As Republican lawmakers demanded Monday that the state Department of Health Services (DHS) go through formal rulemaking to implement the state’s new health emergency order restricting public indoor gatherings, Gov. Tony Evers countered with a direct call to the Legislature’s GOP leaders to meet and discuss COVID-19.
“Given it has been 180 days since the Legislature last passed a bill and that you have repeatedly — through costly litigation and your public comments — expressed opposition to nearly every action my administration has taken to prevent the spread of COVID-19, I am eager to ensure our meeting is productive,” Evers wrote in a letter to Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau).
To that end, Evers called on the lawmakers to explain their plan “to respond to the pandemic in the absence of a public health emergency, order requiring masks in public places, or order limiting public gatherings.”
And he challenged Republicans — if they intend, as one lawmaker suggested last week, to come into session after the Nov. 3 election and vote to override the public health emergency — to hold the vote now instead of waiting until then, implying they were trying to avoid paying a political price for their vote.
Emergency rule demand
The three-page letter came less than two hours after the Joint Committee for the Review of Administrative Rules (JCRAR) voted 6-4 along party lines to demand that DHS promulgate last week’s order on gatherings as an emergency rule.
The order, which took effect Oct. 8, limits indoor public gatherings to no more than 25% of the capacity of the space where they take place.
The governor’s legal counsel has asserted that even after the state Supreme Court’s May 13 ruling putting restrictions on public health orders without input from the state Legislature, the power of DHS to limit and regulate public gatherings was unaffected, and therefore will not go through the emergency rule process.
The committee vote followed about 45 minutes of speeches by lawmakers from each party for or against the motion. Republicans asserted the order violated the Supreme Court’s ruling and therefore state law; Democrats rejected that assertion and condemned the GOP majority in the Legislature for failing to meet in the last six months to address the pandemic.
By thwarting the Evers administration’s efforts to contain the virus through the Safer At Home order and later through the mask requirement and now the gatherings order, Republicans “have blood on your hands,” said state Rep. Gary Hebl (D-Sun Prairie).
“We shouldn’t even be here today,” said Sen. Chris Larson (D-Milwaukee). “We should be figuring out what else can be done in a non-partisan way. And the fact that this has become a partisan fight is important.”
JCRAR co-chair Sen. Steve Nass (R-Whitewater) offered a rejoinder moments later.
“I realize the opposition is going to continue to focus on COVID,” Nass said. “And again, that is not why we’re here. We’re here because the department has broken the law.”
The order expires after 30 days, on Nov. 6, or two full incubation cycles for the coronavirus. The JCRAR motion instructing DHS to promulgate an emergency rule sets a 30-day deadline, which would fall after that date.
“So clearly, this is a tactic to delay or just to add more political theater when we could be doing meaningful work,” said state Rep. Lisa Subeck (D-Madison).
Republicans who spoke seemed to have varying objectives.
State Rep. Joan Ballweg (R-Markesan), the other JCRAR co-chair, said the purpose of the lawsuit that Republican leaders brought in the spring, which resulted in the Supreme Court ruling ending the statewide Safer At Home order, was “requesting that the department go through rulemaking so that there can be public hearings, and all the stakeholders and the Legislature can weigh in.”
Then, she continued, “we can come together on a plan — not that there be an edict from either DHS or the executive branch regarding what is the best policy that we should have moving forward.”
But others voiced skepticism of any kind of statewide rule.
“There’s people in Madison, here in government, believe me, there’s not a lot of geniuses,” said state Sen. Duey Stroebel (R-Saukville). “And I don’t have a whole lot of faith that what comes out of this is going to be any better than what the local people who understand their communities strongest throughout the state of Wisconsin, and are much better equipped to deal with the individual intricacies of what goes on in their communities, can be doing.”
After the vote, Nass issued a statement taking credit for “an effort to rein in DHS Secretary-designee Andrea Palm and her rogue state agency.” He declared that the vote “further erodes the ability of DHS to enforce its limits on gatherings under the whims of Evers and Palm.”
The Evers administration has already signaled it would ignore the JCRAR motion and decline to promulgate the gathering order as an emergency rule.
The governor’s ‘asks’
With his letter to Vos and Fitzgerald, Evers amplified Republican protestations that they wanted the governor to work with them while marginalizing the most defiant GOP voices in the Legislature.
Evers indicated in the letter that he had sought a meeting with them in June and been rebuffed, but also that they have had “one-on-one conversations since then, and [I] am glad you have reconsidered and are now interested in having the three of us meet to discuss COVID-19.”
He chided them, as he has several times publicly, for not having offered a plan to address the pandemic, contrary to claims in their April brief to the Supreme Court that they were drafting one.
Evers asked the leaders to withdraw their support for a lawsuit challenging the governor’s ability to file new health emergencies related to the COVID-19 pandemic.
On Monday, St. Croix Circuit Judge R. Michael Waterman denied the plaintiffs a temporary injunction in the lawsuit and ruled that Evers was within his rights to do issue new emergency declarations. The ruling also kept the current mask order intact. (The Wisconsin Institute for Law & Liberty, which represented the Republicans in the case, issued a statement Monday declaring it will pursue an appeal.)
Evers also asked lawmakers to throw their support behind a new round of federal funding for relief from the effects of the pandemic. And he urged them to model the behaviors that public health practitioners have been promoting as the best protections against the spread of the coronavirus responsible for COVID-19: staying home as much as possible, limiting travel and public gatherings, hand-washing, keeping physical distance and wearing masks when among others.
“We need everyone to do their part to help keep our neighbors, our workers, our families, and our communities safe,” Evers wrote. “As elected officials, you can help by leading by example.”
The governor called out, although not by name, Sen. Van Wanggaard (R-Racine) for telling the Milwaukee Journal Sentinel that if the lawsuit against the order fails, Republicans would reconvene the Legislature after the Nov. 3 election to overturn the emergency. “I can tell you that’s what will happen,” the newspaper quoted Wanggaard as saying.
“I certainly hope those comments are not true,” Evers wrote. “First and foremost, in light of the near-exponential increase in cases, rising hospitalization rates across our state, and the beginning of cold and flu season, ending our public health emergency in the midst of a global pandemic would have serious consequences for our state. But moreover, I would likewise hope you are not intentionally delaying such a vote until after the November election.”
If the Republicans “strongly and seriously object to our public health emergency despite our present crisis,” he wrote, they should vote on those convictions now instead of waiting and “allowing sitting legislators to avoid responsibility or accountability for such a vote at the ballot box this November.”
Vos and Fitzgerald had not responded publicly to the letter by Monday evening.