Open government advocates are crying foul after a Republican state senator argued a liberal group cannot sue her over public records while the Legislature is in session.
Should Sen. Leah Vukmir, R-Wauwatosa, prevail, lawmakers could refuse to comply with the records law and could not be sued for any reason, observers said.
Vukmir has been in a legal battle with the Madison-based Center for Media and Democracy for months, with the group accusing her of violating the state’s open records law by failing to turn over records related to her involvement with the American Legislative Exchange Council, a corporate-financed conservative think tank that prepares legislation for lawmakers.
Vukmir filed a motion in Dane County Circuit Court this week arguing that she is immune from being sued while she remains in office.
The state Department of Justice, led by Republican Attorney General J.B. Van Hollen — charged with enforcing the state’s records law — filed the motion on her behalf.
Open records advocates argue that Vukmir is claiming to be above the law.
“Our state’s openness laws are fundamental to its ability to function as a democracy. Members of the Legislature, which passed these laws, ought to respect that,” the Wisconsin Freedom of Information Council said in a statement. “We call upon Sen. Vukmir to reconsider her position in light of the damage it could cause to the state.”
Dennis Dresang, professor emeritus of public affairs and political science and founding director of the UW-Madison La Follette School of Public Affairs, said he would be surprised if her controversial argument held up in court.
“It would make the whole open records law a joke if you couldn’t enforce it,” Dresang said.
He added that he was surprised the state Justice Department would make such an argument, saying “it seems more partisan than based on logic.”
But Assistant Attorney General Daniel P. Lennington argued in the motion that a civil lawsuit can interfere with members’ ability to serve those in their districts.
“A civil lawsuit can interfere with a Member’s full participation representing her constituents, and when a legislator cannot appear because of a civil lawsuit, then the people whom the legislator represents lose their voice in debate and vote,” he wrote.
Legislative sessions currently run continuously from the day lawmakers are sworn in until the next swearing in, which is two years later. The next two-year legislative session typically begins on that day.
Brendan Fischer, CMD general counsel, called the motion an “outrageous move.”
“It would basically mean the open records law is optional for lawmakers,” Fischer said. “There would be no penalties if they refuse to comply.”
Fischer said it appears Van Hollen is helping to dismantle the open records law in an effort to keep ALEC’s records secret.
Vukmir staffer Dean Cady referred questions to the Justice Department, citing ongoing litigation.
Wisconsin is one of many states that have some sort of legislative immunity provisions included in its state constitution.
Rick Esenberg, the founder and president and general counsel of the Wisconsin Institute for Law & Liberty, said Vukmir’s motion raises questions about what it means for the Legislature to be in session.
“My sense is there’s no case law that settles this one way or the other,” Esenberg said.
The group represented the conservative John K. MacIver Institute for Public Policy in a lawsuit against Sen. Jon Erpenbach, D-Middleton, which sought emails from constituents.
Erpenbach said he consulted the Justice Department in that case and got an extremely different reaction.
“He refused to provide any counsel other than to tell me to acquiesce to the conservative organization’s request,” Erpenbach said.
Dana Brueck, Justice Department spokeswoman, said Erpenbach has no knowledge of the agency’s discussions with Vukmir.