Have you heard? There is a “coup” underway in Wisconsin. With a Democrat set to retake the statehouse in January, Wisconsin Republicans convened a lame-duck session of the legislature with the intention of passing a series of bills aimed at curbing the new governor’s authority. The measures cover a range of activity: There’s transferring the power of appointments to an economic development board back to the legislature, prohibiting the governor from banning guns in the state Capitol building, and unilaterally withdrawing from state legal challenges to Obamacare without legislative consent. The reaction to these initiatives from the national press has not been mild.
“Republicans in Wisconsin are trying to undo the results of the 2018 election,” wrote CNN’s Chris Cillizza. Vox.com’s Zack Beauchamp accused the Badger State’s GOP of “nullifying” the 2018 vote. “Wisconsin Republicans shield their voters from the horrors of democratic elections,” read a snarky Washington Post headline. Esquire’s predictably apoplectic Charles Pierce called the Wisconsin GOP’s move more evidence that the Republican Party represents “the greatest threat to the American republic since Appomattox.”
Michigan’s Republicans, too, hope to curb the power of the incoming Democratic governor, attorney general, and secretary of state while there is still time. Republicans in these upper midwestern state’s aren’t exactly thwarting the peaceful transfer of power, claimed Slate’s Jamelle Bouie, but such “legislative coup d’états” are “movement in that direction.”
Some have observed that this “power grab” looks a lot like the efforts to curb a Democratic governor’s power that were orchestrated by Republicans in North Carolina two years ago. Then as now, the GOP convened a lame-duck session and sought to reduce the number of appointments the incoming Democratic executive could make.
It’s certainly within the realm of reason to find all this legislative maneuvering distasteful, but it cannot be called unprecedented. As Case Western University Law Professor Jonathan Adler helpfully reminded American political observers in 2016, attempts by partisan legislators to handcuff incoming executives of the other party is practically tradition in North Carolina.
When the governor’s mansion changed hands in 1972, 1984, and 1988, legislative Democrats were behind the effort to rein in the new Republican governor’s appointment power. “This history does not excuse what North Carolina Republicans have done,” Adler correctly noted. But they failed to recognize that the precedents that Tarheel State Republicans were building upon led to an appalling lack of perspective among garment-rending political commentators.
Nor is North Carolina the only state in which Democrats engaged in precisely the same legislative actions they now insist are indistinguishable from a putsch.
Following a state-wide electoral rebellion against New Jersey Governor Jim Florio in 1991, the Democratic Party lost control of both legislative chambers. On the eve of decennial reapportionment and with New Jersey set to lose a congressional seat, that would have left Republicans in control of the consequential federal redistricting process. That simply would not do, and so legislative Democrats spent the lame-duck session ceding legislative redistricting authority to an independent commission.
When Republican Bruce Rauner won an upset victory over Illinois Gov. Pat Quinn, legislative Democrats moved in the lame-duck session to truncate the length of the term to which the governor could appoint a comptroller from four years to two. Democrats, Quinn included, claimed that this actually made the system more democratic, since it put the vacancy to a vote of the public sooner. “I think democracy is always better when the people call the shots, when the people are in charge,” Quinn said. “Not only is the action planned for tomorrow unconstitutional,” House Republican leader Jim Durkin countered, “it’s nothing short of a power grab by the Democratic majority in a lame-duck session.”
Had former Massachusetts Sen. John Kerry been elected to the presidency in 2004, then-Gov. Mitt Romney would have been legally obliged to appoint his replacement to the U.S. Senate, and that replacement would presumably have been a Republican. The Democrats in the state legislature couldn’t have that, so they overrode Romney’s veto to strip his office of senatorial appointment power. But following the death of Sen. Edward Kennedy in 2009, Democratic Gov. Deval Patrick was hamstrung by that very same law. So, Massachusetts Democrats simply repealed it.
Brazen power grabs like those above are fortunately rare, but active lame-duck sessions—particularly those that precede a transfer of legislative control from one party to the next—are not. Suffice it to say that Democrats are not the deferential stewards of transition periods their sympathizers in the press make them out to be.
Democrats in Wisconsin under outgoing Gov. Jim Doyle tried and ultimately failed to negotiate a variety of public-sector contracts over the objections of incoming Gov. Scott Walker in December of 2010. With just hours left in the last lame-duck session of his governorship, Illinois Gov. Quinn sought legislative approval for his controversial pension overhaul bill despite his successor’s opposition. When Chris Christie won the governor’s mansion in 2009, Democrats jammed through legislation to legalize medical marijuana and contemplated bills to legalize same-sex marriage and repeal a variety of tax rebates for property owners—activities the New Jersey Star-Ledger playfully deemed “mischief.” As far back as 1990, the incoming Republican governor of Massachusetts, Bill Weld, was forced to deal with a new sales tax signed into law by lame-duck Gov. Mike Dukakis.
The activities of American office-holders after they have been voted out of office have vexed incoming politicians since at least the “Midnight Judges” appointed by John Adams in March of 1801, much to the consternation of President Thomas Jefferson. It’s rough politics—unsavory and often untoward—but it is not unprecedented, and it is not a usurpation of power. And anyone who would confuse the lawful conduct of republican politics with a “coup” either doesn’t know that they’re enabling ignorance or, worse, doesn’t care.
