As legislative leaders secretly developed new election maps last year to strengthen their majority, Republican lawmakers were told to ignore public comments and instead focus on what was said in private strategy sessions, according to a GOP memo that became public Monday.
Other newly released documents also show almost all Republican lawmakers signed legal agreements promising not to discuss the new maps while they were being developed.
GOP lawmakers fought releasing these new documents and testifying about the maps in a pending court case but relented after a panel of three federal judges based in Milwaukee last month found they had filed frivolous motions in trying to shield the information from the public.
Included in the documents released Monday was a set of talking points that stressed that those who discussed the maps could eventually be called as a witness in a court case.
"Public comments on this map may be different than what you hear in this room. Ignore the public comments," the talking points also say.
Every 10 years, states must draw new legislative and congressional maps to account for population changes recorded by the U.S. Census Bureau. In Wisconsin, courts have largely drawn the maps in past decades because of partisan gridlock, but Republicans were able to approve maps that benefited them last year because they controlled state government.
Even before the maps were unveiled, a group of Democratic residents sued over the issue in federal court in Milwaukee. The case goes before the three-judge panel Feb. 21 to hear the group's arguments that the maps violate the U.S. Constitution and federal Voting Rights Act because of the way they treat minority communities and move voters from one district to another.
An immigrant rights group contends that Republicans violated the state's open meetings law in how they developed the maps and filed a complaint Monday with Dane County District Attorney Ismael Ozanne.
Legislative leaders sometimes ask rank-and-file legislators to keep quiet about sensitive legislation, but they do not ask them to sign pledges of secrecy.
The agreement tells each lawmaker "you agree not to disclose the fact and/or contents of such discussions or any draft documents within your possession."
All the agreements were also signed by Eric McLeod of Michael Best & Friedrich, one of several attorneys who advised lawmakers on the maps. Legislative leaders have committed $400,000 in taxpayer money to pay Michael Best and the Troupis Law Office for their work on the maps.
McLeod has drawn attention in recent months for providing legal services to state Supreme Court Justice Michael Gableman under an arrangement in which Gableman did not have to pay.
Republicans and Michael Best turned over the legislative maps and talking points in response to a federal court order. Based on those documents, the immigrant rights group Voces de la Frontera asked McLeod to turn over the confidentiality agreements with 75 Republicans, something he did last week.
Senate Majority Leader Scott Fitzgerald (R-Juneau) and Assembly Speaker Jeff Fitzgerald (R-Horicon), the brothers who hold the top two spots in the Legislature, declined to comment through aides on Monday because of the pending litigation.
Electronic records say the talking points were created by "afoltz," an apparent reference to Adam Foltz, a legislative aide to Jeff Fitzgerald who helped draft the maps. It was created June 20 and last saved July 7 - the weeks just before the new maps were introduced as legislation.
In a deposition Wednesday, Foltz said he probably helped write the talking points but did not specifically remember doing so.
He said he couldn't remember why the document was created or to whom it was given. When asked what was meant by the suggestion in the document to "ignore the public comments," Foltz said he believed it referred to the public at large, rather than comments leaders made to the public.
"I would assume the general public. I honestly don't know exactly what it's referring to there," Foltz said.
But Voces attorney Peter Earle said it was clear from the case's record that GOP lawmakers were being told to ignore what their leaders were saying publicly and to focus on what they said in private.
The new batch of records also includes memos from Foltz to Republican lawmakers telling them how GOP candidates performed in their districts under the new and old maps. In a deposition in December, Foltz testified the new maps were not meant to increase the GOP majority in the Legislature.
Of the 58 Republicans in the state Assembly at the time, 33 would pick up additional Republican voters. For instance, the district for freshman Rep. Mike Endsley (R-Sheboygan) would go from marginally to solidly Republican.
Those Republican representatives experiencing a drop in the number of Republican voters in their district under the redistricting plan would still have a strong Republican majority of voters. For instance, the district represented by Rep. Joel Kleefisch (R-Oconomowoc) would still be about 60% Republican despite losing a share of its GOP bases under the redistricting plan.
Republicans had the maps drafted in Michael Best's Madison offices and believed the process they used granted them attorney-client privilege that would keep their communications from being disclosed publicly. But the three-judge panel has rejected that argument and said lawmakers were trying to keep too much under wraps. McLeod and two other attorneys in the case were ordered to pay nearly $17,500 last month after the court found they had filed frivolous motions trying to keep information secret.
Senate President Mike Ellis (R-Neenah) said Monday he had never before been asked to sign a confidentiality agreement during his four decades in office.
He said he visited Michael Best's office to review his map last year but those at the office would not permit his aide to see it. He said the meeting lasted about five minutes.
"It was a pain in the you-know-what," he said.
The lawsuit over the maps was first brought by the group of Democratic residents. It was consolidated with a similar lawsuit by Voces. That is the group that filed the complaint Monday with the Dane County district attorney.
"This is an intentional plan to legislate in secret under the guise of attorney-client privilege," Earle said.
Ozanne, the district attorney, said he had just received the complaint and couldn't comment until he had had a chance to review it thoroughly.
Ozanne last year brought a complaint against state lawmakers contending they violated the open meetings law when they passed a bill that curbed collective bargaining for most public workers. The state Supreme Court ruled in June the that legislators had not violated the meetings law and that key aspects of the law do not apply to the Legislature.
Earle's complaint argues the redistricting meetings at the Michael Best offices amounted to a violation of the open meetings law. That's because the individual meetings were about whether the lawmakers supported the redistricting bill and together all the Republican lawmakers from the Senate and Assembly amounted to a "secret majority" that would vote in favor of the redistricting bill.
However, the state's open meetings law has an explicit exemption for private meetings of the Legislature's Republican and Democratic caucuses.Democracy SquareWisconsin WaveDemocracy SquareDemocracy SquareWisconsin Wave