Policy Changes To Look For With Wisconsin's New Democratic Attorney General

Nov 22, 2018

Josh Kaul will become Wisconsin's new attorney general in just more than six weeks, after defeating Republican incumbent Brad Schimel. It'll be the first time in a decade that the justice department will be led by a Democrat. And this likely means changes at the agency.

Kaul will be Wisconsin's chief legal representative and able to decide how to enforce state laws and defend statutes. He'll also choose whether to join national investigations into issues of statewide importance and decide whether to join challenges to federal government policies.

Democrat Kaul is likely to approach those issues from a different perspective than Republican Schimel, according to Paul Nolette, a professor of political science at Marquette University.

“Whenever there’s a partisan change like this, it can actually mean quite a bit of difference in terms of how laws are enforced and what sort of litigation the AG’s offices get into,” he says.

Nolette anticipates one big change from Kaul: He expects Kaul will reverse course on the Affordable Care Act, which is something Republican Gov. Scott Walker has challenged.

"Josh Kaul made this a big part of his campaign, is that he’s going to likely pull out of the litigation that Brad Schimel had co-led, which is a lawsuit that targets the Affordable Care Act and arguing that it is unconstitutional," he says.

Nolette also anticipates a shift in course on a number of other national lawsuits on issues like climate change and air and water pollution. While there may be plenty of ways Kaul can flex his policy muscles on the national stage, Kaul has said he’ll continue to defend state laws even if he disagrees with them. Nolette says that could get tricky on partisan issues like redistricting.

After the 2010 census, Republicans drew new legislative boundaries that gave an advantage to the GOP. Legal challenges ensued, and the issue went to the U.S. Supreme Court in Gill v. Whitford. Justices sent the matter back to the lower courts, where critics of the maps are expected to continue the challenge.

"To what extent and how Kaul defends partisan maps will be very interesting to watch going forward," says Nolette. "Whether he gives that a full-throated defense or whether he criticizes state law — these districts—as being overly partisan.”

Nolette says an attorney general can subtly express the state is not fully on board with a position by deciding which arguments to use, and how to frame them.

But Rick Esenberg of the conservative Wisconsin Institute for Law and Liberty thinks Kaul won't be able to get out of defending the redrawn maps. Because, he says, the law is unclear when it comes to partisan gerrymandering, so a good argument can be made that the maps are constitutional. 

"If for no other reason that the law around partisan gerrymandering is unclear," he says. "And so you can make a good argument that the maps are constitutional. It would seem that if, in fact, you should think that the attorney general should defend laws that he disagrees with, as long as you can make a good-faith effort to defend them, that attorney general-elect Kaul should defend the maps."

Esenberg says not everything Kaul will work on will be so partisan or mark a major shift from the stances Republican Schimel has taken. For instance, issues such as law enforcement policy or treatment responses to the opioid crisis.

“There’s not that many areas that we agree on, but it seems to me that’s one of them," he says. "So, I wouldn’t expect that to change just because now that we’ve got an attorney general from a different political party.”

But Analiese Eicher of the liberal group One Wisconsin Now hopes Kaul does change how the state deals with the opioid crisis. She says Schimel received campaign contributions from opioid manufacturers and refused to join lawsuits against them. Eicher thinks Kaul will do a 180 on the issue.

“This is someone who wants to and will take action in regard to the opioid crisis," she says. "And going after opioid manufacturers in a way that other states led by both Republican and Democratic AGs have done.”

Eicher says her organization also hopes Kaul will do more to protect the environment and to fight predatory lenders.