Assembly Speaker Robin Vos announced that in addition to taking a vote on Thursday to toss out Gov. Tony Evers’ mask mandate, his house would also “fix” what he described as problems caused by a Senate amendment to partisan COVID-response legislation. The bill has been shuttled back and forth between the two Republican-controlled bodies multiple times.
The GOP-controlled Senate and Assembly were stymied in their most recent attempts to reach agreement on COVID response and eliminate the mask mandate after it was discovered that Wisconsin stood to lose $49 million in federal FoodShare support. The money is contingent on having a pandemic emergency order in place. Last week the Senate tried to work around the rule by adding an amendment to allow the governor to issue a public health emergency executive order “solely for the purpose of receiving emergency or other allotments” from the federal government.
Wednesday Vos released a Legislative Council memo that showcased his major concern: Could the Senate’s amendment that was made to allow the state to receive the FoodShare money also end up giving Gov. Tony Evers more power?
It’s hard to keep track of the Republican dysfunction, but tomorrow we are back in session where the majority party will make another attempt to get rid of Wisconsin’s mask mandate while simultaneously stalling on real COVID relief. pic.twitter.com/pfqRegdifE
— Dianne Hesselbein (@RepHesselbein) February 4, 2021
He interprets the answer he got back as a yes.
“As we did our due diligence, legislative attorneys and conservative legal experts confirmed the Senate amendment had unintended consequences and would actually expand the governor’s emergency powers,” Vos said in a statement.
So when Vos reconvenes the Assembly Thursday morning, he will reject a Senate version of a COVID bill for a second time, and send back yet another amended version to the Senate “to correct that error.”
As of Wednesday afternoon, it was not clear how Vos intends to word the amendment so that it preserves the FoodShare funds while not allowing Evers to issue new health orders under an emergency — or if he might have the Legislature take control of the order.
The focus of the memo, say Democrats, shows that Vos is putting questions of ‘power’ before ‘relief.’
“It’s clear, once again, that public health and the public’s best interest does not seem to be the driving force in the decision making,” says Assembly Democratic Leader Gordon Hintz. “Clearly, since Tony Evers was elected in 2018 — from the lame duck laws to the lawsuits to the anemic legislative session — there seems to be this obsession with micromanaging and undermining the Evers administration at every turn.”
The Senate was already setting Evers up for a no-win choice with the amendment Vos now wants to fix. That amendment would have forced Evers to choose between vetoing the bill and with it the language needed to receive food stamp funding — or signing a GOP bill that has no Democratic support because it includes such measures as limiting the power of local health officers, forbidding government or employers from requiring vaccines and giving the Legislature control over future federal pandemic relief funds.
Republicans are putting a lot of work into rewriting the various amendments to a COVID-response bill that contains measures Evers has indicated he opposes. It appears to be a done deal that the Assembly and Senate will end the mask order, despite the opposition of dozens of health care and business organizations. They will be doing it under a resolution that the Legislature enacts that does not require the governor’s signature.
Hintz says Assembly Republicans are trying to “undermine Gov. Evers’ ability to effectively respond to the pandemic” and doing so in a way that will harm Wisconsinites:
“The one thing that’s clear in the position of those that are adamant about repealing the order: They’re not making any decisions that are good for the state, that are good in fighting the pandemic, that are good for businesses or that are good for in-person education,” Hintz said.
Vos previously rejected two COVID bills. One was a bill Evers put together after discussions with Vos and Republican Senate Majority Leader Devin LeMahieu that he said encompassed areas of agreement. Vos also rejected a follow-up compromise bill that LeMahieu and Evers agreed upon in order to have key elements of pandemic relief become law. The Senate passed that version Jan. 12, but Assembly Republicans rewrote it Jan. 26 with another round of partisan amendments, leading Assembly Democrats to once again vote against the bill.
The legal details
The content of the Legislative Council memo lays out the two questions Vos wanted answered. It contains many references to various state statutes and a bit of legalese, but both questions focused on the governor’s authority rather than public health policy.
Steve McCarthy, the Legislative Council senior staff attorney, wrote: “You asked two questions relating to the amendment: Though the amendment limits the purpose for which the Governor may issue an executive order declaring a public health emergency … does the amendment limit any of the powers that the Governor may exercise … during a state of emergency?
And Vos’ second question as McCarthy stated it: “Does the amendment allow the Governor to issue an executive order declaring a state of emergency for the purpose of receiving emergency funds or other allotments from a future act of Congress that requires an active state-declared emergency or disaster for the receipt of funds?”
McCarthy concluded, “As discussed in more detail below, the answer to both questions is no.” He added later that “without limiting language in the amendment,” the governor would retain the power to “issue any order the Governor deems necessary for the security of persons and property while a state of emergency is in effect.”
In response to these findings, Vos decided to kill the Senate amendment. Whatever passes the Assembly on Thursday will return to the Senate for that body to vote to concur.
“The bill and resolution will be sent back to the Senate for that chamber to take up when it meets again in mid-February,” Vos concluded.