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The rot runs deeper
What the actions of an obscure Wisconsin political appointee tell us about GOP democratic backsliding
The January 6th hearings have illustrated the deep threats to American democracy such that only the most die-hard Trumpists can deny them. One categorical error we cannot make is assuming the threats to democracy are purely, or even primarily, a reflection of Trump’s authoritarian tendencies. The more disturbing reality is that the instinct to subvert democratic outcomes runs much deeper in the Republican Party. While it got fewer headlines than the January 6th hearings, the outcome of a dispute over an obscure political appointment in Wisconsin is no less revealing, offering in microcosm, a deeper understanding of the maladies we face.
The Trump version of democratic backsliding is marred by its obvious falsehoods about the election, and the turn to violence. But these features represented the last desperate aspects of an attempted coup which had first sought more respectable processes: asking the courts to invalidate an election, engaging state legislatures, and using lawyers to develop novel interpretations of how electoral votes should be counted. Even now, Trump supporters are taking over key positions that oversee elections to prepare for the next putsch.
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Trump understands that democratic backsliding in America will only be accepted if it is formal. In America, you can succeed in overturning elections if people in legislatures and courts bless your actions. This deeper truth of formalized democratic backsliding is something he has learned from more mainstream Republicans, who have been putting into practice over the last decade. If there is a post-Trump version of democracy in America, Republicans will continue to apply these tools.
The Prehn case
The Prehn case in Wisconsin offers a telling data-point about democratic erosion in the states, where gerrymandered state legislatures can effectively maintain their policy control of the executive even when they lose the only elections they have not rigged.
The facts are relatively straightforward: Frederick Prehn was appointed by Scott Walker to the state’s Natural Resources Board. His term expired in May of 2021. He refused to step down. Prehn argued, and the Wisconsin state supreme court agreed, that he was allowed to stay in place until a new appointee was named by the Governor, and approved by the Senate.
The realpolitik of the situation is less straightforward. Republicans in the state legislature do not believe that the Democratic Governor, Tony Evers, should have the power to appoint officials, a power that all of his predecessors held. They have operated on this belief by refusing to schedule hearings, or holding hearings when they determined that they wanted to fire the acting Cabinet officials. For example, after a mainstream nominee for the Secretary of Agriculture, Trade and Consumer Protection criticized the legislature for not providing enough funding to address farm suicides, the Senate convened a hearing, and voted him down.
The message was clear: regardless of the fact that their gubernatorial candidate lost, the Republican legislature had decided their party would continue to run the executive branch.
This extremism was surprising in its novelty, if not its intent. As soon as Republican Scott Walker lost the 2018 election, the legislature used a lame-duck session to remove from the new Democratic Governor and Attorney General many of their traditional powers. For example, Evers was restricted from determining how Medicaid could be implemented, even though Medicaid expansion was a signature campaign issue that helped get him elected. Walker signed these laws, and the conservative-leaning supreme court blessed them. All of this occurred in the aftermath of an election where gerrymandering meant that Democratic candidates had won considerably more votes than Republicans for the state legislature, but gerrymandering allowed Republicans to control 63 of 99 state Assembly seats.
The state supreme court and legislature also largely cut Evers out of the process of redistricting. Despite Evers victory, they decided that the extreme gerrymander that has corrupted every part of Wisconsin politics will remain in place.
With the Prehn case, the Governor nominated a replacement, but the Senate refuses to hold a hearing. And so Prehn stays in place. Just months before the end of Evers four-year term he has been effectively stymied from imprinting his policy preferences in the area of natural resources, which have remained in Republican control. Prehn has been crucial in advancing a series of environmental decisions that ignored state scientists, such as allowing higher than recommended levels of chemicals in the state’s groundwater.
The state court’s refusal to acknowledge the deliberate subversion by the legislature has broader implications. As the New York Times reports:
A similar move by the Senate has allowed Republicans who refused to resign to remain on the board that oversees the state’s 16 public technical colleges, which enroll 250,000 students annually. The Senate also has refused to confirm Mr. Evers’s appointees to the Board of Regents that governs the public university system. He appointed regents to replace ones who resigned when their terms expired. But the Senate could remove them should a Republican win the governor’s race in November.
If a Republican wins in November, the Governor will be granted the right to pick political appointees again. If Evers wins, the state supreme court has ensured that the Governor will no longer hold such basic executive powers.
In the Wisconsin competitive authoritarian state the gerrymandered legislature and the supreme court are unwilling to accept the risk that the voters might disagree with them. And so they have established a political system where it’s heads I win, tails you lose.
Lesson 1: It’s not just Trump driving democratic backsliding
There is a version of the Trump approach to democracy in Wisconsin. The fake Wisconsin election audit has surpassed Arizona as the most bizarre and conspiracy-driven in the country. Republican candidates for Governor refuse to accept that Biden won the last election. These actors are prepared to engage in undemocratic actions to prevent a close presidential election where voters in their swing state did not deliver the “right” results.
While we should be appropriately concerned about Trumpian threats to democracy, it is entirely possible to imagine a version of Wisconsin history where even if Trump had never decided to run, the decision to keep Prehn in power, and other forms of democratic backsliding in the state, would have proceeded apace. The erosion of democracy in Wisconsin well began before Trump, led by Republicans who initially opposed Trump.
Lesson 2: It’s not just a few bad apples: it is an entire political party, which extends to the courts
The other striking element of the Prehn case is the level of coordination it took. A political appointee, a former Governor, a state legislature, and a state supreme court worked together to enable this to happen. The state legislature had to refuse to allow the Governor to nominate someone. The appointee needed that formal excuse to stay in place. The state legislature then had to approve spending tax dollars in order to hire lawyers to defend their anti-democratic stance, which they did. And the state supreme court needed this fiction of an unfilled vacancy to allow Prehn, and their party, to retain control of a policy domain even when they lost the election. Look closer and you see a deeply connected network. The nominal swing vote on the court, Brian Hagedorn, also was once a political appointee of former Governor Walker.
Lesson 3: The defiance of democratic outcomes is explicit
Public records have shown Prehn reaching out to Scott Walker, as well to other key lawmakers and lobbyists, including the Senate Majority Leader Devin LeMahieu. They reveal not just the coordination discussed above, but the explicit indifference to democracy.
Emailing Walker, Prehn acknowledges
that he would not be reappointed by the new Governor: the chance of Evers reappointing me are slim to none
that the policies will change if he leaves: The change in priorities with the NRB is becoming staggering in the last 6 to 10 months. Maybe they realize they've only got a couple of years
he is coordinating with legislators to ensure he cannot be replaced: I heard from legislators they do not intend on confirming anybody soon…If I stay on, your appointees [will] hold majority for a while longer.
what he is doing is ethically questionable: I'm wondering if you think it's improper for me to stay on until somebody's confirmed…is it really the proper thing to do?
“If possible, stay on," Walker responded the same day. "Any voices that can counter their racial view of the world are good."1
In other words, Prehn accepts that what he is doing runs contrary to how elections are supposed to work — a new Governor picks appointees to reflect different policies from his predecessors — but he went ahead with Walker’s blessing.
It’s not the only case where Republican’s drop the formalistic excuses and are explicit about their indifference to democratic outcomes. In responding to the Prehn case, the Senate leader LeMahieu said: “If Tony Evers had all his appointees, all his emergency orders and all his budgets there is no doubt the State of Wisconsin would be much worse off than we are.”
This is an unremarkable political opinion. What is dangerous for democracy is that Senator LeMahieu does not feel that voters should be trusted to agree with him. He, and the broader state Republican apparatus, made this case to the voters, and lost in an election where their gerrymandering had not determined the outcome.
And when they lost, they decided to ignore the outcome of the election.
Whatever else you call this, it is not a democracy.
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Presumably Walker meant “radical” not “racial” here, but who knows how his thinking or autocorrect function.