CMD Pushes Back Against Attorney General’s Attack on Open Records in ALEC Lawsuit


CONTACT: Brendan Fischer,

J.B. Van Hollen and Leah VukmirMADISON -- On October 1, the Center for Media and Democracy (CMD) filed a brief countering claims by Attorney General J.B. Van Hollen and Senator Leah Vukmir that legislators cannot be held accountable for violating the open records law during their entire term in office. The government's position is not supported by a careful analysis of the Wisconsin Constitution and its historical context. It is also a rash reversal of how the Attorney General's office has always construed the limits of legislative privilege.

In its brief, CMD argues that the claims of Senator Vukmir through the Attorney General -- that the Wisconsin Constitution's legislative privilege applies to the never-ending biennial session, rather than floor sessions -- would do enormous damage to Wisconsin's longstanding traditions of openness, transparency, and governmental accountability. Because the next biennial "session" begins immediately upon the close of the previous one, under Van Hollen's novel interpretation, a legislator would have a perpetual grant of immunity from civil actions seeking to enforce the state's public records law -- or, for that matter, any state law with civil penalties.

Van Hollen made this unprecedented claim of legislative immunity to block a suit CMD had filed against Sen. Vukmir for public records pertaining to the American Legislative Exchange Council (ALEC).

"The Attorney General's distortion of the Constitution's temporary legislative privilege to aid ALEC would not only prevent citizens from holding legislators accountable for violating the open records law, it would also make legislators above the law for a variety of offenses, for as long as a legislator holds office," said CMD's General Counsel Brendan Fischer. "A corrupt legislator who promises political favors in exchange for campaign contributions, for example, would get a free pass, and would not be subject to the law's civil penalties. A legislator who wanted to avoid divorce proceedings could sidestep service of process. This is not what the people of Wisconsin ever intended, in our Constitution or our open records laws."

In its brief, CMD demonstrates that the framers of the Constitution clearly intended that the legislative privilege in Art. IV, Section 15 only apply temporarily, and understood the phrase "session of the legislature" to apply only to those periods where the legislature was actually meeting. For the first hundred-plus years that Wisconsin was a state, legislative sessions lasted only months at a time. It is only in recent decades that the legislature has adopted the calendaring practice of a "biennial session."

"A mere change in how the legislature sets its calendar does not amount to a constitutional amendment, and cannot change a temporary privilege into a perpetual immunity," Fischer says.

Prior to filing the motion on Senator Vukmir's behalf in this case, the Wisconsin Attorney General's office had interpreted the constitutional privilege to apply only when the legislature is actively conducting its work during scheduled floor periods, rather than during the entirety of the never-ending biennial legislative session. In 2002, the Attorney General specifically argued that Section 15 was limited to scheduled floor periods. State v. Burke, 258 Wis.2d 832, 841 n.2 (Ct. App. 2002).

In June, CMD filed suit against Senator Vukmir, ALEC's national Treasurer, who made the preposterous claim that despite attending ALEC's meeting in Oklahoma, sponsoring a bill at that meeting, and serving on ALEC's national board, she has no records pertaining to ALEC anywhere in her office (besides a few emails showing she attended the multi-day meeting). This claim is particularly suspicious given that ALEC has been stamping its materials with a "disclaimer" asserting that its documents are not subject to any state's open records law, and has been using an internet dropbox to secretly communicate with legislators.

Read CMD's October 1 brief here.


The author listed as "PRwatch Editors" is for reports attributable to CMD's editors or guest authors.