Some people wonder why we should care about legal actions challenging Wisconsin Gov. Scott Walker's anti-union law. The answer is simple: What's happening there is all part of the same right-wing attack. A war on women, people of color and working people that tea-party Republicans are waging to turn back the clock in America. The open meeting law violated in Wisconsin is part of that war. It is an attempt to change the legislative process by stealthily removing pesky citizens from government decision-making. Why? Because an open and transparent law-making process would doom many or all of those proposals to failure.
A lawsuit initiated by Dane County, Wisconsin, District Attorney Ismael Ozanne would hold four GOP lawmakers accountable for violating the open meetings law that codifies citizens' right to open government provided in the state constitution, and void the anti-union law passed in violation of these rights.
The open meetings provision ensures that the public is informed on policies and laws debated by lawmakers before they become law and enables us to participate in that debate. It was because the public had notice beforehand that people in Wisconsin were able to attend meetings to provide testimony on their first shot to pass the law. That attendance ripened into protests against the anti-union law at the capitol in Madison. The GOP then took a second shot at the "revised" anti-union law, but this time they took steps to ram the measure through the legislative process without input from the public.
The battle in Wisconsin is similar to the budget battle in California, where GOP lawmakers want to "enact" new laws in closed meetings. One proposal is directed at "reforming" a landmark environmental law that provides citizens with a right to participate in governmental decisions that affect our health, quality of life and natural resources. The stakes include whether lawsuits challenging compliance with this law should be essentially limited to the rich.
The Wisconsin lawsuit involves protection of one of the primary legal rights we have for participating in government affairs. This is what Wisconsin Attorney General Van Hollen said about the open meetings law before this anti-union law mess:
Effective citizen oversight of the workings of government is essential to our democracy and promotes confidence in it. Public access to meetings of governmental bodies is a vital aspect of this principle.
The open meetings law recognizes that a representative form of government is dependent upon an informed public. To ensure that the public is informed and can participate in discussions about proposed policies and laws, the open meetings law gives citizens the right to attend government meetings. Transparency rather than secrecy. In a compliance guide for this open meetings law written by the Department of Justice and AG Van Hollen, the AG states clearly that "generally speaking, the open meetings law applies to the state Legislature, including the senate, assembly, and any committees or subunits of those bodies."
There are two simple requirements: (1) the public must be given advance notice of meetings covered by the law and (2) the meeting must be an open session where the public can attend, observe and governmental bodies may set aside time for citizens to make comments and objections.
As Judge Maryann Sumi stated when she issued the temporary restraining order, the matter of notice is not a minor issue:
[W]e in Wisconsin own our government. We own it. And we own it in three ways. We own it by the vote. We own it by the duty to provide open and public access to records, so that the activities of government can be monitored. And we own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters.
That’s our right. And a violation of that right is tantamount to a violation of what is already provided in the Constitution, open doors, open access, and that nothing in this government happens in secret.
Judge Sumi also pointed out how this right to open meetings is most important with controversial issues:
An open meetings law is not necessary to ensure openness in easy and noncontroversial matters where no one really cares whether the meeting is open or not. Like the First Amendment, which exists to protect unfavored speech, the Open Meetings Law exists to ensure open government in controversial matters. The Open Meetings Law functions to ensure that these difficult matters are decided without bias or regard for issues such as race, gender, or economic status, and with highest regard for the interests of the community. This requires, with very few exceptions, that governmental meetings be held in full view of the community.
Oftentimes, the reason citizens can protest in some form against proposed government policies or laws is because of open meeting laws. When Gov. Walker announced his proposed "budget repair bill" in early February, that set off protests organized by unions working hard to inform the public of his plan. The sleep-in at the Capitol happened as citizens camped out waiting to testify before the Joint Finance Committee when it held public hearings. Thousands lined up to testify.
After Democratic legislators left the state to try to keep Walker's anti-union law from passing, the GOP created a stealth plan to pass it anyway.
District Attorney Ozanne quotes Senator Scott Fitzgerald, who advocated that this anti-union measure could not become law unless the GOP created the new Joint Conference Committee. Senator Fitzgerald stated to his colleagues on March 9th that the "Senate is prevented from further establishing its position due to the lack of a special quorum required under" the Wisconsin Constitution and thus "it is time to move this process forward" by creating the Joint Conference Committee. That same day, the GOP "hastily created a conference committee." To prevent public participation in this new committee's meeting, the GOP did not provide the requisite timely notice or even adequately state the subject of the meeting in the tardy notice or provide sufficient room for the public to attend the meeting if they were lucky to learn about the meeting. The committee then quickly sent the bill to the legislature and then the governor. Ozanne notes that it "is clear" that "but for the voidable action of the Joint Committee of Conference, neither the Senate nor the Assembly could have proceeded further" on the anti-union measure.
However, the GOP faced one more step. Under Wisconsin law, a law is not effective until the Secretary of State publishes the law in the official state newspaper to provide notice to the public of a new law. The Secretary of State planned to do this publication on March 25 until Ozanne obtained a TRO on March 18th to prevent publication.
A panicked AG appealed on March 21, seeking to nix the TRO before the 25th so the law could be published. The AG argued that there would be irreparable harm if the issue was not decided until a hearing on a temporary injunction on March 29 and April 1.
But the court did not nix the TRO and March 25 arrives. The Legislative Reference Bureau posted a link to this law at the Legislature's website, but the Secretary of State did not publish the law at the official state newspaper in compliance with the TRO. So, the desperate GOP tried to spin that this link posting was the legally required publication of the law. District Attorney Ozanne's office emailed me his reaction of surprise that "an effort was undertaken to try" to make this law effective. (His statement is included in my previous diary.)
The heart of this case is the principle that lawmakers don't have a right to a get-out-of-trouble card but should be held legally accountable when they violate the law. Too often Democrats don't stand up for the rule of law, but DA Ozanne is doing just that.
This case is also about not letting lawmakers get away with ramming a bill through the Legislature in a stealth manner designed to limit public oversight and participation, whether it is listening in the audience of the meeting, testifying or protesting.
Whatever happens in Wisconsin, the legal ruling will have implications beyond that state. Many states, such as California, have open meeting laws. When courts do not have legal precedent from their own state, they often use case law from other states.
The GOP's attack on laws protecting democracy is not limited to Wisconsin. In California, the GOP is trying to pressure the Democrats in the current budget dispute to "reform" our California Environmental Quality Act, known as CEQA, by limiting the public's rights under that hard-won law. CEQA covers many issues, but it is also designed to provide the public with a right to participate in government affairs, attend meetings, comment on a proposal for a project (such as building new roads or apartment buildings or subdivisions) to address issues such as impact of the proposed project on traffic, water resources and pollution. CEQA also provides citizens with a right to file a lawsuit when the project proponent or the government does not comply with the CEQA.
The nature of the GOP's proposed CEQA changes is so outrageous that it would likely not be able to become law during the regular legislative process. So some GOP lawmakers have threatened to withhold votes on Gov. Brown's budget proposal unless the CEQA rules are rewritten. One proposal is that "citizens would keep limited rights to file litigation, but only by making a deposit to the court of $50,000, or 1% of a construction project's costs if that amount is smaller."
That's not all. The GOP released a seven-page list of demands that need to be met in order to vote for Gov. Brown's budget: (list available at link)
The list includes much-discussed efforts to scale back public pensions, impose stricter limits on state spending and ease regulatory rules.
But other wide-ranging proposals were added, such as ending the seniority system for teachers facing layoffs, moving next year’s presidential primary to March and restoring funding to protect rural lands from development. The document also asks Brown to abandon his push to eliminate redevelopment agencies, rewrite a tax formula favorable to corporations and ax a corporate tax break for businesses hiring workers in blighted areas.
As people in other countries are fighting, risking their lives for protest and revolution to oppose oppressive governments and move forward with democratic reforms, some in our country want to strip us of our rights to participate in a transparent government where we have an oversight role.