{"id":17400,"date":"2012-06-01T15:08:26","date_gmt":"2012-06-01T20:08:26","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=17400"},"modified":"2012-06-01T16:11:23","modified_gmt":"2012-06-01T21:11:23","slug":"tearing-down-fences","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/06\/tearing-down-fences\/","title":{"rendered":"Tearing Down Fences"},"content":{"rendered":"

\"\"G.K. Chesterton<\/a>, the English essayist and Catholic thinker, said the following:<\/p>\n

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.”<\/p>\n

To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”<\/p>\n

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.<\/p><\/blockquote>\n

G.K. Chesterton, \u201cThe Drift From Domesticity,\u201d<\/em> in THE THING (1929).<\/p>\n

It is long past time to stop tearing down fences in Wisconsin. We have reached the point in our State where political partisans routinely ignore the deleterious effect that their actions have on the longstanding traditions and the independent institutions that support democratic self-government. The everyday work of state agencies has become politicized. The\u00a0Legislative Reference Bureau, the Government Accountability Board, the Judicial Commission and the recall process itself have all had their existence questioned and their authority undermined. However, while tearing down these fences, rarely do their critics give any consideration to why these traditions and institutions were created in the first place.<\/p>\n

For example, any objective observer would have to conclude that the Wisconsin Department of Workforce Development has become thoroughly politicized. Among this agency\u2019s jobs is the use of metrics for measuring employment and the publication of these metrics according to a regular timetable. If, after study and deliberation, the agency decided that it would be wise to change the metric that it utilizes, or advantageous to change the timetable for releasing this information, then I would not question the bona fides of such a decision. But the agency made no announcement that a change from established measurements and procedures was under consideration, it engaged in no public information gathering process, and it prepared no public report reflecting the reasons for a change.<\/p>\n

Instead, the citizens of Wisconsin\u00a0seem destined to receive press releases from the agency touting the \u201cgood news\u201d on jobs issued on a seemingly random basis. In the future, will the agency also release negative statistics to the public in such an urgent and breathless fashion, as soon as the numbers are available? It appears highly unlikely. The only conceivable reason why the Department of Workforce Development would treat good news differently than bad news is a political reason.<\/p>\n

This is not the only government agency whose actions have been challenged as politically influenced over the past two years. Many observers questioned the involvement of the Attorney General\u2019s Office <\/a>in efforts to advance the publication of the budget repair bill in March 2011, despite the fact that the matter was the subject of ongoing litigation.\u00a0More recently, questions have been raised about politicization of environmental enforcement actions at the Department of Natural Resources<\/a>.\u00a0It should be noted that questions are not proof, and to my knowledge there is no evidence that any of the officials involved in these examples acted purely out of partisan motives. However, on the other hand, none of these examples stand out as sterling illustrations of independent decision-making on the part of the state officials involved.<\/p>\n

Wisconsin is proud of its longstanding tradition of good government. We expect that those persons who exercise government authority will place the interests of the public ahead of the political fortunes of their party leaders. Public officeholders exercise a public trust, and we expect their official actions to live up to that standard.<\/p>\n

Let\u2019s be clear. Every citizen, including government officials, has the right to be as partisan as they want to be in their private life. Every citizen has the right to vote for whomever they want, to contribute money to whatever cause they want, and to sign any recall petition that they want to sign. You don\u2019t lose the right to be a political animal when you become a public official.<\/p>\n

However, what you cannot do is use the authority of your government office in order to advance your partisan beliefs. This simple distinction, between public actions and the private lives of office holders, is why the politicization of government agencies is wrong while the signing of recall petitions by sitting judges is absolutely proper<\/a>.<\/p>\n

Human nature being what it is, Wisconsin\u2019s tradition of good government would not long endure if we relied solely upon the character of our public officials. Instead, various checks and balances have been built into our State\u2019s political system in order to diminish the ability of any one politician or any one interest group to turn the power of our state government to their own self-interested purposes. Wisconsin has several independent institutions that play an important role in imposing these checks and balances. Unfortunately, over the past two years partisans have reflexively attacked these institutions whenever an exercise of\u00a0independent judgment threatened to impede progress towards the partisans\u2019 desired policy goals.<\/p>\n

For example, for over 100 years, the Legislative Reference Bureau (LRB) has provided professional and unbiased assistance to Wisconsin legislators in the drafting of legislation.\u00a0One of the original motivations <\/a>for the creation of the LRB was the desire to keep legislators from asking lobbyists for assistance in drafting legislation that benefitted the interests of the lobbyist\u2019s clients. To prevent this, the LRB was created in order to offer the legislators an alternative. The LRB provides staff support so that legislators can draft their own bills, and it manages the process of tracking the evolving language as bills become law. After its founding, the LRB became a model for legislatures across the entire country and a tool in the ongoing battle to diminish the influence of lobbyists over the legislative process. The continuing wisdom behind the creation of the LRB is apparent when one considers the troubling influence of ALEC and other corporate-funded groups that even today peddle ready-made bills to legislatures in order to advance the objectives of narrow interest groups.<\/p>\n

In addition, it is obvious that the rules for conducting elections can be manipulated by the party in power in order to assure that party\u2019s entrenchment in office. The Florida Secretary of State\u2019s current effort to purge the voting rolls in that state is a cautionary example of this danger. One way to diminish the risk of this occurrence is to take the oversight of elections out of the hands of political appointees and instead place it under the control of a professionalized and non-partisan agency. In 2007, Wisconsin created the Government Accountability Board <\/a>for this very reason, and the GAB has been held up as a model for other states to follow.<\/p>\n

The Wisconsin Judicial Commission is an independent agency within the judicial branch <\/a>that was created in 1978 to investigate and prosecute violations of the Code of Judicial Conduct. The existence of the Judicial Commission allows the judicial branch to police itself rather than to subject the judiciary to investigations by a prosecutor from the executive branch.\u00a0In order to have an independent judiciary, unafraid to stand up to the executive and legislative branches, it is necessary to protect judges and judicial officers from politically motivated prosecutions.<\/p>\n

Perhaps the most important check on state government under Wisconsin law is the one contained in Article XIII of the Wisconsin State Constitution: the right of recall<\/a>. Regardless of the outcome of next Tuesday\u2019s vote, the recall provisions have served their purpose. Many observers fail to understand that the utility of the recall provision in the State Constitution lies not in the ultimate removal of a state official, but rather as a check to remind elected officials that they ignore the wishes of their constituents at their own risk. It is designed to be a moderating influence that prevents elected officials from moving too far too fast.<\/p>\n

In 1912, Senator Jonathan Bourne, Jr. (R \u2013 Oregon), one of the national leaders in the movement to add recall provisions to state constitutions, described the recall power thusly:<\/p>\n

The recall, to my mind, is rather an admonitory or precautionary measure, the existence of which will prevent the necessity of its use. At rare intervals there may be occasion for exercise of the recall against municipal or county officers, but I believe the fact of its existence will prevent need for its use against the higher officials.<\/p><\/blockquote>\n

\u201cFunctions of the Initiative, Referendum and Recall,\u201d<\/em> in THE INITIATIVE, REFERENDUM AND THE RECALL, Annals of the American Academy of Political and Social Sciences p. 13 (1912)<\/p>\n

It cannot be denied that the recall effort against Governor Walker has already succeeded. The existence of the recall power has already forced the Walker Administration to moderate its policy objectives, and Senator Scott Fitzgerald has admitted as much. Because an office holder cannot survive a recall election by tenaciously clinging to extreme positions, the mere threat of an election leads inevitably to moderation. Even if Governor Walker were to survive the recall election, the fact remains\u00a0that in only two years\u00a0he will have to face the voters again. This will give him pause before he tries to move the State farther to the right than the electorate desires. Those who argue that the recall power should be restricted or eliminated fail to see that it\u00a0has worked exactly as its framers intended.<\/p>\n

All of the foregoing checks and balances exist for a reason. There is an understandable desire on the part of partisans to win the particular policy debate of today, and to support the candidate who is most likely to achieve that result without reservation. But it is reasonable to ask ourselves whether the tactics employed to win these short term battles have undermined Wisconsin\u2019s broader traditions and institutions. I think that they have.<\/p>\n

Or, as G.K. Chesterton said, \u201cPeople do not know what they are doing; because they do not know what they are undoing.\u201d<\/p>\n

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G.K. Chesterton, the English essayist and Catholic thinker, said the following: In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. 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