In my prior post about logrolling, I quoted the following statement from Madison attorney Mike Wittenwyler of Godfrey & Kahn:

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."

I greeted Wittenwyler's positions with skepticism:

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.

Yesterday, Wittenwyler was gracious enough to send me that memorandum, which I have uploaded here with his permission. Among other things, the memo describes a 1981 dispute in which then-District Attorney (now Governor) Jim Doyle expressed his opinion that the statute applies only to "an agreement in which one legislator agrees to vote for one bill in consideration for another legislator's agreement to vote for another bill."

This and other incidents in which officials have refused to prosecute logrolling are the basis for Wittenwyler's conclusion, "I have a hard time seeing [the minimum wage laws] as logrolling in the traditional sense of how [the statute's] been used and how the statute in Wisconsin applies." As became clear in our email exchange, Wittenwyler is relying on executive actions (decisions not to prosecute) to understand the proper interpretation of the statute. This makes good sense if the question is whether the District Attorney should prosecute, but would this history influence a court? I would be interested to hear more from others on this, but my skepticism was based on the assumption that a court would treat any prosecution under the statute as a case of first impression, and that it would not feel bound by prior administrative interpretations of the statute. That said, I see no reason that a court could not take that history into account. Interesting.

With respect to Wittenwyler's conclusion that the two minimum wage bills constituted a single issue, Wittenwyler points to Wis. Stat. Section 13.07, which states that the logrolling prohibition does not prohibit agreements "to compromise conflicting provisions of different measures." My problem with Wittenwyler's position here is that Section 13.07 requires "agreements to compromise conflicting provisions of different measures." In the minimum wage context, the two bills were never in conflict. Indeed, they were created for the purpose of providing a unified front on minimum wage. (This, of course, only raises another issue: does the application of the statute really turn on something so trivial as whether two provisions were passed in different bills or as part of one larger bill?)

The word from Wittenwyler is that the Dane County District Attorney is likely to issue his findings on this matter by next week.

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