After Losing the Supreme Court, Will Wisconsin Conservatives Exploit the State Constitution to Maintain Power?

Legislators in Madison might turn to constitutional amendments to protect former Gov. Scott Walker’s Act 10 and other attacks on labor and public education.

With liberal justices set to take control of the Wisconsin Supreme Court in August, a right-wing think tank is urging Republican legislators in the state to do an end-run around any attempt the court might make to roll back some of former Gov. Scott Walker’s signature legislation.

The Institute for Reforming Government (IRG)—a group where Walker previously served as honorary chair—wants GOP lawmakers to use their majority to create proposed constitutional amendments that would enshrine Walker’s anti-worker law, Act 10, into the state constitution—along with other legislation that undermined unions, workers, and public education over the past 12 years.

“Codifying critical policy reforms like Act 10 in the Wisconsin Constitution prevents judicial rulings that the reforms violate the Wisconsin Constitution,” said IRG Chief Legal Counsel Anthony LoCoco in a story by the Isthmus.

“It’s going to be difficult to accomplish things legislatively with divided government,” LoCoco said in a story by the Wisconsin State Journal. “But what conservatives do have is massive majorities in the Legislature, and that’s half of the equation for enacting a constitutional amendment to the Wisconsin Constitution.”

Republicans have their massive majority as a result of gerrymandering, which is what happens when politicians draw unfair district maps to help their party win more seats. The state’s gerrymandered districts are another legacy of the Walker era that allows conservatives to govern as if the Wisconsin electorate wasn’t evenly-divided by party preference. For example, In 2018, Democrats won 53% of the popular vote in the state Assembly, but Republicans won 63 of 99 seats. 

These unfair maps mean that Republicans in the Legislature have been able to block ideas with large, bipartisan majority support like abortion rights, legalized marijuana, and gun safety.

Proposed constitutional amendments must be passed in two successive legislative sessions before being placed on voters’ ballots, where they need a majority support to take effect. 

According to the Isthmus story, IRG is specifically urging the adoption of two constitutional changes. One would be misleadingly sold to voters as “worker freedom,” while preserving Act 10’s repeal of collective bargaining rights for most public employee unions and the state’s “right-to-work” laws, which further restrict union power and the ability of employees to join strong unions.

The second proposal from IRG is a “school choice” amendment, which would cement the creation of two separate, taxpayer-funded school systems in Wisconsin so that private and religious schools could continue to take advantage of public funds at the expense of cash-strapped public schools. 

Sen. Melissa Agard (D-Madison), the Senate minority leader, told the Isthmus the suggestion is a sign that conservatives are “so desperate to stay in power that they’re willing to weaponize our state constitution for their selfish political agenda.” 

“Wisconsin’s Supreme Court race was, in large part, a referendum on Republican governance over the last decade,” Agard added. “Rather than listening to the voters who are rejecting their extremist ideas, Republicans are attempting to enshrine these unpopular policies in the state’s constitution.”

Jeff Mandell of the progressive law firm Law Forward called it a “last-ditch effort” of the Republicans’ years-long “assault on democracy.”