Now that voters have shifted the political balance of the Wisconsin Supreme Court, the real suspense kicks in.
Janet Protasiewicz won the most expensive judicial election in United States history on April 4. This will give liberal justices a 4-3 majority on the Court when Protasiewicz is sworn in on August 1. After 15 years of right-wing control of the Court, we come back around to the same questions we always face when liberals or Democrats retake an office or body: Will they actually act with their power? Or will they get wishy-washy, making excuses as the clock runs out, and continue fueling the cycles of futility and resentment that the right is so adept at exploiting? (I know, I know, justices are supposed to dwell in some magisterial realm above the political fray, but we have judicial elections and permissive campaign-finance rules, so let’s just call it what it is.)
Come August, the Court and Gov. Tony Evers’ administration need to put the squeeze on the Republican majority in the Wisconsin Legislature, who’ve shored up their power through gerrymandering and frequently tried to usurp executive-branch powers. The opportunities are enormous, as everyone who got out to vote for Protasiewicz already knows. The Court’s new majority could throw out Wisconsin’s draconian abortion ban and put us on course to have fair electoral maps for state legislative and U.S. House seats. Those two necessary goals should be only the start, not to mention dismantling Act 10, “right-to-work,” and the 2018 lame-duck laws.
Wisconsin’s cities and counties need to take part in that as well, and should work together to challenge dozens of state laws—some Walker-era, some older—that preempt their ability to set local policies on everything from housing to labor rights to guns to environmental regulation.
Wisconsin’s local governments currently cannot enact tighter regulations on landlords and rental properties than what is already provided for in state law. They cannot enact rent control, period. They can’t set minimum wages higher than the state minimum wage of $7.25 per hour (we actually have former Democratic Gov. Jim Doyle to thank for that). They’re barred from creating all sorts of other local protections for workers, including requirements for overtime pay and benefits. They’re essentially prohibited from creating public broadband services that have any hope of competing with private monopolies like Spectrum. They can’t ban plastic bags. They can’t regulate Lyft or Uber on their own terms. They can’t raise property taxes beyond state-imposed limits without holding referendums, even as the state’s shared-revenue system for municipalities puts them in a bind. Local gun laws? Forget it. And during the COVID-19 pandemic, legislative Republicans have flexed their muscle through sheer neglect, confident that gerrymandering would shield them from electoral consequences.
We need to be able to create local solutions without interference from Republican legislators. They’ve made a blood sport of sticking it to Madison and Milwaukee, even as the beneficial impacts of those two cities’ local economies continue to radiate outward to the rest of the state. Republicans have made Wisconsin a lab rat for fascism over the past 13 years, slamming a head-spinning number of model bills through the Legislature and ensuring that the fix was in on the Court. Now that we’ve got a chance to end their gruesome experiments, we should exploit it to the fullest. Let’s flay Scott Walker’s legacy before his eyes.
A blatantly abused power
These preemption laws are often transparent products of corruption and self-dealing. In a 2019 story on state laws preempting local tenants’ rights protections, the Milwaukee Journal Sentinel called it “the Landlords’ Legislature.” Lawmakers in both parties, including Assembly Speaker Robin Vos (arguably still the most powerful elected official in the state), are themselves landlords. “The landlord-driven bills stand out for the volume, quick passage and the fact some came in direct response to specific problems faced by the lawmaker landlords,” Journal Sentinel reporters Cary Spivak and Mary Spicuzza noted.
Madison especially should gear up to lead a charge against preemptions on tenant protections. The city has made some gains on tackling its affordable housing crisis, but is still too much at the mercy of landlords and private developers. During our recent mayoral election and recent debates over zoning changes, we’ve heard endless vague rhetoric about the predations of “out-of-town landlords” and high-end developers, but little specific policy commitments for taking those issues head-on. Some people in the debate are clearly not serious at all about tackling those bigger problems and simply evoke them as a way to gum up the debate; others might be more interested in actual change, but hesitant to make policy commitments that would conflict with preemption laws.
Preemption laws, and the general fatigue from Republicans raining holy hell upon us unchecked for so long, have the pernicious effect of dampening policy debates at the local level and limiting our sense of what is possible. They also give local elected officials an endless excuse for inaction. Unfortunately, a fair number of them probably like having that excuse—what a wonderful place Madison is to make a career out of calling yourself progressive and then chronically pleading helplessness. It’s time to unlearn that habit. We have to make a deliberate effort to push back against this demoralization and narrowing. We have to renew the political contrast between Wisconsin’s cities and the power-mad values that have wrecked our state government.
There’s also some clear legal principle at work here. Wisconsin’s Constitution does give local governments the authority to “determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village,” as Article XI puts it. Certainly the Legislature can preempt local governments from doing certain things, but it’s time to reset the debate on where these respective powers begin and end. The Wisconsin Constitution gives the Legislature ultimate power over local governments in matters of “statewide concern,” which is a legal and rhetorical hole you could drive a truck through.
When state legislators create preemption laws that are clearly targeted at punishing specific cities and counties, that undermines the notion that they’re addressing a statewide concern. If a landlord finds it too hard to evict people in Madison, that is not a statewide issue—just an issue that resonates with racists and cranks statewide. Article XI clearly gives the Legislature broad power to preempt. This does not excuse legislators from using that power wisely. It does not prevent the judiciary from applying some tests and guardrails to exercises of that power.
The preemption of local tenant protections has real-time urgency. On the day that Protasiewicz is sworn in, renters across Madison will be embarking upon the hellish summer ritual of moving on an August lease schedule. A lot of them will be sucking up ever-higher rents, or moving to avoid a rent increase. If you haven’t grasped how dire things are for renters in Madison right now, you live under a rock.
We’re in this situation in part because landlords have too much power and tenants have too little. At the very least, the City of Madison needs to implement some form of dramatic rent control, require landlords to offer more flexibility in lease terms and offer month-to-month options, ban rental application fees, create stiffer requirements for affordable units in new developments, and enact stronger eviction protections. This is a fast-growing city where people are increasingly priced out and spend far too much of their incomes on rent. State preemptions prevent Madison from treating this like the emergency it is.
Don’t go in there—it might be political!
Don’t get squeamish about the politics of this. When it comes to reversing the authoritarian one-party rule that has taken hold of the Wisconsin Supreme Court, a little brusqueness is called for. (If it were up to me, Madison and other cities would just blatantly violate unjust state laws, but I get that simply doing crimes is not a strategy people are comfortable with.)
Worried about the Court taking on a wholly ideological and partisan character? Well, we’re already there, and have been for some time. It would be perverse to let the current state of affairs lie, or make only cautious changes, in the name of returning the Court to some kind of purely legalistic neutrality. Things are so bad that a blatantly homophobic goblin occasionally gets to play the good cop.
Treating the law as a rarified thing robed in intellectual mystery and arcane principle ultimately hurts, rather than helps, the legitimacy of the law and public trust in the courts. Wiping the slate clean would get us closer to a democratic, balanced state government than we’ve been in a long time. So, in the meantime, let’s demand what we want and score as many wins as we can.
Gerrymandering has also undercut the representation of Wisconsin’s more liberal areas in the Legislature, and that undercuts the legitimacy of statewide preemption laws aimed at those very areas. Right now, our local governments’ powers are limited largely by state laws we never had a fair chance to influence through the legislative process or through the blatantly right-wing Wisconsin Supreme Court.
Wisconsin’s local governments need to adopt an aggressive strategy in fighting preemptions. Beyond what’s already on the books, Republicans are still keen on enacting more measures along these lines. Just recently, they’ve proposed new limits on local governments’ authority to regulate energy sources, and a ban on guaranteed-income programs like the one Madison is currently piloting (that’s currently the only such program in the state—again, where exactly is the “statewide concern”?). A 2021 proposal, which eventually died in the state Senate, would have penalized cities that cut funding for police. Like everything else the right has imposed upon Wisconsin this century, it’s part of a broader national strategy to consolidate power.
We need to take back that power for our communities. We need to use it to improve quality of life for the people struggling in our cities. We need to do it all with big goals, a caring vision, and no apologies.
