Richard Moore

American Investigator: Reporting the case for constitutional integrity

Republicans vote to gut 
Wisconsin's open records law

Posted by Richard Moore July 3, 2015


Budget measure would redefine records, exempt Legislature

In what could be a historic action, the Republican-controlled Joint Finance Committee voted on the eve of the nation’s Fourth of July holiday to effectively repeal the state’s open-records laws.

The massive provisions, inserted late in the process and taking virtually everyone by surprise, would exempt the Legislature completely from the open-records law, redefine public records so as to effectively remove the vast majority of state-agency records from inspection, and roll back public access to the state’s online circuit court records, known as CCAP.

Lawmakers voted 12-4 along strict party lines to pass the budget measure with the open-records provisions included. The budget now heads to each chamber of the Legislature.

That budget is unlikely to be changed in the Assembly; more chance of an amendment exists in the Senate, but the fate of the open-records law seems likely to rest with Gov. Scott Walker and his veto pen.

All Republicans voted for open-records rollbacks; all Democrats opposed them; but the package of extreme changes united unlikely allies across the political spectrum, from liberal lawmakers to the conservative MacIver Institute to the Wisconsin Newspaper Association.

While previously heated topics such as Milwaukee Bucks arena financing, transportation, and shoreland zoning had taken center stage, the unveiling of the attack on open records refocused everyone’s attention.

MacIver Institute president Brett Healy said transparency in government was not a liberal or conservative issue but a good government issue. 

“Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable,” Healy said. “Therefore, it is frustrating that legislative Republicans, on the night before a holiday weekend, have taken steps to substantially weaken the ability of their constituents to gain access to crucial documents. As an organization that produces original news content, we employ the open records statutes to shed light on the machinations of government. Weakening those laws weakens the ability of citizens to see what their elected officials are doing.”

Sen. Jon Erpenbach (D-Milwaukee), whom the MacIver Institute, represented by the Wisconsin Institute for Law & Liberty, successfully sued to turn over records, agreed with his previous foes on this vote.

“Some of the first laws created in Wisconsin after we became a state were laws that granted access to public records and meetings,” Erpenbach said. “President Nixon and the Watergate scandal brought unprecedented transparency to governments all over the United States and with good cause; democracy cannot work without transparency. Creating exemptions in open records laws in the dark of the night is the biggest mistake Republicans could ever make.”

Most Republicans remained silent as of Friday afternoon, though state Sen. Tom Tiffany (R-Hazelhurst), who voted for the provisions as a member of the JFC, had a change of heart. He also said he would continue to follow the law as it currently stands.

“Last night the Joint Committee on Finance approved changes to the public records law in a wrap-up motion,” Tiffany said. “I am urging legislative leaders to remove these changes from the budget. 

Regardless of any changes made to the state public records law, my office remains open, transparent and accessible to public records requests and inspection of the records.”
State Sen Robert Cowles (R-Green Bay) said he would not vote for the budget if the language stood.

The changes
The budget process is well-known for last-minute surprises, but the attack on the open-records law jolted even the most jaded observers. A quick look shows why.

The change likely to garner the most headlines is the Legislature’s bid to exempt itself entirely from the law. Under the motion, the records and correspondence of any officer of the
Legislature, any legislative employee, and of any legislative service agency would not be
considered public records for purposes of public records preservation by the Public Records Board. In addition, if the measure is enacted, as of last Wednesday, no provision of the open-records law that conflicts with a rule or policy of the Senate or Assembly, or with a joint rule or policy, would apply to any records subject to that rule or policy.

According to the budget motion, the measure would also give legislators “a legal privilege or right” to refuse to disclose, and to prevent a current or former legislative staff member from
disclosing, all communications and related records between the Iegislator, or a member of the legislator’s staff, and a member of the clerk’s or sergeant’s staff; between the legislator or a member of the legislator’s staff and a member of the nonpartisan staff; between the legislator and a member of the legislator’s personal staff; between two or more members of the nonpartisan staff or clerk and sergeant staff related to the legislative business of a legislator; between two or more members of the legislator’s personal staff; and between the legislator or a member of the legislator’s personal staff and “any other person.”

In other words, virtually all legislative records would be sealed from public access.

What’s more, the budget amendment continues, a legislator would have a legal privilege or right to refuse to disclose information from which can be determined the identity of any person who  communicates with the legislator within the course of legislative business.

Not only communications and correspondence but bill drafts would now be off limits to the public.

“For purposes of these legislator privileges, legislative business means all aspects of the Iegislative process, broadly construed, and includes: (a) researching, drafting, circulating, discussing, introducing, and amending legislative proposals; (b) the development of public policy, including research, analysis, consideration, and discussion of issues relevant to public policy; (c) all aspects of legislative proceedings; (d) all matters related to the policies, practices, and procedures of the legislative branch; (e) all matters related to the work of a legislative committee; (f) investigations and oversight; (g) constituent relations; and (h) all other powers, duties, and functions assigned by law, rule, custom, policy, or practice to the Legislature, one house of the Legislature, a committee of the Legislature, or a member of the Legislature.”

In other words, everything.

That’s not all, folks
As damaging as those provisions would be to legislative transparency, perhaps even more substantive is the redefinition of what constitutes a public record in the first place – a change that would foreclose access to most state-agency records.

The budget measure would exclude all so-called “deliberative materials” from the definition of a public record. Deliberative materials are described as all communications and other materials,  including “opinions, analyses, briefings, background information, recommendations, suggestions, drafts, correspondence about drafts, and notes, created or prepared in the process of reaching a decision concerning a policy or course of action or in the process of drafting a document or formulating an official communication.”

In other words, most state and local government records.

Republican lawmakers took aim, too, at the state’s circuit court online public access database, CCAP. 
The budget motion would force removal of records in which all charges have been  dismissed prior to trial, if the dismissed charges were for crimes carrying prison terms of six years or less, did not involve a violent crime, and the person charged was under 25 when the charges were filed, if a court so orders.

In general, the journalists of the state-run media aren’t too smart. That goes without saying. That’s why they end up as talking heads for establishment broadcast outlets, or as pen-pushing propagandists for government bureaucracies. 


Touring the New York Times newsroom must be like visiting a giant puppet museum, but I digress. 


Anyway, because they are not so smart, they resort to tactics like those we now see practiced around the issue of climate change. Our position is settled science, the media tells us, and because it’s settled science we can’t allow debate because, well, if there was debate, we might be asked questions we can’t answer and don’t understand.


You get the picture.


It’s different, though, when you get into the alleyways of power and into the corridors of academia. They can’t run from debate, and so they have to try a different tactic. Read more ...

Posted by Richard Moore April 8, 2015


Whenever my mother used to really like something, I mean really like something, she would talk about it incessantly and give it her favorite stamp of approval.


It’s all the rage, she would say.


The TV show The Beverly Hillbillies was all the rage. Fry daddies were all the rage. So were pedal pushers.


These days, in the shallow channels of state-run journalism, what’s really, really liked is the notion of squashing false balance. Journalists are obsessed with the idea of providing true objectivity in their stories and avoiding false balance at all costs. 


Everywhere these journalists look, they see false balance. They talk about it incessantly. It’s all the rage.


So just what is false balance? Simply put, in a news piece, it’s giving too much credibility – or any at all – to a point of view that has been thoroughly debunked. One example would be to give those who believe in bloodletting equal voice in a news story about options for treating pneumonia. The reporter might do so in the interest of fairness, but it’s not real balance at all; it’s false balance because bloodletting as a viable treatment has been definitively controverted. Read more.

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The New Bossism is a powerful alliance of special interests, entrenched government bureaucracies and the political class. This coalition, a dangerous combination of money and secretive legal authority, poses a grave threat to our democratic institutions. What we are seeing both across the nation is the emergence of a new tripedalism in politics, a three-legged political network so vast it can only be called a machine, with two predominate powers essentially being supported by a separate, lesser instrument - the third leg of the stool, if you will.


In the old days, the party bosses of the political class forged deals with special-interest unions and crony capitalists to form the Old Bossism of the Democratic Party; these days the bureaucratic managers (the first leg of the stool), so well insulated from elected officials, are the ones making back-room deals with crony capitalists and other identity groups (the second leg), protected and nurtured by the third leg of the stool, the heavily subsidized state-run media.

 

The New Bossism has six identifying and controlling trademarks. One, the bosses reign through the law of rule rather than the rule of law; two, there is an ever increasing quantum of police power, and ever increasing extension of police power to state employees; three, the new bosses oversee and protect things rather than people; four, they are intransigently opposed to transparency in government; five, they are hostile to the U.S. and state constitutions in the name of the politics of reinvention; and six, in true totalitarian fashion, the state not only regulates but controls; and it is heartless in doing so.


With the proper political strategy, the new bosses can be defeated and constitutional integrity restored. This book will explain how!


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Link of the Day: The impact of Obama's new overtime pay rule, besides lower wages and joblessness. You'll be surprised.

Journeys of Lightheartedness

Don't forget to check out my new book, Journeys of Lightheartedness here! It's not political – a book of travel essays – but, hey, it will set the soul to dancing. Unless the soul prefers to sing!


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