If Democrat Josh Kaul’s roughly 17,000-vote lead in the attorney general’s race is confirmed, he and Gov.-elect Tony Evers will have wide discretion to take the state’s Justice Department in a new direction.
Some conservatives are already warning about what’s at stake — namely the several high-profile lawsuits the state is involved in, many of which have been spearheaded by the state solicitor general’s office, which Kaul has pledged to downsize.
The former federal prosecutor and son of the late Attorney General Peg Lautenschlager has already vowed during the campaign to withdraw Wisconsin from a multistate lawsuit approved by the current Republican administration that seeks to invalidate the Affordable Care Act.
But for the most part, Kaul has tried to straddle the political divide by supporting the ACA and nonpartisan political maps that would likely limit the state GOP’s electoral advantage in the state Assembly and Senate, while also coming out against any action that could be perceived as undermining the attorney general’s responsibility to defend state law.
Kaul said he would not go so far as to join a lawsuit protecting the ACA, arguing it would appear strange for the state to abruptly reverse course.
“Wisconsin has been on one side of the case, and I don’t think it makes sense for the state of Wisconsin to switch sides mid-case,” Kaul said in a television interview last week.
Attorney General Brad Schimel, who said last week he would decide Monday whether to seek a recount in the race, has defended the suit, claiming the ACA is failing.
But even if Wisconsin is no longer party to the suit, Wisconsinites with pre-existing conditions could still lose coverage if other states succeed in having the health care law struck down. Responding to that possibility, Kaul said he would support legislation to enshrine protections for pre-existing conditions in state law as a backstop to the ACA lawsuit succeeding.
His comments come as Republicans in the state Legislature weigh voting in a likely lame-duck session for a bill that would do just that. Outgoing Gov. Scott Walker reaffirmed his support for the legislation during his first public appearance after his election loss.
Reiterating his campaign trail pronouncements, Kaul said in another television interview last week that he’ll be looking to work with the GOP-controlled Legislature to expand access to substance abuse treatment, preferably by taking federal Medicaid dollars, as well as holding pharmaceutical companies accountable in the country’s opioid crisis.
Similarly, Kaul has vowed to defend the state’s political maps in Wisconsin’s ongoing gerrymandering lawsuit on the basis the attorney general’s responsibility is to defend existing state law.
Still, Kaul’s election has Republicans hedging their bets. A panel of federal judges last week signed off on the GOP-controlled Assembly’s request to become a party in the gerrymandering case, noting the election of Kaul “introduced potential uncertainty” for Wisconsin’s stake. Other observers noted it’s possible Kaul could defend the state’s position in the case less vigorously than Schimel has.
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said he believes Kaul will defend Wisconsin’s political maps, adding attorneys general usually defend statutes unless they are clearly unconstitutional.
Kaul will be the first Democrat to serve in the role since 2007. Esenberg said he hopes Kaul does not limit speech and public participation, or harm businesses that ignore climate change.
“I would hope that he takes the long view and realizes that limiting the administrative state and promoting federalism are not partisan issues,” he wrote in an email to the State Journal.
Some groups wary of change
As attorney general, Kaul has the power to change the state’s position on litigation the state is involved in.
That power has Esenberg and others concerned the state could do so on significant ongoing cases, such as those against Obama-era clean air regulations.
“I would hope that the AG looks at those cases as involving important separation of powers principles and does not support administrative overreach simply because he likes the way it was exercised,” Esenberg said.
Other Democratic attorneys general such as Bob Ferguson of Washington state, have brought lawsuits against President Trump’s administration on several grounds, ranging from its immigrant family separation policy to the Environmental Protection Agency’s handling of its mission.
Kaul was not available for an interview with the State Journal. He has previously said he would do a better job than Schimel at holding polluters accountable.
Meanwhile, unions, hobbled during Walker’s tenure after Act 10 and the enactment of right-to-work legislation, are looking to Kaul to defend working people by ensuring employers uphold wage and hour regulations and proper overtime payments.
“The Wisconsin labor movements hopes to see a Department of Justice under AG-elect Josh Kaul that protects the people, not corporations or campaign donors. A DOJ that protects our worker rights, our collective bargaining rights, our rights in our democracy, and keeps working families safe in our homes, communities, and workplaces,” said Wisconsin AFL-CIO president Stephanie Bloomingdale in a statement.
Kaul will have to work with Evers to oversee the course forward on a slew of ongoing significant cases, including those affecting environmental regulation, and on the state’s position in cases where its exclusion of Medicaid coverage for transgender services is being challenged.
Kaul also will inherit a lawsuit still under appeal challenging Wisconsin’s voter ID laws.
And Kaul will oversee the high-profile appeal being brought by Steven Avery, the Manitowoc County man who spent 18 years in prison for a crime he didn’t commit before being convicted in 2005 of murdering photographer Teresa Halbach. The case has gained international attention as the subject of the Netflix documentary “Making a Murderer,” which has raised questions about whether Avery was framed.
Kaul in a WKOW interview that aired Sunday declined to weigh in on the specifics of that case, but said an attorney general should usually defend the state’s position in criminal appeals.
“If there is a legally defensible position for the AG’s office to take in defending a conviction or defending a sentence, the AG’s office should take that position,” Kaul said.