The Wisconsin Republican Party Doth Protest Too Much, Methinks

March 28, 2011
Guest Post

By Paul M. Secunda, Associate Professor of Law, Marquette University Law School.

When I read last week about the Wisconsin Republican Party asking for the emails of a well-respected University of Wisconsin history professor, William Cronon, I instantaneously knew that the good professor had touched upon something that the Republicans did not want to be common public knowledge. Dr. Cronon had written on his new blog a post that referenced a recent op-ed that he had written in The New York Times about the on-going dispute about the Wisconsin "budget repair" bill and Republican attempts to take away most collective bargaining rights from most public employees in Wisconsin.

In his blog post in particular, Dr. Cronon, like any good academic, had undertaken a meticulous and objective examination of who was responsible for the legislative agenda of Wisconsin Governor Scott Walker and his Republican allies. Based on the fact that similar conservative legislation was percolating in many state legislatures throughout the country, Dr. Cronon surmised that the American Legislative Exchange Council (ALEC) and other conservative advocacy groups had spoon-fed Walker his anti-union legislation. Dr. Cronon did not draw any ultimate conclusions on these matters, but only suggested that other people conduct research to determine what role ALEC and these other conservative clearinghouses had played in the current labor crisis in Wisconsin.

Cronon must have hit pay dirt.

Within a couple days of his blog post, the University of Wisconsin was served with an open records request from the Wisconsin Republican Party that demanded all of Dr. Cronon's university emails that included certain political terms (including Scott Walker, recall, Republican, and collective bargaining) from January 1, 2011 and forward. The not-too-veiled point was to find evidence that Dr. Cronon was politicizing his position as a history professor at Madison and taking part in the recall efforts against Wisconsin Republican Senators and Walker himself for promoting this anti-union legislation.

I want to contend here that the Wisconsin State Republicans should be roundly condemned for abusing the Wisconsin Open Record law for a purpose for which it was not intended. Consider that the law, Wis. Stat. ยงยง19.31-19.39 states: "In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. " In short, the central tenet of the open records law is to promote availability of public access to information to ensure transparency in government; that is, the public should have access to government officials' activities in order to act as an effective check on government power.

Personally, I am all for the promotion of transparent and accountable government. But how exactly does searching the email of a public university history professor serve this purpose? It simply doesn't. The open records law is directed to giving people information about government decision-making. Academics, on the other hand, teach, engage in university and community service, and do scholarship. Indeed, many academics believe it is part of their larger community service to educate the public by talking to press and media to bring light to matters of public import, including by weighing in on issues such as: recent attempts to take away collective bargaining rights of public employees; recent efforts to recall state senators; and important, upcoming state elections involving the Wisconsin Supreme Court. Just because some political groups do not like the content of this research and writing does not mean that professors providing this important function in an open society should be subject to harassment and intimidation.

The Wisconsin Republic Party's open records request for the emails of Dr. Cronon is not about making sure that public university professors do not engage in political activities. Most do and there is generally not a hue and cry over such legitimate activities by liberal or conservative professors. Indeed, and as I teach as a public employment law professor, public university professors have a First Amendment right to comment on matters of public concern.

No less than conservative federal appellate Judge J. Harvie Wilkinson, of the Fourth Circuit Court of Appeals, has observed recently in this regard that although faculty at public universities are certainly state employees, "these particular employees are hired for the very purpose of inquiring into, reflecting upon, and speaking out on matters of public concern. A faculty is employed professionally to test ideas and propose solutions, to deepen knowledge and refresh perspectives. ... In research and writing university professors are not state mouthpieces-they speak mainly for themselves."

Yet, the Wisconsin Republican party is seeking to chill that speech in order to further self-serving political aims. The intent of such requests appear to be nothing less than to suppress efforts to disseminate important information about whether out-of-state conservative organizations are funding legislation being pushed currently by the Wisconsin governor. And make no mistake: the impact of these types of record requests are devastating to public university faculty members who will now feel that they are constrained in sharing valuable information about the government with the larger public since they may be later subjected to wide-ranging political fishing expeditions.

In short, public university professors, like Dr. Cronon, play an essential role in our democracy - they act as part of the vanguard of our citizenry, providing the public with crucial information on matters of public concern. Abusive public record requests like the one served on Dr. Cronon by the Wisconsin Republican party are directly contrary to the reasons for the open record law in the first place. Indeed, rather than promoting transparency and accountability in government, such requests serve to quiet those best suited to inquire into the motives of those who seek to influence the future direction of our society. To quote a recent editorial by The New York Times on this episode, "These [open record] demands not only abuse academic freedom, but make the instigators look like petty and medieval inquisitors."

If there is a silver lining to this whole despicable episode it is that the Wisconsin Republican Party has utterly failed to squelch the important questions that Dr. Cronon raises in his New York Times piece and in his blog post. Instead, there is more interest than ever in how these conservative legislative efforts in Wisconsin are being funded and formulated and why Republicans are so anxious to stifle any discussion about their activities. The irony is simply delicious, and to quote The Times again, all of these Politburo tactics do nothing but "make the Republican Party appear both vengeful and ridiculous."