Wisconsin Defense Counsel :: Political Tidbits

Legislation

WDC Political Tidbits

Compiled by
The Hamilton Consulting Group
Sept. 2, 2010

Heading into the final days of summer, electioneering continues to pick up with the September 14^th Wisconsin primary just weeks away. GOP gubernatorial candidates Scott Walker and Mark Neumann recently held their last public debate. The winner of the primary faces Milwaukee Mayor Tom Barrett in the general election. The latest Rasmussen Report poll shows both GOP candidates slightly leading Barrett, with Neumann leading Barrett 48 - 44%, and Walker leading Barrett 47 - 44%. Barrett has one primary opponent, Tim John of Oconomowoc, but polls show that Barrett is solidly in control of that race.

Candidates in both the Senate and Assembly continue to hold fundraisers and knock on doors as just a handful of races in both houses could ultimately decide which party controls each chamber. The biggest battle on the Democratic side in next month's primary election involves the 7^th Senate District race in Milwaukee where incumbent Jeff Plale (D-South Milwaukee) is on the receiving end of considerable negative campaigning from a number of groups who support his more liberal opponent, Milwaukee County Supervisor Chris Larson. Environmental and progressive groups are upset with what they perceive as Sen. Plale's involvement in the "Clean Energy Jobs Act's" ultimate demise, which those groups supported.

While candidates run for office, state agencies are rushing to issue a slew of regulations before a September 1 deadline. Any proposed rule sent to the Legislature after September 1 must be reviewed by the next Legislature. With a new incoming Governor and potential power shifts in either house, many state agencies are working feverishly to meet the September 1 deadline. Below is a discussion of DNR rules recently adopted by the Wisconsin Natural Resources Board.

Political Tidbits will provide continuous updates on election news and other government news. Also, please visit Hamilton Consulting Group's Blog for timely updates.

Wisconsin Natural Resources Board Approves Rules before September Deadline

The Wisconsin Natural Resources board this month passed a number of proposed air and water regulations at its last meeting. September 1 is the deadline for all rules to be considered by the current Legislature.

Among the rules adopted were ones pertaining to:

In addition, the NRB approved rules relating to groundwater quality standards (click here and here), water use fees, and water conservation and water use efficiency for water users.

Earlier this year the NRB approved controversial rules setting strict and costly phosphorus limits for Wisconsin rivers, streams, and lakes.

For more information about these and other rules, visit Hamilton Consulting Regulatory Watch.

Wisconsin Builders Association Scores Victory in Stormwater Lawsuit

The EPA this month reversed course on stormwater regulations as a result of legal action filed by the Wisconsin Builders Association (WBA) and National Home Builders Association (NAHB). The proposed stormwater management regulations sought to establish the first numeric effluent limits on the amount of pollutants in stormwater that may be discharged from certain construction sites.

The WBA, along with the NAHB, filed a petition for review asking the EPA to revise its effluent limitation guidelines. The WBA argued that the data used by the EPA setting the limitation on the amount of sediment that can be discharged from a construction site was arbitrary and based on flawed analyses. The proposed rule set a limit of 280 "turbidity units" on stormwater discharges from construction sites disturbing more than 10 acres of land at one time.

Conceding that it used flawed data, the federal government filed a motion in the United States Court of Appeals for the Seventh Circuit seeking a partial vacature of the final rule and a hold on further litigation until February 2012 to allow the agency time to rewrite the rule.

According to figures submitted by the home building industry, the regulations would have cost home builders up to $10 billion annually to comply with the proposed regulations.

Wisconsin Supreme Court Halts GAB Rule Regulating Issue Advocacy

The Wisconsin Supreme Court this month issued an injunction enjoining the Government Accountability Board (GAB) from enforcing a recently promulgated rule regulating issue advocacy. The order was issued on a 4-3 vote, with Justices David Prosser, Patience Roggensack, Annette Ziegler, and Michael Gableman issuing the injunction. Chief Justice Shirley Abrahamson, and Justices Ann Walsh Bradley and Patrick Crooks were dissenting.

The rule promulgated by GAB went into effect August 1. The new rule regulates issue ads by creating a new definition for "communication" under GAB 1.28. The rule creates an irrebuttable presumption that certain communications are "susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate," thus triggering existing obligations and regulations for political speech.

According to the complaint, any form of speech that names any person running for political office in the context of discussing a policy issue would trigger numerous regulations, such as filing with GAB and paying a $100 fee; creating a depository account for all expenditures related to the communications; filing an oath for "independent disbursements" prior to any communication subject to the rule; preparing and publishing a disclaimer with every communication identifying the sponsor of the communication; and demonstrating that the person making the communication did not coordinate with the candidate.

The parties challenging the rule argue that it creates an unconstitutional restraint on free speech and that GAB did not have authority to issue the regulation absent legislation enacted by the Legislature. In the complaint, the challengers argue that the rule could apply to private communications never before contemplated as political speech, such as emails between two private parties discussing policy issues of the candidates; books and videos published immediately before an election; academic and scholarly work published prior to an election; or even a disgruntled person painting a sign on his or her barn.

Similar challenges were brought in federal court, where GAB officials entered into a stipulation agreeing not to enforce the regulations during the upcoming election.

PSC Approves Proposed Wind Siting Rules

On August 9, 2010, the Wind Siting Council (Council) submitted to the Public Service Commission (PSC) its final recommendations for uniform wind siting rules. The Council was formed by 2009 Wisconsin Act 40 (Act 40), which created a policy framework for uniform local regulations of wind energy systems in Wisconsin. Act 40 directed the PSC to promulgate rules to specify maximum restrictions that a municipality can impose on installation and use of wind energy projects throughout Wisconsin.

The 15 member Council included "stakeholders" from various interest groups, as required by Act 40 (property owners, wind developers, realtors, environmental organizations, public citizens, utilities and local government experts). The final recommendations covered a variety of issues:

Wind Energy System Size Categories
Safety Setbacks
Noise Performance Standards
Shadow Flicker Performance Standards
Signal Interferences
Complaint Resolution
Property Value Protection
Leases and Easements
Construction and Operation Standards
Notification Requirements
Application Process
Political Subdivision Process

Four members of the Wind Siting Council submitted a minority report (Appendix E, p. 45) to the final recommendations. The minority report argues that a number of the members appointed to the Council did not accurately meet the criteria set forth in the legislation. Specifically, the minority report noted the appointments were stacked heavily in favor of members having direct or indirect financial interests promoting wind development in Wisconsin.

The minority report further criticized the failure to adequately address health issues associated with wind turbines. In addition, the minority report argued that the Council failed to provide meaningful noise protections from wind energy systems or shadow flicker. The minority also noted their disagreement with the majority over the issue of whether wind turbines decrease nearby residential property values.

Special Legislative Committee Studies Judicial Discipline and Recusal

An interim special joint legislative committee has been appointed to study the issues surrounding judicial discipline and recusal.

Members of the committee at the first public meeting on August 5 heard competing arguments from two sitting Wisconsin Supreme Court justices. In his address to the committee, Justice Patrick Crooks urged the committee and the Legislature to adopt new rules for judicial discipline and recusal, while Justice Patience Roggensack argued that changes to Wisconsin's system for disciplining judges and justices is unnecessary.

Justice Crooks cited the case against his colleague, Justice Michael Gableman, as evidence why new rules should be adopted. Earlier this year the Wisconsin Supreme Court deadlocked (3-3) on a complaint brought against Justice Gableman for alleged misstatements made in a campaign advertisement during the 2008 election.

A lower panel of judges dismissed the complaint brought by the Wisconsin Judicial Commission. In his testimony to the committee, Justice Crooks argued that the case against Justice Gableman did not provide final resolution and that a jury hearing should be allowed if a hearing panel provides no resolution.

Justice Roggensack countered that Wisconsin's current system is effective and that the cases brought against Justice Gableman and another case brought against Justice Annette Ziegler illustrate that changes are unnecessary.

The next special legislative committee hearing planned for September will focus on the issue of judicial recusal. This issue was brought to the forefront last year when the League of Women Voters petitioned the Supreme Court to adopt rules for recusal when a party in an action or the lawyers in the case have previously contributed to or spent money in a campaign on behalf of a sitting judge or Justice presiding in the case. The League's petition sought a $1,000 threshold.

The Wisconsin Supreme Court rejected the League's rule petition and instead adopted rules providing that a judge or Justice is not required to recuse him or herself simply because a party in the case has either contributed to their campaign or issue ads for or against a particular candidate.

Some observers note that it appears that groups opposed to the Supreme Court's new recusal rules are heading to the Legislature to have those rules changed.

Hamilton Consulting will provide continuous updates on the committee meetings and its final proposed legislation.

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HTML clipboardWDC Political Tidbits is a newsletter on Wisconsin political and policy developments prepared for WDC members by The Hamilton Consulting Group.

In This Issue

Wisconsin Natural Resources Board Approves Rules before September Deadline

Wisconsin Builders Association Scores Victory in Stormwater Lawsuit

Wisconsin Supreme Court Halts GAB Rule Regulating Issue Advocacy

PSC Approves Proposed Wind Siting Rules

Special Legislative Committee Studies Judicial Discipline and Recusal

Upcoming Fundraisers

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