River News: Our View

There is a simple yet durable rule in physics that systems tend to veer toward entropy unless external energy is applied. 

That is, in the universe, disorder is the default setting. Turns out, governments within social systems behave the same way, just substitute ‘accountability’ for ‘energy.’ Left to its own devices, government slides unchecked and unobserved toward opacity and aggressive self-protection. It attempts to impose order on those outside its walls, but lives itself in inertia and darkness.

In Wisconsin, the state legislature hasn’t just drifted into darkness; it has engineered it. Lawmakers convene proudly in Madison both to write laws for others and to work assiduously to avoid those laws themselves.

To cite just one example, the legislature is not bound by the same open government laws it imposes on everyone else. While state agencies and local governments must retain records for specific periods of time — most often for seven years under the public records retention statute — lawmakers have carved out an exemption for themselves. 

Ask lawmakers if they are bound by the open records law, and they will answer truthfully that they are. The trick is that they are not bound by the open records retention law. Legislators can destroy those records at will if there is no pending open records request — emails, communications, draft policies. If an open records request comes in afterward, the answer is legally sufficient and democratically absurd: I don’t have anything to give you because I legally shredded it last night.

We uncovered this loophole more than a decade ago, which became known as the “Holperin Hole.” The newspaper requested emails between then state Sen. Jim Holperin and a top DNR official. The DNR produced them, but the senator did not, because he had already deleted them.

Like Schrödinger’s cat, the records existed but didn’t. It was case closed, or rather, case vanished.

Even at the time, state officials acknowledged that transparency depends on records existing in the first place. That insight should not be controversial. It is as close to axiomatic as government can get: If there are no public records, there is no public accountability.

And there is no public trust, either.

Always, lawmakers promise change. They tell us how open their own office is, how absolutely committed to open government they are, and that the real problem is the guy or gal next door. They’ll make sure things change, just you wait and see.

Then they go out and try to gut the entire open records law, as the GOP tried to do in 2015 before backing down in the face of a severe public backlash. After that fiasco, legislative leaders promised reform in a spirit of contrition. They promised to write legislation and to hold hearings. They never did.

The pattern was unmistakable. Public pressure produces rhetorical movement; rhetorical movement produces … nothing. The system absorbs the shock and returns to its equilibrium of inertia and secrecy. The legislature withdraws into its dark recesses until its own conniving provokes yet another chaotic moment of instability, and the cycle is repeated.

And that’s just the technicalities of the open records law. The legislature doesn’t even pretend it’s covered by the open meetings law.

Every once in a while, there are watershed moments, and we have had one of those just in the past few months, when the lights literally went out on government — the shutdown of WisconsinEye, one of the few places where we can look somewhat into the workings of state government.

In today’s Sunshine Week edition, we chronicle that sad reality, which is still hanging over our heads, but even WisconsinEye’s temporary shuttering reminded us once again what the legislature is really like when no one is watching.

Right away, some lawmakers opined that WisconsinEye wasn’t really needed and absurdly suggested that maybe it was the network that wasn’t transparent. We just need better reporting by the legacy media, several lawmakers said. Once everyone stopped laughing, the legislature got serious about saving our big hope for transparency … by doing nothing.

The Assembly passed a bill; the Senate, another; then everybody went home without reconciling the two.

In the meantime, while everyone was posturing, things moved from ironic to surreal. Not only was WisconsinEye chop-blocked but GOP legislative leaders had suddenly discovered old rules that prohibited members of the public, including other lawmakers, from videoing most legislative sessions.

They decided to enforce old recording restrictions never before enforced at the precise moment when independent coverage had disappeared. It was like watching someone remove a car’s headlights and then dim the streetlights for good measure.

How’s that for transparency?

To be sure, the legislature’s exemption from the open meetings law is the loophole that could, in the first place, lead to a rule against public recording of open legislative sessions, because, by law, under the open meetings statute, the public can record any public meeting covered by the law.

So, by exempting themselves, the Legislature could effectively write its own transparency rules and override the state’s broader commitment to open government when convenient.

It turned out to be very convenient after WisconsinEye went off the air.

There is a tendency, especially in political debate, to treat transparency as a virtue, not a policy. The problem is, virtues are often seen as amorphous personal standards that one aims to aspire to, not specific goals or rules. In politics, transparency becomes a morally commendable stance that every candidate slaps on a bumper sticker and forgets about. This is true on the federal, state, and local levels.

But transparency is a necessary infrastructure for accountable, democratic government. You might forego the high-end kitchen lighting when you build your house, but you cannot skip the electrical wiring in the walls, and that’s exactly what transparency is in the house of open government.

The answer in the state right now is two-fold.

We must, one way or another, keep WisconsinEye operational. The left and right agree on this, and so it should be accomplished, but once again the legislature has failed — in its catastrophic inertia — to act. This tells us quite a lot about the actual state of affairs in our state, namely that the real divide is not so much between right and left as between those who wield power and those who don’t.

The second takeaway is that the legislature must abide by the open meetings and open records laws, and we must not punt that ball down the field for years. There must be mandatory retention requirements and full adherence to the open meetings law, without carve-outs that allow internal rules to override public access.

And that means public recordings and the broadcasting of meetings. In the 21st century, observation without recording is a half-measure at best and a fiction at worst. A meeting that cannot be recorded does not exist, functionally. It is, yes, Schrödinger's meeting — visible to those in the room, unverifiable to everyone else.

Every other level of government in Wisconsin operates under the open meetings laws. County boards and school boards, state agencies and city councils and town boards — they all manage. So can the legislature, and the only way people can ensure that it does is by voting for candidates who will pledge to do so when elected.

In the end, WisconsinEye should be saved, but let’s be clear. Even a fully funded WisconsinEye is not a substitute for structural transparency. Its cameras are valuable but they only show us what’s happening on the steps of a decorated facade, not the nitty gritty gurgling in the pipes.

The law must allow us access to that, and only the voters can elect lawmakers who will follow through. 

Because a government that can choose when it is seen is not accountable, and a democracy that cannot see itself clearly will, sooner rather than later, lose its way.

It defaults to disorder, which appears these days to be the Wisconsin Way.