The conservative Wisconsin Institute for Law and Liberty (WILL) has sued Wisconsin State Superintendent Tony Evers for what it alleges was a state education agency's violation of an anti-regulatory law — long pushed by the petrochemical billionaire Koch brothers — known as the REINS Act.
Wisconsin's version of REINS, or Regulations from the Executive in Need of Scrutiny, is a piece of legislation heavily lobbied and advocated in favor of for over half a decade by Americans for Prosperity, a policy and electioneering advocacy front group founded and funded by the Koch Family Foundations and Koch Industries. The bill, which has a federal equivalent in Congress, has long been seen as the crown jewel of the Koch network. It essentially gives legislative bodies full veto power over regulations, including proposed environmental safeguards, which have been proposed by executive agencies — even when those regulations are mandated by laws legislatures have passed.
WILL's November 20 lawsuit, if successful, would be the first time the REINS Act is used to halt a proposed regulation. WILL is funded almost entirely by the conservative Milwaukee, Wisconsin-based Bradley Foundation, which has offices located next door. Wisconsin's Republican Governor Scott Walker, who is up for re-election in 2018, became the first state chief executive to sign the state equivalent of REINS into law.
Walker has long maintained close ties with the Koch network and has received millions of dollars in campaign contributions from the juggernaut.
The federal version of the REINS Act, first introduced early in Barack Obama's presidency, was again proposed during the 2017 congressional session. The bill passed early in the year in the House, but not in the Senate, where it currently has 38 co-sponsors.
Rep. Steve Haugaard, a Republican in the South Dakota legislature, recently told the Heartland Institute that he too is in the process of bringing a version of the REINS Act to his state. The American Legislative Exchange Council (ALEC), a corporate-funded group which brings lobbyists and generally Republican Party state legislators together to vote on model bills at its annual meetings, has a resolution in support of the REINS Act as one of its pieces of model legislation.
Wisconsin Supreme Court, WILL Tie
WILL has brought the lawsuit directly to the Wisconsin Supreme Court. It argues that Evers, a Democratic Party gubernatorial candidate, has promulgated proposed regulations without sending a detailed “scoping statement” to the state's Department of Administration. That office functions, in essence, as an extension of the Governor's Office.
Such a statement would have laid out the costs for stakeholders to comply with the proposed rules. The lack of this statement was discovered via an open records request filed by WILL, according to the complaint and exhibits from the case. The Wisconsin version of REINS requires that this type of scoping document be published, mandating that if the costs of regulatory compliance rise above $10 million, the bill or regulation either be rewritten or discarded.
“State Superintendent Evers is blatantly violating newly enacted state law,” Rick Esenberg, WILL president and general counsel, said in a press release. “The legislature passed the REINS Act to make all agencies, including the Department of Public Instruction, more accountable to the elected-state legislature and open to the people of Wisconsin. No one, including Superintendent Evers, is above the rule of law in Wisconsin.”
As the Associated Press noted, Gov. Walker recently appointed Dan Kelly, who formerly sat on WILL's litigation advisory board, to the Supreme Court in July 2016. Upon the appointment, WILL issued a statement in support of Kelly.
“I’ve known Dan a long time and enjoyed our personal and professional relationship. He is a very bright, capable attorney who believes in a judiciary that interprets the law objectively, fairly, and follows where the law might lead,” WILL's Esenberg said in a press release. “His experience unquestioningly qualifies him for the Supreme Court where reason and sophisticated legal analysis guides public policy affecting nearly six million Wisconsinites.”
The Wisconsin Manufacturers and Commerce — the Wisconsin state-level equivalent of the U.S. Chamber of Commerce — has inserted itself into the case by filing an amicus, or friend of the court, brief in support of WILL's lawsuit.
Legal Representation Issues
Beyond the lawsuit itself, Evers is actually having problems related to legal representation for the nascent case because he does not want to be represented by counsel from the office of Wisconsin Attorney General Brad Schimel. Schimel has come out in agreement with REINS and its implementation.
Pointing to this set of circumstances, Evers wrote a letter on November 28 and then held a subsequent press conference on November 29 laying out why he would like to use his own team of lawyers, including Department of Public Instruction in-house counsel, for the case.
“I believe that your office is neither willing nor ethically able to provide representation in this matter,” wrote Evers. “[Wisconsin Supreme Court's Rules of Professional Conduct] require all attorneys, including those at the Department of Justice, to advocate for their clients, abide by a client's decisions concerning the objectives of representation, and avoid conflicts of interest.”
Evers and the rest of the Walker-run bureaucracy are at odds to begin with because, in Wisconsin, the State Superintendent of Public Instruction, an office Evers also holds, is an elected post. Further complicating things: Evers, if he wins the Democratic Party gubernatorial primary in August, would be Walker's opponent in the general election.
“In perhaps the most outrageous Republican attempt to consolidate all political power in the hands of Gov. Scott Walker, Attorney General Brad Schimel, echoing French king Louis XIV, has effectively declared that he is the state (l’état, c’est moi),” wrote Wisconsin attorney Lester Pines of the development. “Schimel’s expression of absolute authority arose in the latest effort by Walker to gain control of the only other executive officer created by the Wisconsin Constitution who has vested executive power, the superintendent of public instruction.”
Dairy State Crucible
As previously reported by DeSmog, Schimel was also a co-plaintiff for the lawsuits spearheaded by then-Oklahoma Attorney General and current U.S. Environmental Protection Agency Administrator Scott Pruitt against the Clean Power Plan. The Clean Power Plan would have regulated carbon emissions from coal-fired power plants. Pruitt — a climate change denier, as is President Donald Trump — has repealed the Clean Power Plan and now mulls its required replacement.
A spokesperson for Schimel's office, Johnny Koremenos, told WisPolitics.com that the Office of the Attorney General is his legal counsel whether “Evers likes it or not.”
“Whether Superintendent Evers likes it or not, the State of Wisconsin is the actual defendant in this lawsuit, and his personal opinions as to what the law is or should be will have no bearing on the Attorney General’s power or ethical duty to represent the State,” said Koremenos.
Beyond the legal representation quagmire, Evers' Department of Public Instruction has also called for the lawsuit to be dismissed on its face. Agency spokesperson Tom McCarthy told the Milwaukee Journal-Sentinel, “The case has no merit, period. The only people that don’t understand this is WILL.”
What happens in the days and months ahead with the WILL lawsuit, though, will likely have big implications for environmental regulations not only in Wisconsin but likely far beyond, with the Dairy State once again serving as a test case and battleground for the implementation of the Koch agenda.
Main image: Caricature of the Koch brothers and Gov. Scott Walker. Credit: DonkeyHotey, CC BY 2.0