The Horns of Governor Walker’s Dilemma

As all of you are aware, on December 5, in an “Extraordinary Session,” Wisconsin Republicans passed a number of measures designed to provide the state GOP future political advantage and/or limit incoming Democrats’ ability to take steps upon which they victoriously campaigned.  These “Lame Duck” actions have received national notoriety and been criticized not only by Democrats but also by some prominent state Republican donors and politicians (including former Republican Governor Scott McCallum).  On December 9, the Wisconsin State Journal reported that as of Friday, December 7, the bills had not yet been formally sent to Governor Scott Walker for action, and that they will not be formally sent to him until December 20 unless he asks for their formal tender.  The Milwaukee Journal-Sentinel reported on December 8, “Walker can sign the bills into law, veto them, or exercise his partial veto authority to strike certain provisions before signing them.”

It is certainly not a stretch to suggest that that these bills were constructed in a spasm of Republican partisanship and indignation arising immediately following the Governor’s close defeat, in an attempt to hold onto policy directions forged by Republicans over the last eight years that incoming Governor Tony Evers has pledged to modify.  ­­­­­­­­­­­­­­­­­­­­­­During debate on the bills – which were, according to Senate Majority Leader Scott Fitzgerald, crafted in close consultation with Mr. Walker’s office — Wisconsin State Assembly Speaker Robin Vos stated, in urging their passage:  “… [W]e are going to have a very liberal governor that is going to enact policies that are in a direct contrast to what many of us believe in.”

Any number of pundits have commented on the effects that the Republicans’ actions will have upon the reputation of the State of Wisconsin if these measures are enacted, and I certainly have my impressions, but those can await the final disposition of the bills by the Governor.  What I find intriguing at present is the fact that the Republicans don’t appear to have anticipated the amount of high-profile notoriety and ridicule their actions would bring upon themselves and the state.  Perhaps most intriguing are the horns of the dilemma that Mr. Walker seems to be personally confronting as he determines how to act upon these measures – horns that he may now appreciate if he has not yet called for the bills to be sent to him.

Mr. Walker is a career politician.  Running for and holding office has been his life.  If he signs these bills — which already have his fingerprints all over them — he’ll be branded within Wisconsin and across the nation as a Sore Loser who was determined to thwart the will of the majority of the 2018 Wisconsin voters – a label that I would submit could be much more detrimental to any future political aspirations he might have than his narrow loss.  On the other hand, if he vetoes or materially modifies the measures, he’ll presumably be viewed as a traitor by his Wisconsin Republican legislative allies (who have already reaped and will continue to incur derision for their passage of these measures) and the core supporters that would form the bedrock of any future run he might wish to undertake for Wisconsin statewide office.

I have wondered whether there might be a third avenue – a way for the Governor to have his cake and eat it, too.  Will the bills become law if Mr. Walker simply does nothing?  Article V, Section 3 of the Wisconsin State Constitution provides:

“Any bill not returned by the governor within 6 days … after it shall have been presented to the governor shall be law unless the legislature, by final adjournment, prevents the bill’s return, in which case it shall not be law. [Emphasis Added].”

Numerous accounts of the Extraordinary Session have indicated that the Legislature “adjourned” after passing the controversial measures.  With zero background in the nuances of Wisconsin legislative practice, I’m assuming that this adjournment would be considered “final” in the constitutional sense.  If so, any failure by Mr. Walker to act will cause the bills to expire without becoming law – which, I suspect, would cause him to incur the same level of wrath from his supporters as would an outright veto.

Clearly more to come.  Something I wonder, but will never know:  whether at this point, Mr. Walker wishes, from his own personal perspective, that he had simply graciously accepted his defeat …

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