May 31, 2005
Logrolling Controversy in Wisconsin
Posted by Gordon Smith

I am not referring to the Lumberjack World Championships in Hayward, but to claims made by Austin King of the Madison City Council against Governor Doyle and several state legislators. According to King, the Governor and state legislators violated a Wisconsin statute by agreeing to increase the state minimum wage in exchange for a law prohibiting municipalities from setting their own minimum wages. This was a classic political compromise, over a year in the making, and one that steps on the toes of the Madison City Council. King wants Wisconsin Attorney General Peggy Lautenschlager to "investigate it thoroughly, and hold any who have committed felonies responsible to the full extent of the law, no matter how high a position they hold in our government."

The relevant provisions of the Wisconsin statute are as follows:

13.05 Logrolling prohibited. Any member of the legislature who gives, offers or promises to give his or her vote or influence in favor of or against any measure or proposition pending or proposed to be introduced in the legislature in consideration or upon condition that any other person elected to the same legislature will give or will promise or agree to give his or her vote or influence in favor of or against any other measure or proposition pending or proposed to be introduced in such legislature, or who gives, offers or promises to give his or her vote or influence for or against any measure on condition that any other member will give his or her vote or influence in favor of any change in any other bill pending or proposed to be introduced in the legislature, is guilty of a Class I felony.

13.06 Executive favor. Any member of the legislature who gives, offers or promises to give his or her vote or influence in favor of or against any measure or proposition pending or proposed to be introduced in the legislature, or that has already been passed by either house of the legislature, in consideration of or on condition that the governor approve, disapprove, veto or sign, or agree to approve, disapprove, veto or sign, any other measure or proposition pending or proposed to be introduced in the legislature or that has already been passed by the legislature, or either house thereof, or in consideration or upon condition that the governor nominate for appointment or appoint or remove any person to or from any office or position under the laws of this state, is guilty of a Class I felony.

As far as I can tell, there has never been a prosecution under this statute. In his letter to Lautenschlager, King writes: "I am unaware of any recent prosecutions for logrolling, although I am sure the crime is committed these days with some frequency. Still, I doubt there has recently been a case in which the actors are this obvious about it, with this many catalogued public statements."

Given the breadth of the statutory language, King makes a pretty good case. He also is undoubtedly right that logrolling occurs "these days with some frequency." This sort of criminal statute reminds me of Larry Ribstein's complaint about criminalizing corporate governance: it's awfully hard to tell the difference between ordinary business and a criminal act.

Is this sort of statute good public policy? The case against logrolling is not so clear. (If you are interested in that issue, try Richard L. Hasen, Vote Buying, 88 California Law Review 1323 (2000).) Even if we all agreed that logrolling was a terrible practice, we might also conclude that we can police logrolling more effectively via other mechanisms, including public outrage and elections.

Will anything come of the King complaint? Certainly not a felony prosecution, but perhaps a lively public debate about logrolling. Actually, that sounds like fun.

UPDATE: The Wisconsin State Journal opines: "To undo the compromise by declaring it to be illegal logrolling would be wrong."

The Milwaukee Journal-Sentinal puts the debate in context:

According to the federal Bureau of Labor Statistics, about 49,000 Wisconsin workers immediately benefit from a higher minimum wage. That's less than 2% of the state's 2.8 million-worker labor force and less than 3% of all the workers paid hourly wages.

And finally, this from the local NBC affiliate:

Lautenschlager's office is not commenting on the logrolling claims, but it just so happens there is a recently completed legal memorandum on logrolling floating around the capitol. The memo was written by Attorney Mike Wittenwyler for a private client. He won't say who paid for it, except to say it wasn't a politician.

"I think the legal principles that are in the memorandum can be applied to the current debate over the minimum wage," says Wittenwyler.

Wittenwyler says the minimum wage compromise is not logrolling, because even though it's not all in one bill, it's the same issue. "It's deliberation over a single piece of legislation is how I would view it. I have a hard time seeing it as logrolling in the traditional sense of how it's been used and how the statute in Wisconsin applies."

How can Wittenwyler speak about "the traditional sense of how it's been used and how the statute in Wisconsin applies" when no one has ever been prosecuted under this statute! And I see no basis for his single-issue argument in the text of the statute.

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Comments (2)

1. Posted by Actuarity on June 1, 2005 @ 16:25 | Permalink

I agree with you regarding no basis to exclude this instance because it is a single issue -- it still involves multiple measures, for or against which influence/favor/votes are being promised. I suppose there could be a fine line between a lawmaker stating a position and indicating favor.


2. Posted by Gordon Smith on June 1, 2005 @ 16:56 | Permalink

Actuarity: "I suppose there could be a fine line between a lawmaker stating a position and indicating favor."

If anyone seriously attempted to enforce this law, legislators would find it very easy to avoid. Although some starry-eyed legislator in 1911 may have thought that this statute was a great innovation, I think statutes like this function more as aspirational standards than enforceable limits on behavior. Perhaps the expressive effect of the law has some value, but it is useless as an enforcement tool.

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