Appeals Court Gets it Right
Good.
An appeals court has dismissed a lawsuit that seeks to bring more transparency to the process Wisconsin lawmakers use to write bills.
Then-Attorney General Peg Lautenschlager filed suit in 2005 seeking to end a practice in which lawmakers share drafts of bills with certain lobbyists and experts while withholding them from the public.
She and other watchdogs claim the practice is a violation of the open records law.
But a judge last year upheld the practice, saying the drafts of public documents are not public records.
So then, we should score you as being in favor of governing in secrecy, lobbyist-led lawmaking and against the public’s right to know and open government?
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1047 hrs
If you want to be an obtuse asshole, sure.
Posted by Owen on September 16, 2008 at 1055 hrs
And why is this good Owen?
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1112 hrs
This is what happens when an anti-gun zealot like Peg Lautenschlager allows her personal agenda and emotion to interfere with her public duty. This ruling was correct.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1113 hrs
It sounds to me like it’s correct in terms of the letter of the law, but probably is bad for the public in the end.
Posted by scott on September 16, 2008 at 1123 hrs
Wisconsin’s Open Record law is not absolute. In spirit, the public has a right to view any public document. In the letter of the law, however, that is not the case.
This case dealt with “draft documents” which had not been formally introduced into the public forum. Draft documents, for all intents and purposes, are not subject to the law, regardless of any “sharing” that had occured between a legislator and a lobbyist.
The fact is, legislators (both Dem and GOP) and lobbyists have been sharing draft legislative documents with each other for decades, out of the public eye. The problem with the Lautenschlager case is that her personal feelings and opposition to conceal and carry clouded her judgment and her actions in this matter.
No one, either privately or publicly, ever questioned the sharing of draft documents among legislators and lobbyists. It wasn’t until a hot button issue like conceal and carry showed up and had promise of advancing that the former AG set aside her public duty for a personal and political agenda.
That is one reason why we now refer to her as “the former AG.”
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1136 hrs
So, the requirements of the present law aside for the moment, you are or are not in favor of such disclosures going forward?
Posted by scott on September 16, 2008 at 1144 hrs
I see you point PP.
What I question is the relationship between the lobbyist and a legislator.
For me, a lobbyist represents a constituency, as a part of the public policy process.
Why should one segment of the public or a legislator’s constituency have greater access to the foundations of a decision making process than any other?
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1147 hrs
scott - I am not in favor of such disclosures going forward.
When a person makes an Open Records request, the requestee is allowed to consider a public interest balancing test. Quite frankly, I don’t know what public interest is served by allowing full disclosure of a mark up or draft document. If a legislator scribbles some notes on a piece of paper, is that an open record? I doubt it. Draft documents should be treated likewise.
pjr - Lobbyists and similar organizations have always had this greater access, but only at the whim and good grace of the legislator. If a legislator chooses to share information with such an organization, that is their perogative to do so. Legislators routinely work with lobbying organizations because they do serve a constituency and may be more knowledgable than the legislator in certain areas.
The problem, though, is that it always gets turned into something seedy or underhanded. But obviously, no single legislator can have insight or expertise on every issue - be it health care, education, taxes, crime, the environment, and so on. So they turn to the professional organizations for assistance.
In fact, we often hear a legislator promote their bill and use those organizations to garner public support. And the more organizations that support it, the better chances it has in becoming public policy. So working closely with those groups can lead to sound public policy.
But again, the question comes back to whether notes or concept papers or draft documents of unintroduced bills should be a public record. I say ‘No’ and the Courts agree.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1237 hrs
I never understood - other than anti-gun zealotry - Lautenschlager’s angle here. For someone’s who’s seen as a ‘brilliant’ legal mind by people back home (Not in my circles, but I don’t hang w/ Ed Garvey and his crew.), she should have known she would have eventually opened up a hellstorm on so many fronts.
She could have opened the flood gates not just into Legislative deliberations, but potentially Executive deliberations. I’m likely overreaching legally here, but what’s to say had she won this lawsuit, you’d next have someone who would want to go after the Governor’s Executive Privledge, or meetings held by staff at some obscure government agency in Wisconsin in the name of “Open Records.” The final product in policy and legislation will eventually see the light of day. Why demand to see versions that are moot?
As Pelican Pants pointed out, the State’s Open Records law only goes so far. Peg was stretching even the intent of the law to new lengths.
Thank goodness it was reported she’s not going to run to get her old job back in 2010. Her ignorance and arrogance toward the laws of the State of Wisconsin should be disqualification enough.
Posted by Kevin Binversie on September 16, 2008 at 1250 hrs
PP,
If a legislator chooses to share information with such an organization, that is their perogative to do so.
This is the part I think I have the most trouble with.
In my opinion, a legislator should not have this discretion available to them.
If a document is made available to some part of the “public”, it should be available to all of the public.
Legislators routinely work with lobbying organizations because they do serve a constituency and may be more knowledgable than the legislator in certain areas.
Agreed.
Why shouldn’t the public be privy to this knowledge in its raw form?
It would provide a paper trail through the legislative thought and decision making process.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1257 hrs
The other issue to consider is seperation of powers of the three branches, as Kevin B. has touched on.
Had the Court ruled in favor of the former AG, it could set a troubling precedent of the Judicial branch instructing the Legislative branch on how to draft legislation. That would certainly be improper, in my opinion.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1300 hrs
It would provide a paper trail through the legislative thought and decision making process.
In theory, I lean in your favor, but my opposition to it is rooted in the practical. If legislators know that their notes, drafts, concept bills, etc., are all going to be public, it could have a detrimental effect on the creation of good policies. Legislators would be afraid of asking the stupid questions, “thinking outside the box,” and having serious, frank discussions about the real effect of the proposed legislation because of fear that those unfiltered thoughts would be used against them in a campaign. Opening up these kid of records would stifle creative and innovative thoughts and have everyone legislating on the defensive.
Posted by Owen on September 16, 2008 at 1313 hrs
Had the Court ruled in favor of the former AG, it could set a troubling precedent of the Judicial branch instructing the Legislative branch on how to draft legislation.
I disagree.
I don’t see it as a “how to” as much as improving transparency for the process.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1318 hrs
To add to my comments… I think that having access to such information would be infinitely interesting, I don’t see it as any value because, as Kevin said, the information is moot if it was never actually introduced.
Posted by Owen on September 16, 2008 at 1319 hrs
You folks apparently haven’t read the Court of Appeals decision yet. This case was not decided on the merits of whether or not Wisconsin’s Open Records law extends to bill drafts. Rather, the Court of Appeals decided that only the Attorney General (now JB instead of Peg) got to make the call on whether or not the lower court decision would be appealed. Since JB didn’t want to appeal, case dismissed. You shouldn’t read more into the decision than that narrow principle. The larger question will be litigated another day!
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1322 hrs
Here’s how I see the precendent manifesting itself:
1. The Court says if a legislator shares drafting instructions with a lobbying organization, they have to share it with everyone.
2. The Legislator, who does not believe the Courts should be dictacting process to the Legislature, decides not to share any information with anyone, and either no legislation is drafted, or it is drafted poorly.
Thus, sound policy is sacraficed at the altar ideological transparency, as determined by the Courts.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1325 hrs
The information is NOT moot if the bill draft is never introduced, Owen, and here is why. Let’s say during the 2005 legislative session I asked the LRB to prepare a bill draft. It went through 4-5 extensive revisions, with lots of information on “intent” in the bill drafting file. Ultimately, the legislator who requested the draft didn’t introduce it. Roll forward to January, 2009, and someone who was shown a copy of the bill draft gives it to another legislator, who went to the LRB to get it prepared for introduction in the 2009 session. When the bill is introduced in 2009, all that is then open under the open records law is the 2009 drafting file—there is no access to the 2005 file, where the important information lies. This is definitely a problem under the current interpretation of the law which should be fixed.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1327 hrs
Legislators would be afraid of asking the stupid questions
They do this all the time in public:)
Here’s the thing, I am not necessarily interested in personal “notes” that a legislator makes as a take away from a presentation from a lobbyist as much as I think we should be able to see what was presented by the lobbyist or other member of the public.
the information is moot if it was never actually introduced.
And invaluable if it is.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1328 hrs
PP, why is it “ideological” transparency?
And I think #2 is a real jump to conclusion.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1334 hrs
Because, as I said, the Open Records law is not absolute. The “ideal” is that everything is a public record. The reality is that everything is not a public record, and for good reason.
As far as #2 goes, I simply believe the Judicial branch of government should not dictate the manner in which the Legislative branch of government goes through the process of drafting legislation.
Turn it around, and I’m quite sure Justices would not want to be told by Legislators to share every bit of information they used to reach a decision.
Like it or not, elected officials - be they executives, legislators, or justices - do have certain privileges and rights afforded to them in regards to privacy and confidentiality.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1446 hrs
Turn it around, and I’m quite sure Justices would not want to be told by Legislators to share every bit of information they used to reach a decision.
As I said, I am not interested in every bit of information, just the advocacy that masquerades as unimpeachable fact.
Posted by .(JavaScript must be enabled to view this email address) on September 16, 2008 at 1549 hrs
The issue of transparency is often run up the flagpole on the local level. Anything such as a draft is shared with the public because ultimately you have to answer to them. What good would come from hiding it away? In the case of Zien and Gunderson, Lautenschlager was trying to ensure that the legislators were writing the bill and not the lobbyist (NRA).
The real reason they were sharing it with the NRA was to make sure that their bosses were in approval of the draft. It is no secret how the system works and to privately give one side an advantage in the progression of a bill is not ethical.
If the shoe were on the other foot…..
Posted by .(JavaScript must be enabled to view this email address) on September 17, 2008 at 0528 hrs
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