A ruling by Dane County Judge David Flanagan that lets lawmakers keep drafts of legislation under wraps is a slap in the face to open government.
Flanagan ruled in June in a case brought by former Attorney General Peg Lautenschlager. She sued two lawmakers in 2005 for failing to make public the draft of their bill to legalize the carrying of concealed weapons after they shared the draft with the National Rifle Association. Flanagan said the state’s open records law doesn’t apply until after a bill is formally introduced.
Those working in the Capitol will argue that bill drafting is akin to sausage making — the finished product might be palatable, but it’s best not to watch the process. Or they’ll argue it’s sort of like crafting a newspaper story — journalists don’t want the public to see our work before the editing process makes a story publishable.
But there’s a key difference between legislation, sausage and news: Taxpayers foot the bill for those crafting legislation.
It’s also appalling that taxpayers must pay the $400,000 in legal fees run up by lawmakers so they can limit your knowledge of what they’re working on.
Rep. Scott Gunderson, R-Waterford, one of the lawmakers sued by Lautenschlager, hailed Flanagan’s ruling as protecting the “institutional integrity of the Legislature.”
The ruling actually squashes integrity. If it doesn’t allow special interests such as the National Rifle Association to essentially write legislation, the ruling certainly allows them inside tracks to lobby for bills. The issue arose again recently when Senate Democrats unveiled details of a “Healthy Wisconsin” plan hours before holding a public hearing. The Senate put the plan in its version of the 2007-09 state budget the next day. AARP — a special-interest group — reportedly received a draft of the plan two weeks earlier.
If bill drafts are shared selectively with special interests or others outside the legislative drafting process, then those documents should be public records available to anybody else, too.
Sure, lawmakers can discuss these proposals with special interests to make sure proposed legislation matches the intent. But it does no harm for lawmakers to share actual documents with everyone, not just the groups seeking a new law or program.
Attorney General J.P. Van Hollen should appeal Flanagan’s ruling. And at the least, lawmakers should adopt an open records bill proposed by Rep. Louis J. Molepske Jr., D-Stevens Point. Assembly Bill 84 would allow anyone who believes a bill has been shared with lobbyists or others outside the circle of government staffers drafting the bill to make an open records request of the lawmaker who is having the bill prepared.
“Let’s not kid ourselves here; this is about power and the ability to promote our ‘friends” causes indiscriminately,” Molepske said in response to Flanagan’s ruling.
“Open government can hardly be considered a frivolous issue, and I can think of no reason why the general public should not have equal access to the very documents that their taxes help to pay for.”
Neither can we.
Greg Peck is opinion page editor of The Janesville Gazette. Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open government.