Governor’s dealmaking raises questions from opponents

Exact rules for what state’s chief executive can, can’t do not clear

MADISON - Gov. Scott Walker’s negotiations to get his budget through the Legislature shine a new light on what is and isn’t permissible when it comes to political deal-making in Wisconsin.

The exact rules aren’t clear. No court has ever interpreted the state laws that limit the kinds of deals lawmakers and governors can cut, according to the Legislature’s nonpartisan legal advisers.

Opponents of Walker question the tactics he used to get a final agreement on the budget, contending he may have violated limits on what can be negotiated. Aides to the governor and senators he bargained with say they followed all state rules.

“There was clearly some deal made,” said Susan Crawford, an attorney who served as chief counsel to Democratic Gov. Jim Doyle. “What were the terms of the deal exactly? I think that’s something the public has a right to know.”

Mike Mikalsen, an aide to Sen. Steve Nass (RWhitewater), said the governor and the senators he worked with were clear with the public about their agreement and made it public as soon as the Senate had voted on the budget. Their talks were by the book, he said.

“It was completely aboveboard,” Mikalsen said.

The budget was delayed for nearly three months because Walker and his fellow Republicans who control the Legislature could not agree on taxes and transportation funding. This month they reached a deal, but it stalled anew in the Senate because conservatives didn’t like aspects of it.

Walker agreed with those senators to veto some provisions of the budget. The same day he did that, he issued an executive order creating an inspector general at the Department of Transportation — an idea the conservatives he was negotiating with had sought.

Lawmakers and governors are free to negotiate any deals within a budget or another piece of legislation.

But they are barred from cutting deals involving multiple pieces of legislation — such as by agreeing to support one bill in exchange for backing another one. That’s called “logrolling” when it involves lawmakers reaching a deal and “executive favor” when it involves a governor and one or more lawmakers.

State law does not specifically bar governors from negotiating on issues that involve both a budget and an executive order.

Crawford said the talks between the governor and legislators appeared to be a “careful effort to work around the logrolling prohibition.”

“Arguably that is not a technical violation of that statute, even though it is conduct that falls within the spirit of the law,” she said.

Walker made his deal with three GOP senators — Nass, Chris Kapenga of Delafield and Duey Stroebel of Saukville.

Just after the budget vote, the senators disclosed parts of their agreement, which included a promise from Walker to structure his vetoes so he could speed up the repeal of a law that sets minimum wages on publicly funded construction jobs and tighten limits on when school referendums can be held.

When Walker finalized the budget a week later, he also issued an executive order creating an inspector general’s office at the DOT.

Establishing a DOT inspector general was also a central provision of Senate Bill 374. Kapenga introduced that bill in August, and Nass and Stroebel were among those who signed onto it.

The executive order was not part of the negotiations with the three senators, according to Mikalsen and Walker spokesman Tom Evenson.

“The decision to create an office of inspector general at DOT was made before discussions with the Senate,” Evenson said by email.

He did not explain why the governor released the executive order alongside the budget if he had decided what to do earlier. He also did not answer questions about why the provision closely matched what the three senators had sought with their bill.

Scot Ross of the liberal group One Wisconsin Now said he had a tough time believing creating the inspector general’s office was not part of the discussions with the senators.

“It is not a coincidence that Governor Walker issued an executive order implementing provisions of a bill authored by all three Republican senators who publicly delayed budget passage until their demands were met,” he said by email.

“Legal lines may have been crossed when Governor Walker was bargaining for the votes of holdout Republican Senators Kapenga, Nass and Stroebel, and we will pursue all means available to us to make sure this gang is held accountable for their actions.”

Mikalsen said the claims by Ross about possible impropriety were “absurd.”

“He throws these things out there so he can go fundraise,” Mikalsen said.

The Legislative Council, which advises lawmakers on legal issues, in a 2015 memo noted no courts have ever reviewed the issue.

“Neither the courts nor the office of the attorney general have formally interpreted Wisconsin’s prohibitions against logrolling,” a council attorney wrote. “As a result, it is difficult to determine how the prohibitions would be applied in a particular situation.”

“There was clearly some deal made. What were the terms of the deal exactly? I think that’s something the public has a right to know.” SUSAN CRAWFORD ATTORNEY WHO SERVED AS CHIEF COUNSEL TO DEMOCRATIC GOV. JIM DOYLE