Wisconsin State Journal via AP

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The move by Republican legislators in Wisconsin and Michigan to strip power from incoming executive branch Democrats — akin to steps taken by the North Carolina GOP to undermine the incoming governor two years ago — sets an unsettling, even anti-democratic trend across state legislatures, experts say.

“The idea that, if our party loses the election, we’ll rearrange the powers of government, is one step short of cancelling elections altogether,” said Howard Schweber, professor of American politics and political theory at the University of Wisconsin-Madison.

When political parties are about to lose power, they often make a last-ditch effort to advance their policy priorities. But the rush to curtail the powers of the governor’s office ahead of an executive from the opposing party being sworn in takes partisan machinations to a new level, he said.

It’s likely to further inflame tensions between Republicans and Democrats in two Midwestern legislatures once known for moderation and civility. “It sets a horrible precedent for the next session,” said Wisconsin state Rep. Chris Taylor, a Democrat who represents Madison.

And if the moves hold up to legal scrutiny — and Republican voters continue to support such tactics — it’s likely that other states facing divided government will follow suit, said Paul Nolette, associate professor of political science at Marquette University. In our partisan era, “if there’s no political repercussion, there’s really no incentive not to do this.”

State lawmakers from across the country, gathered at an annual meeting in Washington, D.C., of the National Conference of State Legislatures, are watching carefully.

“On the surface it sounds like politics, not policy,” said Oregon state Sen. Bill Hansell, a Republican. “If they are changing the rules because a person is in a different party, that would be a situation where I would question the validity of it.”

Maryland state Sen. Cheryl Kagan, a Democrat, said the moves undermine public confidence in government. “It’s just crazy,” she said. “This is a valid legislative conversation that should be had during a regular session — not a lame-duck one.”

Arizona Senate President Pro Tem John Kavanagh, a Republican, agreed. “It’s a poor way to govern,” he said.

The package of legislation Wisconsin lawmakers plowed through in an overnight session this week would make it easier for the legislature to block rule changes proposed by the governor. It also would allow lawmakers to temporarily control the board of the Wisconsin Economic Development Corporation, an agency incoming Gov. Tony Evers — who bested GOP Gov. Scott Walker by a percentage point in November — has said he wants to dismantle, according to the Milwaukee Journal-Sentinel.

The measures also would limit early voting to just two weeks and make it harder for the incoming attorney general, Democrat Josh Kaul, to pull the state out of lawsuits such as Wisconsin’s joint case with other states against the federal Affordable Care Act, among many other changes. The proposed early voting restrictions are likely to spur litigation, the Journal-Sentinel reported.

Republican leaders told the Associated Press they were not doing anything “outrageous.”

“State lawmakers have taken an important step in restoring the balance of power in government,” Wisconsin Assembly Speaker Robin Vos said in a statement. “Our proposals guarantee that the legislature always has a seat at the table.”

In a tweet Wednesday, Vos accused Democrats of “exaggerating and resorting to hyperbole throughout the debate.”

But Republicans also have made it clear that they’re taking action because they don’t trust Evers. In an interview with a conservative radio station Monday, Senate Majority Leader Scott Fitzgerald warned that Evers will have “absolutely the most liberal administration that we have ever seen in the state of Wisconsin.”

Walker hasn’t said whether he’ll sign the wide-ranging bills.

Wisconsin Republicans passed some laws to heighten the governor’s power back in 2011, after Walker was elected, Marquette’s Nolette said. “When a Republican comes in, it’s like — we’ve got to boost his power, and when a Democrat comes in, take it away.”

The fights over how power is distributed in the Michigan and Wisconsin governments have roots in North Carolina. The Republican legislature there moved in 2016 to limit the power of incoming Democratic Gov. Roy Cooper to hire and fire state employees, and to appoint Cabinet members and trustees to the University of North Carolina system, among other moves.

And they’re part of a larger pattern of “norm-busting” by Republicans willing to do whatever it takes to win, Wisconsin’s Schweber said. Take Kentucky Republican and U.S. Senate Majority Leader Mitch McConnell’s 2016 decision to block then-President Barack Obama’s nomination of Merrick Garland to the Supreme Court, a departure from congressional tradition. The seat stayed open until President Donald Trump could make his own appointment.

The moves at the state level indicate that Republican lawmakers see their party’s hold on power as more important than the structure of government, Schweber said.

Some Republican lawmakers say that Democrats are hypocritical for getting so up in arms now, given their own legislative shenanigans in the past.

Republican South Dakota state Sen. Jim Bolin, speaking at the state legislatures conference in Washington, recalled an example from Wisconsin. After Republicans there took control of the Assembly, Senate and governorship in 2011, Democratic legislators hid out in Illinois to try to prevent Republicans from taking action on Walker’s plan to cut union benefits as a way to repair the state budget.

“I’m reluctant to support what they’re doing now,” Bolin said, referring to Wisconsin Republicans. “But you had Democrats deserting the legislature and going out of state where they couldn’t be tracked down. The Democrats are absolutely hypocritical to criticize what the Republicans are doing.”

Meanwhile, in Michigan this week, Republican lawmakers proposed two bills to weaken the executive branch. They would allow the legislature to intervene in lawsuits and give oversight of campaign finance law to a commission, thus taking power away from the incoming Democratic attorney general and secretary of state.

Gov.-elect Gretchen Whitmer also is a Democrat, making it the first time the party has held all three positions since 1990.

Michigan lawmakers also are trying to weaken marijuana legalization and voter registration ballot initiatives that voters approved this year. And they have scaled back minimum wage and paid leave laws that began as ballot initiative petitions.

“They’re either circumventing the will of the voters, or they’re trying to take power away from the new administration,” said Senate Democratic Leader Jim Ananich, who represents Flint. He said he’s not sure where Republicans are getting their ideas for shifting the balance of power, but he doubts it’s from an American history textbook.

Michigan’s Ananich said the lame-duck legislation — which drew angry protesters to the state capitol — will only encourage Democrats to fight harder and, he hopes, inspire voters to kick Republican lawmakers out of office.

Although Democrats will continue to try to work with Republicans, Wisconsin’s Taylor said, “We will not forget this.”

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Sophie Quinton

Sophie Quinton writes about fiscal and economic policy for Stateline. Previously, she wrote for National Journal.