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Lautenschlager files civil suit

State Attorney General Peg Lautenschlager filed a civil complaint in Dane County Circuit Court last week alleging two state legislators violated open records law by refusing to release a legislative draft.

State Rep. Scott Gunderson, R-Waterford, and state Sen. David Zien, R-Eau Claire, were listed as defendants in the case, which alleges they broke the law in regard to their "concealed carry" bill. If passed, the legislation would permit citizens to carry concealed guns.

Lautenschlager entered the complaint after Zien and Gunderson refused a request from the attorney general's office for a draft of the legislation. According to Lautenschlager, once legislators disclose bill drafts to non-legislative parties, the public should have access to the bill draft as well.

Gunderson allowed a lobbyist from the National Rifle Association to view a draft of the bill but will not allow Department of Justice attorneys to view it, the attorney general said.

"Wisconsin citizens have the right to know what legislation is being considered by the state Legislature — that's not a privilege reserved for the gun lobby," Lautenschlager said in a release.

The legislators argue they are not required to release the draft under the state's open-records law, citing an exception for drafts in the statute.

State Rep. Spencer Black, D-Madison, said he supports Lautenschlager's cause.

"I think the impact would be very positive," Black said. "The public would have access to the same information as lobbyists and special interests groups."

Legislators would still be able to confer with staff and legislative attorneys about bill drafts without having to disclose the content of the bills to the public, however.

Black said the state of Wisconsin has strong open record laws that need to be upheld, adding Lautenschlager has had a good track record with previous open records cases.

"I think chances are good the suit will go in favor of Lautenschlager," Black said, adding she has been aggressive in enforcing state open records laws. "She would not have filed the suit if she didn't know it was on sound legal ground."

However, John Hogan, Zien's chief of staff, said if the court were to side with Lautenschlager, it would create problems for legislators penning bills.

"If the process were changed, it would be difficult, if not impossible, for a legislator to write a bill if he or she had to be an expert in that field," Hogan said. "We sometimes rely on experts from the public to help us draft legislation that we plan to introduce to the Legislature."

Howard Schweber, a professor of political science at the University of Wisconsin, said Lautenschlager's case is reminiscent of occurrences in Congress.

"During the Bush Administration, lobbyists and special interest groups have taken increasingly prominent roles in advising and drafting of legislation," Schweber said. "As a result, the participation of private interested actors in discussion of policy issues has moved from being a matter of advice and input to being a matter of exercising governmental function."

If Lautenschlager is correct in her claim that this is happening in Wisconsin as well, her argument is valid, he said.

"Where private actors exercise governmental functions they should be subject to the same disclosure requirements that apply to government officials," Schweber said.