They have struck blows in favor of your right to buy delicious creamy butter made in Ireland, your right to have a beer while you tailgate at a football game, and your right to buy cheap booze by allowing stores to sell liquor at a loss. They have even represented Isthmus and The Progressive magazine in open records cases.
Still, if you are a progressive, you are likely not a fan of the Wisconsin Institute for Law and Liberty. You might know WILL best from a case currently winding its way through the courts that could have the effect of removing more than 200,000 Wisconsin voters from the registration rolls. Or you may have heard of them as the nonprofit law firm now suing the Madison Metropolitan School District over its policy around parental notification when a student is transitioning from their birth gender.
WILL has also been active in cases enforcing the Act 10 takedown of public employee unions, and in favor of school choice. They have weighed in on the side of the extreme partisan gerrymandering of legislative districts and have sued Gov. Tony Evers over what they claim to be an unconstitutional use of his line-item veto authority.
“What’s concerning to me is that WILL has found a way within the system to advance truly radical goals that would substantially change the way Wisconsin works and what people’s lives are like,” says Madison-based attorney Jeff Mandell, who is fighting WILL on the voter registration case and on other issues. “And very few people are noticing,”
Mike Browne, deputy director of One Wisconsin Now, a liberal policy group, shares those concerns: “You would struggle in Wisconsin to find the progressive organization that is an answer to WILL.” Browne asserts that WILL is part of a broader conservative network that is electing conservative justices to the state Supreme Court and then bringing cases that give them a chance to advance a right-wing agenda.
And the organization has ample resources to pursue its goals, as Scot Ross, who used to head One Wisconsin Now, once noted in a backhanded compliment: “I never said you wouldn’t get a helluva lawyer if you use the Bradley Foundation’s marquee organization.”
To at least some of those charges, WILL would probably cheerfully plead guilty.
Tucked away in a nondescript office building behind Milwaukee’s city hall sits a growing conservative powerhouse. The Wisconsin Institute for Law and Liberty’s $3 million annual budget supports 17 staff members, including four Harvard-trained attorneys and public relations and research staff with connections to Republican legislative leaders, conservative state Supreme Court justices and Wisconsin Manufacturers and Commerce, the state’s largest business lobby.
Launched in 2011 by one of those Harvard lawyers, Rick Esenberg, WILL is part of a well-heeled network of conservative think tanks, law firms and policy shops that are coordinated with Republican elected officials. It’s an idea-to-policy pipeline.
Pumping money through that pipeline is the Milwaukee-based Bradley Foundation. WILL has only four board members, and two have close ties to Bradley. James T. Barry III sits on the boards of both organizations and Michael Grebe is the former president and CEO of Bradley. Grebe was also general counsel for the Republican National Committee, and he chaired Scott Walker’s 2010 gubernatorial campaign.
According to the foundation’s website, last year Bradley was a major funder of WILL, the Badger Institute (formerly the Wisconsin Policy Research Institute) the MacIver Institute and three centers on the University of Wisconsin-Madison campus — the Center for the Study of the American Constitution; the Center for the Study of Liberal Democracy: and the Center for Research on the Wisconsin Economy (CROWE).
All told, those six Wisconsin-based entities combined were awarded about $2 million from Bradley last year alone. At $826,500, WILL got the largest slice.
Beyond Wisconsin, Bradley also supports the American Legislative Exchange Council (ALEC), the Federalist Society for Law and Public Policy Studies, the Goldwater Institute, the Cato Institute, the Heritage Foundation, and the American Enterprise Institute, all prominent conservative think tanks.
The coordination between policy research and partisan politics came into focus last year when WILL and CROWE partnered on a research paper claiming that if Wisconsin took federal Medicaid expansion money, as Gov. Tony Evers was proposing at the time, there would be a net cost to Wisconsin of $600 million annually. The study was touted at a press conference with Republican legislators. But the report came in for strong criticism from the UW’s Institute for Research on Poverty and others for making basic math errors and for cherry-picking data from the academic literature on the subject. WILL and CROWE corrected the math errors and revised their cost estimate down to no more than $184 million, but that also was questioned by the Institute for Research on Poverty.
Neither Esenberg nor the foundation make any bones about the close connection between Bradley and WILL. Esenberg acknowledges that he and Grebe talked about the need for a public interest law firm before Bradley’s board approved the concept. At that point, adds Esenberg, Grebe invited him to submit a detailed proposal. But Esenberg says that Bradley exercises no control over WILL’s operations and the foundation is quick to agree. In a statement, current Bradley CEO Rick Graber says, “The success of a grant recipient is the result of their own hard work and decision making; we never interfere in what they do.”
Esenberg believes that WILL was necessary to counter the power of the left.
“The public interest legal movement on the left is quite robust and has been quite successful in using the courts to effectuate policy change,” he says, pointing to groups like the American Civil Liberties Union. “There was a need to change the intellectual conversation.”
The ACLU of Wisconsin’s Chris Ott gives a nod back to Esenberg. “If WILL was inspired by or formed in response to the ACLU, we appreciate that level of respect, and we agree with WILL on issues such as the need for open government,” says Ott. “However, we disagree with them on a lot of civil and constitutional rights issues.” He cites the voter registration and transgender cases and the Medicaid expansion as issues on which the ACLU takes the opposite view.
While WILL is respected as a worthy adversary by some groups on the left, it is loved by many on the right.
“Many of our schools have appreciated WILL’s help in getting access to education services guaranteed by state and federal law,” says Sharon Schmeling, executive director of the Wisconsin Council of Religious and Independent Schools. “For example, they have helped students get access to busing, which is guaranteed in the state Constitution. They fought for choice schools to use virtual instruction during snow days, just like the public schools do. They challenge local districts who won’t provide services under federal programs that nonpublic school children are entitled to receive by law. WILL has been a game changer.”
Now, after almost a decade of growth, many on the left are envious of WILL’s capabilities and its growing influence. That is okay with Esenberg. “I’d like to think we’re a force to be reckoned with and feared. I think we’ve managed to even the playing field,” he says, arguing that at most law firms the pro bono legal work is still done largely on behalf of progressive causes.
“Right now as a state-based organization on our side of the fence, we are probably the most active and impactful along with the Goldwater Foundation [in Arizona],” he says.
Mandell would agree. He views Esenberg as the architect of an ingenious legal strategy to overturn the administrative state. Far from just evening the playing field, Mandell sees WILL as poised to “turn back the clock 100 years.”
“My concern about WILL is the extent to which they have a defined litigation agenda that people are not fully appreciating. Rick is savvy and strategic, and he understands that you don’t need the grand slam, you can win by manufacturing runs.”
So, while the voter registration and transgender notification cases get most of the attention, Mandell sees a threat that is perhaps even greater in cases with a much lower profile.
Remember that case involving liquor stores and pricing? That’s called a minimum markup law, designed to protect small, local businesses. WILL argues that these laws are unconstitutional because they violate people’s economic liberties.
Economic liberty is also at the heart of WILL’s steadfast defense of the right to tailgate Wisconsin-style. Esenberg explains: “A few years ago the Tavern League tried to sneak through a change in the law that would regulate wedding barns. We determined that the language would have prohibited tailgating at [places like] Miller Park or Lambeau Field [because you’d need a license to have alcohol there]. We called them on that. We put out a statement that this is nothing more than crony capitalism. Tailgating is important in Wisconsin. Knock it off. And the motion was immediately withdrawn.”
WILL is also fighting another attempt by the Tavern League to slip the same language into a bill that would expand bar hours during the Democratic National Convention in Milwaukee this July.
Wisconsinites, eager to save a few bucks on a bottle of brandy or appalled by the threat to their time-honored right to drink beer in a stadium parking lot, might cheer them on. But Mandell claims that through seemingly innocuous cases like these, Esenberg wants to reinstate the infamous Lochner ruling. In that 1905 case, the United States Supreme Court said that New York could not regulate the working hours of bakers because it interfered with the right to contract between bakery owners and workers. That ruling established a broader rule used to strike down all kinds of laws that governed working conditions in the Gilded Age. The court partially reversed the ruling in 1937, but it wasn’t fully abandoned until 1963.
In different, but also obscure, cases, Mandell says that Esenberg is going for the reinstatement of the principle of “non-delegation.” This would have the effect of making it difficult for the Department of Natural Resources, for example, to regulate particulate matter in air samples or for other agencies to enforce other regulations. Instead, the Legislature itself would have to set all of these specific standards. Not only would it be difficult to get a Legislature full of lay people to agree on a scientifically based standard, but it would open up the regulatory process to much more direct influence from industry lobbyists.
“Of course he won’t say that he’s trying to reinstate Lochner in so many words. Saying you’re for Lochner is a little like saying that you support the Dred Scott decision,” says Mandell, referring to the infamous Supreme Court decision that determined African Americans were not citizens under the U.S. Constitution.
When I ask Esenberg about it, he demurs. “Lochner is a slur that you hurl at somebody when you want to shut them up. I don’t think Lochner is coming back.”
But he then offers a defense of the underlying ruling. “I think Lochner is misunderstood,” he says. “During the Lochner era, most regulations were upheld, but courts took a real look at the justifications for them. They took a look at whether these regulations were really being advanced to protect public health and safety, or just to protect favored competitors.”
Mandell fears that the Wisconsin Supreme Court is poised to go much further than the stepped- up scrutiny that Esenberg says he wants. He points to language from Justice Rebecca Bradley, one of three Federalist Society members on the state’s high court. Federalists believe in what the late Justice Antonin Scalia called a “dead constitution,” whose meaning does not change over time. In an opinion on a case involving the powers of the state schools superintendent, Bradley complained of “the concentration of power within an administrative leviathan, which clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty.”
That sounds to Mandell like she is ready to go far beyond simple skepticism and scrutiny of regulation. Doug Poland agrees. “WILL has been pursuing a policy and litigation agenda that is not actually conservative in nature, but that seeks to radically reshape the law that grew out of the legal and government reforms of the Progressive Republicans in the early 20th century,” says Poland, a Madison attorney who is also opposing WILL on the voter registration case.
“WILL’s overall goal appears to be one of uniformly rolling back the clock on Wisconsin law more than 100 years, reducing the rights and benefits of Wisconsinites, and making Wisconsin less democratic.”
Some do give WILL credit for consistency on open government issues. Last year Esenberg filed a friend of the court brief on behalf of The Progressive to get a Republican legislator to release his emails. Rep. Scott Krug (R-Nekoosa) eventually had to turn them over. Also, in 2018, WILL went to bat for Isthmus when the Madison Police Department dragged its feet on turning over documents. Soon after WILL intervened, the police department complied.
“I appreciate WILL’s commitment to open government,” says Bill Lueders, editor of The Progressive and president of the Wisconsin Freedom of Information Council.
“I think the group’s lawyers are sincere in their desire to push back against official secrecy. When WILL expands access to information on the affairs of government, it expands access for everyone.”
But when it comes to WILL’s broader work, Lueders is unsparing. “Personally and politically, I disagree with much of [their] agenda,” he says. “In particular, I think the obvious real goal of its so-called voter integrity crusade is voter suppression, for the purpose of making it easier for Republicans to win.”
In that voter registration case WILL convinced an Ozaukee County circuit court judge that state law requires the state Elections Board to order the removal from the voter registration lists of people who may have moved and not responded to an official mailing asking them to report their new address.
Mandell, representing the Service Employees International Union, joined other groups in appealing the ruling. In late February, the Fourth District Court of Appeals in Madison overturned the circuit court. Esenberg says that WILL will appeal to the state Supreme Court, but even if the court takes the case, a final ruling is not expected before the April 7 general election in which conservative Supreme Court Justice Daniel Kelly is facing a challenge from the liberal-backed Dane County Circuit Court Judge Jill Karofsky.
But no one is betting that what liberals call a “voter purge” won’t still happen in time for the November election. And in a state that Donald Trump won by only 22,000 votes, disrupting the voting process for upwards of 200,000 people could have a big impact.
Still, One Wisconsin Now’s Browne argues that the case was primarily intended to help Kelly this spring. He points out that before he was on the court, Kelly was vice president and general counsel for another large conservative foundation, the Kern Family Foundation. “During Kelly’s tenure at KFF, the amount of funding WILL got from them increased exponentially,” says Browne. Browne’s review of Kern’s tax filings shows that their contributions to WILL increased while Kelly was at Kern from $54,000 in 2012 to $248,000 in 2014.
Esenberg argues that WILL’s case is not about voter suppression or electing a favored candidate but about the integrity of the process. He takes issue with the implications of a One Wisconsin Now press release that showed that nine of the 10 communities most impacted, starting with Milwaukee and Madison, voted for Hillary Clinton in 2016.
Esenberg argues that no one can say for sure how individuals who would be removed from the voter lists would vote, just based on where they live or how much money they have. “You can’t predict how people will vote any more just based on income,” he says. “But I’m pretty sure that these people [who could be purged from the list] aren’t poor.”
He says a frequent reason people are removed from the rolls is that they register a vehicle at a different address — a second home or a business, for instance. These tend to be things that are done by people with higher incomes.
The other high-profile case WILL is currently pursuing is the challenge to the Madison school district’s policy for transgender students. District officials rebuffed WILL’s demand that they change their policy, and so WILL is proceeding with court action.
The suit would force the district to reverse a policy that blocks school personnel, without the permission of the student in question, from informing parents when their child is transitioning from their birth gender at school. Allowing or even requiring schools to inform parents would seem to be at odds with WILL’s espoused support for personal liberty.
But Esenberg puts it in a different context. “For us, the issue is about parental rights, and this is consistent with the idea that we need to encourage a robust civil society that exists apart from the government and politics,” he says. “We do many things together in many different ways: churches, neighborhoods, volunteer organizations, businesses, markets … and families,” adds Esenberg, who supported efforts to pass Wisconsin’s 2006 constitutional ban on same-sex marriage and later represented Wisconsin Family Action in its unsuccessful challenge to the state’s domestic partner registry.
“I think one of the fundamental mistakes of the progressive left has been to suppose that the government can effectively do what the family does and that families should be viewed with suspicion. Our clients believe that in most cases, when faced with what is certainly a difficult situation, parents ought to be involved.”
But if a child is not comfortable talking about this at home, wouldn’t that indicate parental notification might lead to problems? “There certainly might be situations when a parent responds in an abusive manner,” Esenberg says. “But we should not presume that will be the case based solely on the say-so of a child.”
One thing Esenberg, Mandell and Browne agree on is that WILL has the luxury of a broad mandate that allows its legal team to pick cases strategically in order to advance an agenda.
The Bradley Foundation and other conservative funders, says Browne, invest in organizations versus investing in projects. So they have more flexibility. WILL can go find the case that advances the larger cause. “It is from start to finish a comprehensive strategy to advance their ideological objectives. And now you can add the courts to that strategy,” says Browne.
Yet, for all its resources, talent and conservative network connections, WILL has not yet been especially successful in its biggest fights. If the intent of the voter registration case really was to disenfranchise a disproportionate group of liberal voters in time to help Kelly this April, it hasn’t worked out that way. And now it’s anybody’s guess if the state Supreme Court will take WILL’s appeal and rule in time to impact the November election.
If its intent is to upend the administrative state and the worker and public protections that come with it, WILL has not made much progress on cases that would have advanced that agenda, either.
For example, in 2018 WILL challenged a law that prohibits cemeteries from also operating funeral homes. On the surface it looks like a simple case of overregulation, but had they prevailed Mandell says that it could have been one of those cases that chips away at the legal foundation for all kinds of regulations that are more directly related to protecting public health and safety. Only two of the seven justices, Kelly and Rebecca Bradley, agreed with WILL, and so the law remains in place.
And WILL’s study on Medicaid expansion, replete with errors, likely damaged their credibility.
For the time being, WILL would seem to pose more of a looming threat to progressive policies than an organization that is actually racking up lots of big conservative victories. It’s making more headlines than new law. But there is no question that WILL is strategic, smart and well-funded, and that they have a Legislature and a Supreme Court that are open, if not eager, to hear their pleas.
And for now, there is no organization on the left that can match them. Says One Wisconsin’s Browne, “It is a glaring gap and it would behoove the left to get serious about filling it.”