Restoring Democracy in Wisconsin

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Courtesy of LawForward.org

Jeff Mandell

Wisconsin was the leading progressive state for a century until the 2010 election of Scott Walker, GOP majorities in both houses of the legislature and the most gerrymandered districts in the county. A three-judge federal panel, with two judges appointed by Republican presidents, ruled our legislative districts to be unconstitutional. Law Forward is a non-profit, non-partisan, impact litigation firm focused on advancing and protecting democracy in Wisconsin. Off the Cuff spoke with Law Forward’s founder Jeff Mandell. A graduate of the University of Chicago law school, Mandell moved to Madison with his wife in 2015 because it “was a place where we could raise our kids that reflected our values.”

Tell me about your work.

There is no analog to Law Forward anywhere else in the country right now. Wisconsin has been over the last 11 years the primary testing ground for the most reactionary and radical ideas on how to change governance and turn back the clock in this country. Just like conservatives and right-wingers used Kansas as their testing ground for extraordinary and extreme fiscal policy,

they decided to use Wisconsin as the place where they try out all their nutty, revanchist theories on democracy. They’ve chosen Wisconsin because it was the beacon in this country—the model laboratory of democracy with open and transparent government that worked with people who had divergent opinions and looked for solutions to the problems that faced people in the state.

There’s so much innovation that came out of Wisconsin from unemployment insurance, social security to vouchers and school choice, to using bipartisan nominating commissions to limit the amount of patronage in appointing federal judges and other federal positions that served in the state. Law Forward is stepping in to say that we’re going to fight back in an organized, coherent, strategic way. We are going to protect Wisconsin’s democracy and try to make sure the state continues to function for people.

Who is the “they,” as you see it on the other side, that is crippling our democracy?

It can be difficult to tell at some point but the primary vehicle for this has been the Wisconsin Institute for Law and Liberty (WILL)—a conservative law firm, essentially a non-profit created in 2011, that for a decade has basically run amuck and unchecked in this state, doing the bidding of a right-wing donors. They work from a potentially blank check and unlimited funding from the Bradley Foundation and other highly conservative interests in Milwaukee. The Koch brothers have helped fund WILL. And that's what I mean about national interest stepping in and using Wisconsin as the example. The Bradley Foundation was the beginning of this, but they have recruited people from all over the country to bring the money here and use Wisconsin as their testing ground. Because if it works, if it could work in Wisconsin, they can show it can work anywhere.

What they're trying to do is break democracy in Wisconsin. They’re trying to revitalize long-discredited theories of the Constitution, things that we left behind as a nation more than a century ago and see what would happen if they brought those Gilded Age policies into the cyber age. There are two in particular I want to highlight. One is something called the Nondelegation Doctrine: The idea that executive agencies essentially have no power at all and that if we want to regulate the private conduct of the economy, that has to be done by the legislature. The way it works right now is if the legislature finds that there is a dangerous chemical, an industrial byproduct, and it is harming people, the legislature says, “OK, Department of Natural Resources, bring your expert scientists to bear and you figure out what the right level of pollution is that we can live with, and you regulate above that.”

The theory of the Nondelegation Doctrine is that the legislature has to make that choice. The legislature has to decide how many parts per billion, and it can’t change unless the legislature changes, but they have neither the knowledge nor the political will nor the time to deal with all of these things. This is an effort to paralyze the administrative state and make sure that there’s no regulation. The non-delegation doctrine was accepted on the federal level until the New Deal.

The second doctrine that they want to bring back is in some ways even scarier—a doctrine that freedom of contract controls everything that is a matter of individual liberty and anything that anyone is willing to contract for should be constitutionally protected. This theory was thrown out in the early 20th century, because it was initially used to strike down minimum wage laws, worker safety laws, child labor law. They want to bring this back. Not only Rick Esenberg and the other folks at WILL, but there are a number of people on the court the Wisconsin Supreme Court. When we had the arguments just about two years ago—in the cases that challenged the lame duck extraordinary session where the legislature kneecapped Governor Evers and Attorney General Kaul before they took office—one of the national lawyers at the end of the argument said to me, “You know, I expected this to be tough sledding, but what I didn't expect was that there would be serious people who really believe the Nondelegation Doctrine is correct and were going to argue that with me today.”

We’ve made a little progress in the last couple of years with the election of Justice Jill Karofsky, but for a couple of years we were one vote away from being the only place in the country that in a century has taken this idea of Nondelegation seriously. Even as we step back from that brink, we’ve seen the last year during the coronavirus pandemic incredible skepticism from our Wisconsin Supreme Court of the ability of government to function and protect people’s lives in crisis. When the governor tried to make sure that people didn’t have to go out and vote as the public health pandemic was reaching its first crisis stage, the court told him to get lost

The court has repeatedly said it has to go through the legislature, even as the legislature has showed itself, completely uninterested and unwilling to respond to this crisis in any meaningful way. This is scary. Democracy is about making sure that government works for people. And governance is always about trade-offs and democracies are making sure that those trade-offs protect people, work for people and protect their liberties too. I think civil liberties are vital, but we have to remember the civil liberties of the majority as well. If we say that every individual's civil liberty not to wear a mask trumps everything, then what about the rest of us having a right to live our lives and be able to go out in public? This is a scary time in Wisconsin and that's why Law Forward has come in to try to fight back.

Where does Law Forward fit in in addressing this and how?

On the right, you’ve got WILL, which serves as a central clearing house and a strategic home-base for these radical theories. They have brought lawsuit after lawsuit. One thing we have to remember is that this kind of using the courts to alter policy takes time. It is not something that happens in one fell swoop. We all remember the landmark cases, right? Brown vs. Board of Education, the Obergefell decision that legalized same-sex marriage, but those cases did not come on a blank slate. It takes a strategy and a series of stepping-stones to transform the law across time. What we’ve seen in the last decade is that on the one side, we have WILL with a big strategy laying out those stepping stones. And on the other side, we had individual lawyers at different firms or different parts of the government who were taking on these cases as one-off opportunities and litigating those cases to the best possible outcome they could. But without seeing the bigger picture, we were treating each one as a tree and ignoring the forest. And we can’t do that. We don’t have that luxury because we're going to lose.

The purpose of Law Forward is not to push other lawyers or organizations out of these debates. The purpose is to create the space where we all come together and talk about the forest and think about how we’re strategically going to move in the right direction, both in playing defense against this endless litany of cases that WILL and others are bringing, but also in thinking about how to play offense and lay down some stepping-stones so that across time, the law moves in the right direction.

As a former state legislator, I see redistricting as the most important issue coming before us as a state. Where do you see this going and what do you see happening with redistricting?

There’s going to be a no-holds-barred fight. Redistricting is absolutely the most important thing happening in this state this year. It’s one of the reasons we launched when we did—we have to be ready for the redistricting and we have already lined up clients. We have lined up experts, we have lined up co-counsel ready for this fight.

You might have heard some talk about whether the legislature could redistrict without the governor? As you know, the way that redistricting usually works is the legislature draws new maps and present them to the governor. More often than not in this state, when we have split control, as we do right now, where one party controls the legislature and the other party has the governor’s office, they can’t reach an agreement. And we wind up in court.

There’s another mechanism called a joint resolution which the two chambers of the legislature pass. It’s not the law, it’s a piece of paper that explains what they want to accomplish and does not require the governor’s signature or veto. There was some talk last year about whether the legislature might try to redistrict by joint resolution.

This is not a new idea. It was tried in the 1960 cycle. And at that point, the Wisconsin Supreme Court unanimously said you can’t do that. You’ve got to do this by actual legislation. I think that there’s a significant possibility that the legislature might try to do this, to go around the governor, and think that they have a Supreme Court right now that is amenable to their interests and might let them get away with it. But one of the reasons that Justice Hagedorn showing an adherence to precedent is so important is that would suggest he will not let them get away with it. And if he doesn’t, where does that leave us? Will the legislature operate in good faith and try to strike a deal with a governor on what reasonable districts would look like? Nobody really believes that's going to happen. More likely the legislature passes an extreme map that perpetuates and extends for another decade the gerrymander that they currently have—a gerrymander that is the most extreme partisan gerrymander in the United States and is one of the top five most extreme partisan gerrymanders in American history.

A nonpartisan democracy index study at Harvard looks at how governments work all around the world and scores them on a democracy index of zero to 100. Zero is bad. 100 is good. Wisconsin got a three.

Countries we think of as repressive regimes scored higher than a three. And this is what the legislature wants to perpetuate. They’ve already hired at taxpayer expense lawyers to litigate this before the census data is even in—we can’t draw the maps until the census data shows up. They’ve already spent tens of thousands of taxpayer dollars paying lawyers to prepare for litigation premised entirely on the idea that they will fail to do their job. Their job is to draw new maps that they can compromise with the governor on, but they’re convinced that they can’t possibly do that or that they won’t possibly do that.

We filed a brief this week. There’s a case pending in the Dane County circuit court saying that those contracts are illegal and that they can’t pay those lawyers using taxpayer dollars. These are private partisan interests. There is no lawsuit right now. There is no reason for these contracts. But we’re going to wind up fighting this out in court. And it's not clear yet whether we’re going to fight it out in state court or federal court. It’s not clear yet exactly what the issues are going to be. Is it going to be about technical issues about how they drew the districts? Is it going to be about the consequences of those districts for our racial minorities and linguistic minorities? It may well be all of these things. In the last cycle, after the gerrymander passed, there were three separate lawsuits, one in state court, and two in federal court challenging them.

Two of those lawsuits succeeded, one in state court and one in federal court. The third lawsuit, which was about the extent to which the legislature had rigged the maps so that they could get a minority of the votes and control an outsized [GOP] majority, went to federal court. My colleague at Law Forward, Doug Poland, led the litigation. They convinced a three judge panel, including appointees by Republican presidents, that this was unconstitutional. On appeal at the U.S. Supreme Court, however, the court sent that case back to Wisconsin on a technicality and asked them to take another look at this technical issue.

Then the next year in a case out of North Carolina, the U.S. Supreme Court—after Justice Kennedy had retired and been replaced by Justice Kavanaugh—decided that partisan gerrymandering, as distasteful as it is, as contrary to our democratic values as it is, is not something the U.S. Constitution provides a remedy for. And on that basis, the partisan gerrymandering case here in Wisconsin was dismissed.

That makes it a lot harder to fight specifically against these anti-democratic efforts to ensure that we have uncompetitive legislative races. The consequence of that is really stark. You think about all the things that have tremendous amounts of public support in this state, whether it is some common sense gun safety and background check legislation, whether it is expanding Medicaid and taking advantage of the billions of dollars in federal aid that can flow to Wisconsin and help people, whether it is medical marijuana, whatever your issue—even the mask mandates.

The current [GOP] legislative leadership is afraid of these issues and is afraid of letting their members vote on them. When the governor calls special sessions, they gavel it and gavel out immediately. And the only reason they can do that, the only reason they can thumb their nose at the public and the will of vast majorities of Wisconsinites, is because of the gerrymander—because they know that there's no possibility that any of these folks are going to get voted out because they’ve set it up.

That’s a fundamental breakdown of American democracy. That’s not how it should be, regardless of what your politics are, regardless of which party you prefer, we should all want our democracy to be working so that we have actual robust discussions of ideas and elections that matter.

What do you see as reason to be optimistic going forward in Wisconsin? Do you see us ending up with fair districts? What do you see that should leave our readers feeling like there’s some real hope for a better future?

I do see reason for optimism. We have already seen in the last year better things happening in our courts. We have seen the [Wisconsin Supreme] Court pushing parties to follow regular order and to, to litigate in a sensible way. And we have seen the court having fewer decisions that follow predictable partisan fault lines—Justice Hagedorn cutting against predictable partisan fault lines voted to protect Wisconsin’s elections last fall in cases Trump and his allies brought, trying to overturn those results and hijack the electoral votes in Wisconsin. There were a bunch of those cases. I represented the governor in all of them, and I know how many there were, and Justice Hagedorn was steadfast. In federal court—the Eastern district of Wisconsin—we got a big win from, from Judge Pam Pepper.

And we got a big win from Judge Brett Ludwig, a Trump appointee. We went up to the Seventh Circuit and had a panel that was mostly appointed by Republicans. We are seeing real signs of hope and believe that the rule of law is holding, and the basic premises of our democracy are sound—but we have to be willing to stand up and fight. I do believe we will get fairer districts this year than we’ve had for the last decade. That doesn’t mean we’ll have the fairest maps in the country. As you know, as a former legislator, there are almost unlimited ways to draw maps and the technical technological advances and computer processing power that can go into this now makes it so easy to tweak them in a million ways.

We can put in data and we can get tens of thousands of maps that meet various legal criteria within a matter of hours. But I think we're headed in the right direction. And I also think that one of the reasons we should be hopeful is I think that our democracy at the national level has just sustained a truly unprecedented attack. And people care, even people who voted for Trump, even people who are unhappy with some of the election outcomes, they believe in democracy, not all of them, but many of them and democracy continues to pull well. And people are paying attention to these issues in a way as never before two years ago, when I was first starting to think about Law Forward, and I would go to people and I would say democracy of Wisconsin is under assault. Most people, even people who agreed with me on a lot of issues, would give me a skeptical look. Now, everybody sees it. It’s out in the open and people do really believe in the importance of in Lincoln’s words—democracy of the people by the people, for the people shall not perish from the earth. People care about that around the country. People care about that in Wisconsin, and that gives me hope.