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Special interest goodies, dead bills thrive in late changes

State Rep. John Nygren, R-Marinette, is seen at the “State of the State” address at the Capitol in Madison, on Jan. 24. Nygren is co-chairman of the Joint Finance Committee. He said the budget bill is “the most publicly debated and scrutinized bill the Legislature passes during the session.” Courtesy photo
By CV Vitolo-Haddad and Dee J. Hall

Wisconsin Center for Investigative Journalism

Most legislative candidates responding to a poll about open government agree anonymous motions should be a thing of  the past.

In fact, all but one of 75 candidates in the upcoming election who answered the Wisconsin Freedom of Information Council poll agreed all bills, motions and amendments considered by the Legislature should include sponsor names.

Rep. Ron Tusler, R-Menasha, who is running for re-election, commented in the poll: “If you can’t even stand by your own bill, you shouldn’t ask me to stand by it.” His opponent, Democrat Scott Gavin of Little Chute, agreed, saying, “Accountability is key.”

Still, a comparison of end-of-session budget motions shows both parties have used them “as a hiding spot for pet projects,” but the size and impact has ballooned under Gov. Scott Walker, according to Larry Gallup, a senior editor at USA Today Network-Wisconsin.

“In the five budget bills before 2011, the 999 motion averaged five pages and 15 motions,” Gallup wrote in a 2017 column for the Wisconsin Freedom of Information Council. “But with the 2011-13 bill, the bill expanded to 11 pages and 54 proposals. By 2015-17, it ballooned to 24 pages and 81 proposals.”

Special interest goodies

The 2015-17 final wrap-up budget motion included the quiet repeal of the State False Claims Act, which a Center investigation found cost Wisconsin taxpayers millions in lost settlements from companies that cheat the state Medicaid program.

Another measure allowed out-of-state risk retention groups to sell medical liability insurance to doctors without meeting Wisconsin regulations designed to protect patients from malpractice.

Risk retention groups are corporations that collect and distribute risk among policyholders engaged in the same or similar practices, such as anesthesiologists and ophthalmologists. The idea of allowing sales of such policies in Wisconsin was introduced as a bill in 2014 but died in committee. The Republican-introduced proposal was so unpopular top officials in the Walker administration testified against it. 

One year after the bill died, it quietly reappeared in a 999 motion.

Drafting files at the Legislative Reference Bureau for the original 2013 bill reveal one possible reason it was resurrected from the dead. Records show the co-chairman of the Joint Finance Committee, Rep. John Nygren, R-Marinette, had requested the bill be drafted after being contacted by Eric Jensen, a lobbyist for the private, out-of-state risk retention groups Ophthalmic Mutual Insurance Co. and Preferred Physicians Medical Risk Retention Group Inc. Co-chairwoman, Sen. Alberta Darling, R-River Hills, wrote the companion bill in the Senate.

According to an email from Walsh in the drafting file, out-of-state companies had been given options for becoming licensed in Wisconsin but sought to avoid the state’s patient-protection regulations.

Records show the official cosponsors of the motion 999, Darling and Nygren, together received donations from representatives of Ophthalmic Mutual Insurance totaling $1,250 during the 2015 budget season.

According to the Wisconsin Democracy Campaign website, Ophthalmic Mutual has not recorded donations to any other Wisconsin legislator before or since.

Nygren said he included the item in the 2015 budget after it had gotten a public hearing as a standalone bill, a process he said is “fairly common.”

He defended allowing out-of-state risk retention groups to sell policies in Wisconsin. Such companies “help manage liability costs for health care providers which, in turn, helps control costs for patients,” Nygren said.

He told the center in an email the budget bill is “the most publicly debated and scrutinized bill the Legislature passes during the session,” adding, “I believe the public plays a vital role in lawmaking and democracy.”

In 2017, Nygren and Darling said they were working to prevent the use of the controversial motion. But when the 2017-19 budget was passed in September 2017, the two again authorized the final motion to make last-minute changes without public input — including items that had nothing to do with state spending — loosening standards for setting up charter schools and requiring state universities to track how many hours each instructor teaches.

Non-fiscal budget items

Barry Burden, political science professor at the University of Wisconsin-Madison and director of the Elections Research Center, says budget bills are a favorite hiding place for unpopular legislation.

“We know they have to be passed,” Burden said. “That’s when members try to slide in all of the things they thought might not pass on their own.”

He added the anonymity of the 999 motion is politically enticing because it avoids public scrutiny. The majority party can “bury” unpopular items in bigger motions.

“Everyone can say they were against that little thing that was added in the 999, but the bill — they voted for the larger bill. We’ll never know exactly what their stance was on those items,” Burden said.

This kind of opacity is not unique to Wisconsin.

In November 2017, the Kansas City Star published a months-long investigation documenting corruption, secrecy and suppression of public input in state government. The newspaper found more than 90 percent of Kansas laws over a decade began as anonymously submitted bills, meaning people of Kansas typically did not know who introduced the legislation or why.

Former Sen. Cullen, co-chair of the Fair Elections Project, which works to stop partisan gerrymandering, echoed Burden’s  concerns about accountability.

“If you do a 999 motion and do all this terrible public policy stuff and it blows up and the public is mad at you, why do you (the politician) care?” Cullen said.

Vinehout said many interests, such as the rent-to-own industry, have begun to exert more influence over Wisconsin’s budget-making process. The problem the Legislature faces now is that these shadow groups have more power to get pieces of policy they want into the budget and obscure what actually has happened, Vinehout said.

‘Body Snatcher’ bills

Another stealth move is reminiscent of the 1978 film, “Invasion of the Body Snatchers.” Aliens inhabit people while keeping their outer appearance the same — but in these cases, legislation is secretly transformed.

These are bills introduced with one purpose, but later amended to do something entirely different, often after public hearings have ended. Burden said Congress is notorious for adding last-minute, unrelated items to the budget.

Members try to stick things in about immigration, abortion, guns, a train tunnel in New York, all worthwhile things to debate, but they see it as the vehicle that could pass them, he said.

The same thing happens in Wisconsin. One such body-snatcher bill, Senate Bill 54, was introduced in February 2017. The bill originally introduced would require the Department of Corrections to recommend revoking extended supervision, parole or probation if a person is charged with a new crime.

One year later, in February 2018, SB 54 was amended by a group of Republican legislators led by Rep. Joe Sanfelippo, R-New Berlin, to add construction of a $350 million prison, the first new state prison in at least 17 years.

Despite a year of deliberation on the original bill, the measure was amended and voted on the same day in the Assembly with no chance for public input.

The prison amendment was “grafted” onto the bill during a “packed three-day Assembly session where many bills were discussed and voted on, and a lot of people missed that it happened,” said Molly Collins, advocacy director for the American Civil Liberties Union of Wisconsin.

In the end, the ACLU and more than 50 other groups mobilized a campaign and transported protesters to Madison to lobby against the bill in the Senate. It failed to pass when the Senate declined to take it up.

“Building a new prison had not been discussed, let alone borrowing $350 million to fund it,” Collins said.

This story was produced as part of an investigative reporting class in the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction of Dee J. Hall, the Wisconsin Center for Investigative Journalism’s managing editor. The Center’s collaborations with journalism students are funded in part by the Ira and Ineva Reilly Baldwin Wisconsin Idea Endowment at UW-Madison. The nonprofit Center (WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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