Wisconsin lawmakers tried to sneak one by the state’s journalists over the holiday weekend—and found that the watchdog wasn’t asleep.
On Thursday, July 2, the Republican-led legislature’s joint finance committee voted along party lines, 12-4, to add a broad provision to the budget bill that would sharply curtail the state’s open-records law. No longer would reporters or members of the public have access to communications between elected officials and their staff, or “deliberative materials,” such as draft legislation and briefings. The measure also would have created a nationally unprecedented “legislator disclosure privilege,” permitting lawmakers to keep records secret if they are being sued, empowering them to bar current and former staff from disclosing information, and admonishing legislative agencies to “at all times observe the confidential nature” of records covered by the privilege.
In a state that has often seen pitched political battle in recent years, the measure threatened to shroud much of the lawmaking process in secrecy. And in its 11th-hour timing, the move was reminiscent of another move that would have disproportionately affected journalists: During the 2013 budget negotiations, lawmakers voted to expel the nonprofit Wisconsin Center for Investigative Journalism (WCIJ) from its offices at the University of Wisconsin.
In that case, WCIJ fought back and won. This case, too, looks to have a happy ending for open-government advocates: In the face of a widespread and bipartisan backlash, the lawmakers reversed course in less than 48 hours.
The response was fueled by aggressive media coverage over the holiday weekend. Media outlets in every corner of the state jumped on the story, giving it front-page play. The Milwaukee Journal Sentinel even published its scathing editorial on the front page.
“News organizations around the state showed that, despite recent staff reductions, when necessary, they can marshal resources to aggressively cover a story that literally threatens our democracy,” said Andy Hall, executive director of the WCIJ.
The news coverage was echoed in active social media discussion, especially on the #opengov and #wibudget hashtags. And spokespeople for conservative, liberal, and nonpartisan organizations released statements, did interviews, and mobilized their memberships. Key public officials on both sides of the aisle did the same, including Attorney General Brad Schimel—the official who handles open records cases, and who only last month launched the state’s Office of Open Government. Schimel, a Republican, said in a statement that the measure would “move Wisconsin in the wrong direction.”
In much of this discussion, transparency advocates leveraged the occasion of Independence Day to heighten the poignancy of their case. And on the Fourth of July, Gov. Scott Walker and GOP legislative leaders announced in a joint statement that the change to the records law “will be removed from the budget in its entirety.” The measure, they wrote, was only meant to “provide a reasonable solution to protect constituents’ privacy and to encourage a deliberative process between elected officials and their staff in developing policy. It was never intended to inhibit transparent government in any way.”
The turnaround can be credited, at least in part, to the political diversity of those who spoke against the measure. In an uncommonly polarized state, it might have been easy to dismiss opponents as being reflexively opposed to Walker, a high-profile Republican and a top contender for the GOP presidential nomination, were it not for conservatives joining the outcry. “It does illustrate that people across a wide variety of occupations and political ideologies … actually do have a common stake in helping to preserve the free flow of information on the workings of government,” Hall said.
It also helped that that diverse coalition didn’t hesitate to defend that stake. “The way things go in Wisconsin is that bad ideas become law within a heartbeat of being introduced,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “This is governing by surprise… A rapid response is essential.”
Another takeaway for Lueders: “There is a place for anger.” He found out about the secrecy provision when a reporter called him Thursday and read passages of it over the phone. He felt so furious, he said, “I could’ve put my fist through the wall.” That feeling came out in his interview: he described the lawmakers as “miserable cowards” who were playing dirty—heated remarks that he might’ve polished if he’d had time to reflect. But in retrospect, Lueders said, unfiltered anger was appropriate and “helpful in turning the tide” against the measure.
To date, it’s still not clear just who pushed for the records measure to be added to the budget bill. When approached by reporters, members of the legislative committee either claim not to know or refuse to answer. “They are literally walking away from reporters trying to ask that question,” Lueders said. An open letter from the Madison chapter of the Society of Professional Journalists urged lawmakers to act in the spirit of the transparency they say they value and “acknowledge their roles.”
That’s an angle that deserves continued press attention—which it’s getting. And public-records issues shouldn’t be falling off the news agenda anytime soon. As Patrick Marley writes in the Journal Sentinel, Walker’s administration has been acting as if one part of the proposed measure was already law, and is now facing a pending lawsuit. What’s more, another secrecy provision—one that makes the names of finalists for University of Wisconsin jobs confidential—is still part of the pending budget bill. “Take it out,” the Wisconsin State Journal‘s editorial board bluntly states.
Another story to watch: Saturday’s statement announced that the legislature will form a committee to study further action on the issue. There are no details on what this will look like, or what its impact will be, yet—so we’ll need to follow this story to its conclusion to make sure that this happy ending sticks.Anna Clark is a journalist in Detroit. Her writing has appeared in ELLE Magazine, The New York Times, The Washington Post, Next City, and other publications. Anna edited A Detroit Anthology, a Michigan Notable Book, and she was a 2017 Knight-Wallace journalism fellow at the University of Michigan. She is the author of The Poisoned City: Flint’s Water and the American Urban Tragedy, published by Metropolitan Books, an imprint of Henry Holt. She is online at www.annaclark.net and on Twitter @annaleighclark.