Saturday, September 5, 2009

The Tyranny of the Wisconsin Secretary of State (?)

Randy Melchert is someone we typically don't see eye-to-eye with, but we have to give him credit for making a strong case that the Wisconsin Secretary of State is, at best, an archaic, nebulous and unnecessary position that probably should be eliminated. We agree with him, but the more we looked into just what the SoS does, the more we started to realize that the SoS isn't a superfluous office, but is potentially one of the most important and powerful offices in Wisconsin precisely because it's parameters are so nebulous.

To understand this, we need to first look at the job of a notary. Notaries public are the law's way of preempting any challenge to a legal document's legitimacy. Armed with those nifty embossing stamps, notaries are America's authenticators.

Now notaries are supposed to be dispassionate observers. Their job is to witness an act and authenticate said act. It's not their job to judge the virtue of that act. For example, Bill is divorcing his wife and needs the divorce papers notarized before the divorce is final. He goes to Steve the Notary and signs the papers in his presence. Steve witnesses it, authenticates it, does his thing with the stamp and ... voila, Bill is now back on the prowl. It doesn't matter what Steve thinks of Bill's divorce -- all the notary has to worry about is authenticating the signature.

But what if a notary did care about the divorce? What if Steve refuses to authenticate the divorce papers because he thinks Bill and his wife would be better served if they just went to counseling? The practical solution to this problem is that Bill just goes to another notary and since there are thousands of them it's not exactly a chore to find a more amenable verifier, just an inconvenience.

But what if there were only one notary? It's kind of an odd thought since notaries are a dime a dozen, but that's exactly the position the state government finds itself in with respect to legislation. State governments need to have their legal documents authenticated just like everyone else, after all.

The Secretary of State is essentially a notary public, except he has one client: the state of Wisconsin. That's what is meant by the phrase "to keep the Great Seal of the State of Wisconsin and affix it to all official acts of the Governor" in the SoS's job description. The SoS is the Governor's independent authenticator. Affixing the state seal is the law-making equivalent of a notary stamping a legal document. The SoS also has another important job: "Wisconsin's Constitution requires the Secretary of State to maintain the official acts of the Legislature and Governor."

This explains why the SoS needs to be directly elected by the people of Wisconsin. SoS can't be appointed by the Governor because then the SoS would no longer be "independent." (In principle, at least. SoS have been appointed in the past to finished terms left by deceased office holders.) Likewise, the Lieutenant Governor can't do the job as things currently stand because the LG runs on the same ticket as the Gov.

Think of the SoS as the quality control expert of the legislative process: he's the guy voters hire to say, "Yup, that all happened the way it was supposed to" at the end of the law-making process. If laws were jackets made by the Gap, the Secretary of State would be Inspected By 23.

But what would happen if, like Steve the Notary from earlier, the SoS decided not to affix the seal of the state of Wisconsin to an act of the Governor? What if an "activist Secretary of State" objected to a piece of legislation and decided not to validate by either affixing the seal (i.e. "notarizing" it) or publish and "maintain" the official acts of the legislature?

Then what?

The only thing that anyone can seem to say with certainty about such a hypothetical situation is that no one knows.

There's no precedent. It simply hasn't happened before, but such a scenario does pose some interesting paradoxes.

First, what can the Governor do? Not much. Because SoS is an independently elected office, the Gov. can't fire him. Furthermore, any executive orders to reign in the SoS would need to be authenticated by the SoS for them to become legal, and there's likely little chance that an SoS would authenticate something that would screw him or her.

Could the legislature impeach the SoS? Possibly, but in order for an act of the legislature to become official it needs to be published by ... the SoS (!), so there's some question as to the authority such an act would carry.

The most likely solution to the problem would be a lawsuit -- filed by the Governor, the legislature, the Attorney General or possibly even a sympathetic third party advocacy group -- seeking a court-ordered injunction forcing the SoS to authenticate the neglected document and/or appointing someone who would do so in the event of further SoS intransigence. Even this wouldn't be much of a "solution," because the legal proceedings would invariably be cluttered by the political motivations of the opponents and proponents of whatever act the SoS refused to validate.

In other words, the SoS has what could be referred to as an "Existential Veto." If SoS doesn't like a bill, SoS could simply refuse to acknowledge that it exists and thereby can not be authenticated. But, instead of the bill going back to the legislature for a potential over-ride, the entire law-making machinery of the state grinds to a screeching halt.

So what's stopping Doug LaFollette or any other SoS, for that matter from wielding this power? Common sense, for one thing, and politics for another -- the SoS does have to get re-elected, after all. But for the sake of argument, lets remove both of those variables from the equation and consider the following hypothetical: an anti-tax advocate wins election to become the next Secretary of State by promising not to authenticate any legislation that includes a tax or fee increase. Would that newly elected SoS have any ground to stand on?

No one knows. That part of Wisconsin government has yet to be beta-tested. There is no precedent in Wisconsin law to say either way, or so I'm told. There may be, however, precedent in other state's. Earlier this year the Minnesota SoS refused to certify Al Franken's election to the U.S. Senate until the legal questions surround his election were reconciled by the courts. This came on the heals of the Illinois SoS refusing to certify the appointment of Roland Burris to the Senate in the wake of the Blagojevich "pay to play" scandal. In both cases, Secretaries of State delayed or refused to make authentications for political reasons -- the overarching question posed by this post is what if those actions were taken to their evolutionary extremes?

So is it really that simple? Does the Wisconsin Secretary of State hang over the legislative process like the sword of Damocles or is all of this merely a precis for a thesis at the Glenn Beck Institute of Art Criticism & Appreciation? Frankly, we don't know, we sure hope this is simply a thought experiment that took a wrong turn and ended up in Crazytown -- and if there's something missing from this train of thought, please, for the love of God, let us know.

There is, however, one thing we can say with certainty: should a SoS ever withhold authentication of legislation to satisfy his or her own personal agenda, it would result in scorched Earth campaign against the office and office holder. The individual would assuredly never get re-elected and the Governor and legislature would team up to end the office altogether. First, all responsibilities would be outsourced to other departments while funding and staff are eliminated from the budget. Then an amendment ridding the state constitution of the office would be drafted and passed and brought to the voters for approval. The problem is that this takes a minimum of six years -- think of how much gridlock a rogue SoS could create if he or she managed to hang on to their office for the four years of their term?

Let's put it another way: if, in fact, all of the above is actually a prerogative of the SoS, then the only thing seperating Wisconsin government from an outright legislative clusterfuck is the temperament of the SoS. That's not exactly what I would call a trustworthy check on power.


Randy Melchert said...

Thanks for the HT on the issue...

My opinion would be that it would be a quick lawsuit right to the Wisconsin Supreme Court and you'd have an order to seal the legislation or find yourself in contempt :-)... Which would raise another issue - a Secretary of State in jail refusing to seal... :-)

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