Wisconsin’s new Democratic attorney general has used his first four months in office to shift the state Department of Justice to a more liberal footing, pleasing supporters by nullifying his Republican predecessor’s attempts to kill federal health care reforms and limit environmental protections.
Josh Kaul’s moves have Republicans complaining that they can’t trust him to defend GOP-authored laws and regulations. Indeed, the difference between Kaul and former Republican Attorney General Brad Schimel couldn’t be starker.
“Time and again Attorney General Kaul has refused to do his job and instead sided with liberal special interest groups that are aiming to reverse state law,” Republican Senate Majority Leader Scott Fitzgerald said.
Kaul denied that he’s being ideological, but he acknowledged that he and Schimel have “different views of what it is in the best interests of Wisconsinites.”
Schimel emerged as a hardline conservative during his four years in office, joining a multistate lawsuit challenging the Affordable Care Act and penning a legal opinion that a 2011 Republican-authored law bars state agencies from imposing environmental permitting regulations that go beyond what state statutes specifically allow.
The opinion drove the Department of Natural Resources to relax permit requirements for factory farms and high-capacity water wells, sparking anger from liberals and two lawsuits from environmental advocacy group Clean Wisconsin.
Kaul promised on the campaign trail that he would defend state laws if he could make a case for them. At the same time, he vowed to withdraw Wisconsin from the ACA lawsuit and end the state’s opposition to stricter permits in the high-capacity wells case.
He went on to narrowly defeat Schimel in November, but Republicans who control the Legislature moved quickly to kneecap both him and Democratic Gov. Tony Evers, convening a lame-duck session weeks before the two took office and weakening their powers. One of the lame-duck laws prevented the Kaul and Evers from withdrawing the state from lawsuits, which stopped them from fulfilling their campaign promises to get Wisconsin out of the Affordable Care Act challenge.
After a judge ruled that the law violated the separation of powers between the executive and legislative branches, though, Evers directed Kaul to withdraw from the lawsuit and he complied. An appeal of that ruling is pending before the conservative-controlled Wisconsin Supreme Court, but Kaul has seized the opening and moved to withdraw Wisconsin from other lawsuits, too.
He has dropped the state’s appeal of a 7th Circuit U.S. Court of Appeals decision declaring that federal law blocks provisions in Wisconsin’s “right-to-work” law, which prohibits companies and unions from signing contracts that would require workers to pay dues or fees to the unions that represent them. Schimel had asked the U.S. Supreme Court to take the case.
Kaul also has withdrawn Wisconsin from a multistate lawsuit challenging a U.S. Environmental Protection Agency cost-benefit analysis that found that regulating air pollutants, including mercury, would be reasonable because the costs of implementing new control technology wouldn’t raise retail electricity costs beyond historical ranges.
He also has joined a multistate lawsuit seeking to block Trump administration rules barring taxpayer-funded family planning clinics from referring patients to abortion providers. And this month, Kaul changed the Wisconsin DOJ’s stance in the factory farms and high-capacity wells cases, switching from defending Schimel’s opinion to aligning with Clean Wisconsin. He also pulled Wisconsin out of another multistate lawsuit alleging that the EPA is interpreting the Clean Waters Act too strictly.
Rick Esenberg, the president of the Wisconsin Institute for Law and Liberty, a conservative law firm, said Kaul’s actions threaten to further politicize the attorney general’s office.
“Sure, it’s a partisan office. But we’re also electing a lawyer for the state of Wisconsin,” Esenberg said. “It doesn’t mean he should do whatever he wants according to his (political stance). I don’t want to call him disingenuous. I think what he said (during the campaign) was the right thing to say and that is now what he should do.”
Attorney Lester Pines, who often handles cases on behalf of Democratic lawmakers, said Schimel and his predecessor, Republican J.B. Van Hollen, spent 12 years advancing a right-wing agenda.
“The people of Wisconsin elected an attorney general to once again represent the public’s interest,” Pines said. “That is what Attorney General Kaul is doing. It’s about time.”
Kaul defended his actions, saying in an interview that he has stuck to the parameters for defending state law that he laid out during his campaign: If there’s a strong legal argument supporting the law, he will fight for it in court. He pointed out that he is defending Republican-drawn legislative boundaries in a federal lawsuit.
Otherwise, his decisions are based on whether the law or policy in question hurts Wisconsin residents, he said. For example, he said, striking down the ACA would end coverage for people with pre-existing conditions and young adults currently on their parents’ insurance, the EPA challenges would hurt the environment if they’re successful and Trump’s abortion restrictions would reduce access to health care.
“My approach has been that Wisconsin should be involved if the law or policy is harmful to the interests of the state of Wisconsin and Wisconsinites, and if there’s a strong legal basis for the challenge,” Kaul said. “And that is the approach we’ve applied both in deciding what to challenge and where to withdraw from challenges.”