ELECTIONS

Wisconsin lawmakers reject bill to protect pre-existing conditions, scale back Democrats' power

Patrick Marley and Molly Beck

Milwaukee Journal Sentinel

MADISON - After an all-night session, Republican lawmakers Wednesday sent outgoing Republican Gov. Scott Walker legislation to limit early voting and diminish the powers of the Democrat who beat him last month.

Walker in recent days has signaled he will sign it before he leaves office Jan. 7.

In another early-morning vote, state senators failed to deliver on a campaign promise from Walker to approve legislation that protecting health insurance coverage for those with pre-existing conditions.

All Democrats and two Republicans in the Senate voted against that legislation, killing a bill that passed the Assembly last year. Legislative leaders said they would try again to pass such protections early next year.

The failed legislation came as Republicans approved their measure curtailing the powers of incoming Democratic Gov. Tony Evers and incoming Democratic Attorney General Josh Kaul. The legislation would hamper them from withdrawing the state from a federal lawsuit seeking to overturn the Affordable Care Act and the protections it provides for coverage of pre-existing conditions.

The issue was a central in both their races as Democrats hammered Republicans over the state's participation in the lawsuit that Walker authorized.

Republican Sens. David Craig of Big Bend and Chris Kapenga of Delafield joined Democrats in rejecting the legislation after the rest of the Republican caucus refused to support revisions to the bill from Craig and Kapenga that would have created a high risk-sharing insurance pool.

Most Republicans opposed the language as being too similar to the Affordable Care Act while Democratic senators voted against the bill because the legislation allowed insurers to impose lifetime caps on coverage.

Overnight session

Republicans spent much of the night working behind closed doors on the legislation curbing Evers' power and unveiled a modified version of it around 4 a.m.

Senators passed the legislation 17-16, with Republican Sen. Rob Cowles of Green Bay joining Democrats in opposing the legislation. The Assembly passed the measure 56-27 along party lines.

The updated bill would until September give the Legislature control of the Wisconsin Economic Development Corp. board and allow the board to choose the leader of the agency, instead of the governor as is the case now. Republicans would initially have a majority of the board but after September control would be split evenly between Republicans and Democrats.

Evers has said he wants to dismantle the agency and Republicans said they hoped he would come to see its value over the next nine months, when Republicans have control of the board.

The original bill would have permanently eliminated Evers' ability to pick the CEO of the jobs agency.

Lawmakers also removed a measure that would have allowed the Legislature to replace incoming Democratic Attorney General Josh Kaul with private attorneys picked by lawmakers at taxpayer expense. Other provisions remained that would allow lawmakers to intervene in lawsuits when state statutes are challenged and hire private attorneys when they are sued.

Republicans backed off on some of their changes limiting Evers' control of state rules, but kept in place a provision that would expand lawmakers' power to block those rules.

Both houses wrapped up soon after the sun came up. It was the latest session for the Senate since 1995, when it deliberated over the legislation to build Miller Park, according to Senate Chief Clerk Jeff Renk.

Sleep-deprived Democrats panned both the legislation and the process Republicans used to pass it. For most of the early-morning hours, rank-and-file members from both parties were in the dark about what would be taken up.

"We've had 132 legislators milling around this building for a day. And night. And morning," Senate Minority Leader Jennifer Shilling of La Crosse said while unsuccessfully lobbying to recess until lawmakers could get some sleep.

"Not a way to run a government!" Democratic Sen. Dave Hansen of Green Bay said at 4 a.m. when a new, 56-page version of the legislation was released.

Assembly Speaker Robin Vos of Rochester told reporters he wanted to make sure lawmakers have as much control of state government as Evers.

“We did have an election. Whether everyone here likes it or not, I respect the fact that Tony Evers is the governor and he’s going to be starting on January 7,” Vos said at a news conference. “But he’s not the governor today and that’s why we’re going to make sure the powers of each branch are as equal as they can be.”

Democrats scoffed at that notion.

"Co-equal branches is not subjective depending who is in office," said Assembly Democratic Leader Gordon Hintz of Oshkosh. "It’s about the fundamental structure of how government is supposed to work and you guys are fundamentally changing that."

In an interview Tuesday with CNN's Don Lemon, Evers said: “I always try to reach common ground. ... We’re going to continue doing that but this is going to make it much more difficult.”

He called the legislation a “hot mess,” noting that among other limits on his power it would prevent him from making the state Capitol a gun-free zone without the approval of lawmakers.

“There’s 141 pages of that stuff in there,” he said.

To Wisconsin Democrats, the overall plan was a repudiation of the Nov. 6 election that felled Walker and swept Democrats into statewide offices. To Republicans, it was the only way to ensure major changes enacted over the past eight years wouldn't evaporate under Evers.

On mostly party-line votes, the Senate and Assembly passed a bill that would codify policies requiring some people to work to receive health care coverage under BadgerCare Plus and take drug tests to qualify for food stamps.

They also passed along party lines legislation to concentrate federal money into a smaller number of road projects so that other projects could avoid having to comply with federal environmental and wage laws. Another provision slightly decreased income tax rates.

The Senate approved more than 80 appointments by Walker, also on party-line votes. Democrats objected that most of the appointees had not had public hearings and had not yet submitted statements of economic interest.

But most of the focus was on the heart of the plan, which both houses debated as they waited for the sun to come up. The session drew national attention and threats of lawsuits.

Eric Holder, the first attorney general under former President Barack Obama and a potential presidential contender himself, said he believed Walker would hurt his reputation if the plan was not significantly changed and he signed it into law before leaving office.

State Treasurer-elect Sarah Godlewski (from left), Lt. Governor-elect Mandela Barnes, Governor-elect Tony Evers, and Attorney General-elect Josh Kaul and held a news conference in Madison to address the legislation that was passed limitting power of the governor and attorney general during the floor sessions.

“I think these bills, if passed and if signed by him, will be a stain on his legacy and will have a negative impact on his ability to seek office in the future," Holder said.

Sheldon Lubar, a Milwaukee businessman and philanthropist who has long backed Walker, released an email Tuesday he sent to Walker telling him he’d voted against him in the November election and believed the lame-duck legislation “will damage Wisconsin as it ignores the will of the majority of Wisconsin voters."

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Litigation seemed certain over one provision that would limit early voting to two weeks. A similar limit was found unconstitutional by a federal judge in 2016.

Vos said he was confident the early voting limit would stand because unlike the earlier one, it would allow weekend and evening voting. The restrictions on Evers' power and other parts of the lame-duck legislation will stand as well if challenged, he predicted.

“They have every right to go to the courts to ask the courts if what we have done is constitutional,” Vos said. “I believe, the advice I’ve been given is, that everything we’ve done is within the bounds of the constitution and I think it will be found that way. But of course they have the right; that’s our process — three co-equal branches.”

Evers, Kaul and others said litigation was likely over the provisions scaling back the power of the governor and attorney general.

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Democratic former Gov. Jim Doyle in a rare public appearance blasted the ideas as blatant "unconstitutional violations of separations of powers" that will lead to years of litigation.

The legislation:

Limits early voting to two weeks. A similar limit was found unconstitutional in 2016 and Democrats have threatened to take legal action again.
Gives Republicans more say over the Wisconsin Economic Development Corp., including over its enterprise zone program that gives tax breaks to individual businesses. WEDC's board, rather than the governor, would appoint WEDC's leader until September.
Puts lawmakers in charge of litigation, allowing them to keep alive a lawsuit to overturn the Affordable Care Act, widely known as Obamacare.
Gives lawmakers — instead of the attorney general — control over how court settlements are spent.
Makes it easier for lawmakers to hire private attorneys at taxpayer expense when they are accused of violating the open records law or other statutes.
Eliminates the solicitor general's office, which oversees high-profile litigation.
Modestly lowers the state’s income tax rates next year to offset about $60 million in online sales taxes from out-of-state retailers that Wisconsin recently began collecting.
Requires Evers to get permission from lawmakers to ban guns in the state Capitol.
Bars judges from giving deference to state agencies’ interpretations of laws when they are challenged in court. That could make it easier to win lawsuits challenging how environmental regulations and other laws are being enforced.
Broadens lawmakers' powers to block rules written by the Evers administration to implement state laws.
Requires the Evers administration to report if the governor pardons anyone or his aides release anyone from prison early.
Forces Evers to get permission from the Legislature before asking the federal government to make any changes to programs that are run jointly by the state and federal governments. That would limit the governor's flexibility in how he runs public benefits programs. If the Legislature’s budget committee determined the administration was not implementing recent changes to those programs, it could reduce funding and staffing for state agencies.
Requires Evers to go along with a plan aimed at reducing premiums for insurance plans offered through the Affordable Care Act’s marketplaces for individuals.
Channels federal money into a smaller number of state road projects, so that other projects could avoid having to comply with federal environmental and wage laws

Casualties of the extraordinary session included a proposal to move the 2020 presidential primary election to benefit the election bid of a conservative Supreme Court justice.

The reason lawmakers were returning to Madison before January in the first place also didn't make it to the floor: a tax incentive package for Fox Valley paper maker Kimberly-Clark.

Mary Spicuzza of the Milwaukee Journal Sentinel contributed to this report.

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