Wisconsin’s outgoing Republican governor Scott Walker signed a set of bills earlier this month designed to limit the powers of the incoming Democratic governor and attorney general. Walker and the Republicans that comprise the majority in both houses of Wisconsin’s legislature have a number of legislative accomplishments from the past eight years that they undoubtedly want to preserve. However, this move to hobble incoming and duly elected politicians has the potential to make bloody, partisan brawls over electoral power structures completely routine.
Some observers may ask whether American politics isn’t already characterized by bloody, partisan brawls. Yes and no. Congress continues to hone its reputation for gridlock, demonstrating that major legislation can only be passed in times of unified government and even then, it’s no sure thing, as the Trump-led Republican Party has just finished demonstrating.
The state-level transformation into a partisan mirror of Congress has been a more recent development, as Professor Timothy Conlan argues. While state governments had traditionally demonstrated higher levels of cooperation and consistent policy implementation, increased polarization has produced statehouses that increasingly resemble Congress. So yes, American politics is characterized by bloody, partisan brawls, both federal and state.
Birthplace of Post-Election Rule Changes
However, while increased polarization may produce fiercer battles over policymaking until recently it did not necessarily mean abdicating the norms that preserved basic power structures in state government.
That changed in 2016 when the North Carolina lame duck Republicans passed legislation that stripped powers from incoming Democratic governor Roy Cooper. Those moves are still being litigated in 2018, but regardless of the outcome, a number of observers point towards North Carolina as the birthplace of the new, post-election rule changes.
As a result, Wisconsin is not the only state to have contemplated and passed power-shifting pieces of legislation in 2018; as of this writing, the legislature in Michigan is still considering a law that would shift oversight of campaign finance law while giving legislators more influence over litigation in which the state becomes involved. Such legislative maneuvers present a new frontier in electoral politics within the United States.
Role of State Attorney Generals
Control over state litigation is also a major component of the Wisconsin law. For decades now, state attorneys general (AG) – the (mostly) elected chief law enforcement officers of each state – have been enormously powerful policymakers, as they file lawsuits alone and jointly against businesses and the federal government alike.
As the position has grown in influence, each party has sought to spend more on AG elections and candidate recruitment, but at the same time, some legislatures have attempted to curb the power of this office. Typically, these efforts have failed in the courts, as the broad powers of state AGs are typically enshrined either in statutory or constitutional law across the states.
Perhaps the most spectacular of these failures came in 1997 when Mississippi Governor Kirk Fordice sued his own AG Mike Moore to force him to drop a lawsuit against the tobacco companies. Governor Fordice lost in the Mississippi Supreme Court and ultimately, the tobacco companies settled with the states for $246 billion.
Wisconsin’s Law Threatens AG’s Power
The laws just passed in Wisconsin represent a significant threat to state AG power for two reasons. First, the governor signed the bill into law, which means it is no longer just a proposal. Second, the constraints it places on incoming AG Josh Kaul are breathtakingly large in scope, as it prevents him from hiring additional staff such as a solicitor general (a specialist advocate who handles appellate litigation in court). The new law also prevents Kaul from withdrawing from the Republican AG lawsuits against the Affordable Care Act. Few times before has a state legislature attempted to define what a state AG can litigate and what they cannot.
What are the longer-term implications of these post-election power shifts? First, it depends what the courts have to say. As outgoing governor Scott Walker himself has acknowledged, the latest legislation is likely to be challenged by Democrats and possibly end up before the Wisconsin Supreme Court.
If such maneuvers are validated, it is a safe bet that future state legislatures will follow suit, especially if they think they can be successful. Even if such strippings of authority eventually lose in court, they can be deemed a success to the extent that the incoming elected officials have to waste precious time in a legal war of attrition over the merits of such moves, rather than actually governing.
Second, the polarization that accompanies these structural shifts in power could ensure that they become significantly more seismic. Many states are blessed with a wealth of statewide, elected offices, where elected officials are in charge of policies often delegated to independent commissions or arms-length organizations in other nations.
Elected statewide offices, such as state AG and secretary of state, can prevent a concentration of power in the state government and give parties and organized interests additional means and venues of influencing the policy process.
However, if the incumbents in these offices spend more time punishing the opposing party and their constituents, party politics will benefit at the expense of the policy needs of ordinary citizens. A recent example from the midterm elections is when Georgia’s Secretary of State Brian Kemp was in the unusual position of essentially overseeing his own election for governor, a race that he in fact nearly lost.
Laboratories of Democracy
American state governments have long been known as the “laboratories of democracy” where bottom-up policy experimentation can occur and complement top-down federal policymaking.
State governments also offer a number of venues through which constituents can influence the policy process. However, if increased polarization continues to infect state politics, legislators may find themselves spending most of their time figuring out how to legally remove power from the other party.
This not only undermines policymaking through a highly partisan expenditure of state resources, but it also diminishes the significance of citizens’ vote choices.