Wisconsin Democracy Campaign Submits Amicus Brief in Lame-Duck Case

May 7, 2019

On May 3, the Wisconsin Democracy Campaign submitted a motion for leave to file an amicus curiae brief to the Wisconsin Supreme Court in one of the lame-duck lawsuits. On May 6, the Wisconsin Supreme Court granted the motion and accepted the brief for filing.

Supporting the case brought by the League of Women Voters of Wisconsin, Disability Rights Wisconsin, and the Black Leaders Organizing for Communities, the brief by the Wisconsin Democracy Campaign punches several holes in one of the main arguments by the Republican leadership.

That argument contends that the Legislature meets “continuously through the biennial session,” and this contention is designed to rebut the charge that the lame-duck session was illegitimate.

But this defense—essentially, that the Legislature is always in session until the next session begins—is “absurd,” says the brief by the Wisconsin Democracy Campaign. “Acceptance of the Legislature’s argument would ensure that neither the Constitution nor the laws of Wisconsin could be properly construed and followed,” it states.

The brief points out that the logic of the Republicans’ argument would mean that “a lobbyist could never make campaign contributions and a legislator could never accept campaign contributions from a lobbyist.” The reason for this is simple: Current Wisconsin law allows lobbyists to make contributions only when the legislature is not in session. But since their argument is that the Legislature is always in session, they’ve got a big problem on their hands.

“The Legislature’s theory thus requires a finding that legislators and candidates for legislative office violate the law each time they accept campaign contributions from lobbyists,” the brief states. “If true, the Legislature’s own argument could lead to the mass indictment of legislators.”

The brief also notes that “if the Legislature were in ‘continuous session,’ Legislators could evade the jurisdiction of the court until their retirement.”

Current Wisconsin law says that a legislator can’t be party to a suit while the Legislature is in session so if the Legislature is always in session, there’s no way to take legal action against any legislator.

“Certainly, it cannot be true that legislators are immune from participation in court proceedings for years, or even decades,” the brief states. “No person – not even a member of the Legislature—is above the law.”

And here’s one for the Wisconsin taxpayer: If the Legislature serves in “continuous session,” then every legislator could put in for their “per diems” – their expense allowances -- every day for two years!

The law on “per diems,” incidentally, recognizes that the Legislature is not in “continuous session.” It states: “No allowance shall be paid under this subsection for any day during a recess of the Legislature for 30 days or more...” As the Wisconsin Democracy Campaign brief notes: “If the Legislature is in ‘continuous session,’ then how can there be a recess?”

The brief was filed by attorneys Jeanne Armstrong and Christopher Dodge of Fuhrman & Dodge.

Matt Rothschild, the executive director of the Wisconsin Democracy Campaign, hailed the work of Armstrong and Dodge. “Our lawyers did a terrific job in showing just how ludicrous the Republicans’ argument is,” Rothschild said.