Secret moves hide Wisconsin lawmakers’ actions from public

MADISON, Wis. (AP) — It was 10:30 p.m. on June 3, 2011, the last day of deliberations on Wisconsin’s state budget. Members of the Joint Finance Committee, some with deep circles under their eyes after days of fighting over budget items, perked up when two Republicans, Sen. Glenn Grothman and Rep. Robin Vos, unveiled a surprise: a massive tax cut worth hundreds of millions of dollars for manufacturers and agricultural businesses.

The official estimate projected that when fully phased in, the measure would cut revenue to the state — which had already made large cuts to education and other programs to balance the budget — by $128.7 million a year.

Democratic Rep. Tamara Grigsby of Milwaukee appeared stunned by the size of the tax cut, asking the Legislative Fiscal Bureau representative to add up the total cost over its four-year phase-in.

“This is nauseating,” said Grigsby, who left the Legislature in 2013 and died in 2016. “Really? $320 million to start, and then $128.7 million after that per year? Really? Wow. Wow.”

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The nonprofit news outlet Wisconsin Center for Investigative Journalism provided this article to The Associated Press through a collaboration with Institute for Nonprofit News.

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Vos, then co-chairman of the committee, and Grothman, now a U.S. representative, argued it would bring jobs to Wisconsin, which at the time had a 7.6 percent unemployment rate — although the measure itself had no requirement that jobs be added, or even retained, to qualify for the credit.

After a brief and sometimes heated debate, the tax cut, now known as the Manufacturing and Agriculture Credit, passed on a 12-4 party-line vote.

Within 30 minutes, without any public hearings or public notice, lawmakers had endorsed one of the biggest tax breaks enacted under Gov. Scott Walker. Within 13 days, the Republican-led Assembly and Senate had approved the 2011-13 spending plan, including the tax cut, which Walker signed into law.

Since 2010, when voters swept Republicans into power, Wisconsin legislators have increasingly used such secretive maneuvers to keep the public in the dark about major spending and policy changes, interviews and records show.

An investigation by the Wisconsin Center for Investigative Journalism found the Legislature systematically diminishes the voices of the public by: introducing budget amendments at the end of the approval process with no public notice or debate; approving anonymous, last-minute budget motions containing a grab bag of changes, including major policy items that have nothing to do with state spending; and changing the scope and impact of a bill after its public hearing has been held, which excludes regular citizens from having meaningful influence on legislation before it is enacted.

Secretive techniques are not unique to Republicans — or even to Wisconsin. When they controlled the Legislature and governor’s office before the 2010 elections, Democrats played that game, too — notably with their own end-of-the-session wrap-up budget bills of anonymously authored items.

Estimates now show the tax break slipped into the 2011-13 budget will end up costing the state $334 million in revenue this budget year — more than double originally projected.

“The fact that the tax cut was passed at the last minute with no public input was not good,” said Tamarine Cornelius, an analyst with the left-leaning Wisconsin Budget Project. “But it’s not that unusual. A lot of things get slipped into budget amendments; it’s just that they don’t usually wind up costing upwards of $300 million a year.”

Democratic gubernatorial candidate Tony Evers has called for the tax credit to be severely curtailed, noting that nearly 80 percent of the money goes to people and businesses earning at least $1 million a year. Walker has said eliminating the credit would harm Wisconsin’s economy.

Studies disagree about whether the credit spurred job growth, with University of Wisconsin-Madison economics professor Noah Williams crediting it with creating 20,000 manufacturing jobs while the Wisconsin Budget Project cites federal statistics showing state manufacturing job and wage growth continue to be slower here than the national average.

But one thing is indisputable: The public and many lawmakers never had the chance to hear the merits and risks of the plan before it was passed.

One secretive mechanism used by the Legislature is the final omnibus budget motion, sometimes known as motion 999, although it could bear any number. The motion compiles a vast array of anonymously introduced items as a package, then the Joint Finance Committee votes on the changes. The public has little chance to comment.

Former state Sen. Tim Cullen, who served as Senate majority leader, said in the 1970s and ’80s, 999 motions had an informal limit of $25,000 per item and were prohibited from having broad or statewide impact.

However, in recent years, these budget fixes have included sweeping measures such as the attempt to dismantle the Wisconsin Open Records Law — which sparked a statewide backlash that crossed ideological lines, prompting Walker and GOP leaders to remove it from the 2015-17 budget.

“They tried to destroy the Open Records Law and open meetings. That was the most atrocious thing I’ve seen in years and years and years,” said Orville Seymer, founder of Citizens for Responsible Government, a conservative government accountability group.

A comparison of these end-of-the-session budget motions showed both parties have used the mechanism “as a hiding spot for pet projects,” but the use has ballooned under Walker, according to Larry Gallup, a senior editor at USA TODAY NETWORK-Wisconsin.

“In the five budget bills before 2011, the 999 motion averaged five pages and 15 motions,” Gallup wrote in a 2017 column for the Wisconsin Freedom of Information Council. “But with the 2011-13 bill, the bill expanded to 11 pages and 54 proposals. By 2015-17, it had ballooned to 24 pages and 81 proposals.”

Most legislative candidates who answered a recent poll on government openness agree that anonymous motions should be a thing of the past. All but one of the 75 legislative candidates in the upcoming election who answered the Wisconsin Freedom of Information Council poll agreed that all bills, motions and amendments should include sponsor names.

Republican Rep. Ron Tusler of Menasha, who is running for re-election to Assembly District 3, commented in the poll: “If you can’t even stand by your own bill, you shouldn’t ask me to stand by it.”

His opponent, Democrat Scott Gavin of Little Chute, agreed, saying, “Accountability is key.”

The 2015-17 final wrap-up budget motion included a measure allowing out-of-state risk retention groups to sell medical liability insurance to doctors without meeting Wisconsin regulations designed to protect patients from malpractice.

Risk retention groups are corporations that collect and distribute risk among policyholders engaged in the same or similar practices, such as anesthesiologists and ophthalmologists. Despite the fact that it was introduced by fellow Republicans, top officials in the Walker administration testified against it, and it died in committee in 2014.

One year after the bill was killed, it quietly re-appeared in a 999 motion. The drafting files at the Legislative Reference Bureau for the original bill reveal one possible reason it was resurrected from the dead.

Co-chairman of the Joint Finance Committee, Republican Rep. John Nygren of Marinette, had requested the bill be drafted after being contacted by a lobbyist for out-of-state risk retention groups Ophthalmic Mutual Insurance Co. and Preferred Physicians Medical Risk Retention Group Inc. The co-chairwoman, Republican Sen. Alberta Darling of River Hills, authored the companion Senate bill.

According to an email in the drafting file from the Office of the Commissioner of Insurance, the companies had been given options for becoming licensed in Wisconsin but sought to avoid the state’s regulations protecting patients and doctors when such companies go out of business.

Nygren defended the move, saying such companies can lower costs for health care providers and patients. He told the Center in an email that the original bill did get a public hearing and that the budget is “the most publicly debated and scrutinized bill the Legislature passes during the session.” He added, “I believe the public plays a vital role in lawmaking and democracy.”

In 2017, Nygren and Darling said they hoped to avoid using the controversial motion. But when the 2017-19 budget was passed in September 2017, the two again authorized the final motion to make last-minute changes without public input, including loosening standards for setting up charter schools and requiring state universities to track how many hours each instructor teaches.

Barry Burden, professor of political science at the University of Wisconsin-Madison and director of the Elections Research Center, said budget bills on the state and federal level are favorite hiding places for “things (lawmakers) thought might not pass on their own.” Burden said the anonymity of the 999 motion is politically enticing because the majority party can “bury” unpopular items in bigger motions.

This kind of opacity is not unique to Wisconsin.

In November 2017, the Kansas City Star published an investigation which found that more than 90 percent of Kansas laws over the past decade began as anonymously submitted bills, meaning the people of Kansas typically did not know who introduced their legislation or why.

Democratic State Sen. Kathleen Vinehout of Alma said many interests, such as the rent-to-own industry, have begun to exert more influence over Wisconsin’s budget-making process because of this secretive technique.

“The problem the Legislature faces now is that the groups, these shadow groups, have much more power to be able to get pieces of policy that they want into the budget,” Vinehout said.

Another stealth move is reminiscent of the 1978 film, Invasion of the Body Snatchers, in which aliens inhabit the bodies of people while keeping their outside appearance the same — but in these cases, it is legislation that is secretly transformed.

These are bills introduced with one purpose, but later amended to do something entirely different — often after public hearings have ended. One such body snatcher bill, Senate Bill 54, was introduced in February 2017. The bill would have required the state to recommend revoking extended supervision, parole or probation if a person is charged with a new crime.

One year later, a group of GOP lawmakers added a $350 million prison to SB 54, and the Assembly passed it that same day, with no chance for public input. Molly Collins, advocacy director of the American Civil Liberties Union of Wisconsin, said more than 50 groups mobilized to lobby against the bill in the Senate, where it died.

Said Collins: “Building a new prison had not been discussed, let alone borrowing $350 million to fund it.”