It has been more than nine months and 5,300 COVID-19 deaths in Wisconsin since state lawmakers have enacted any legislation to help combat the pandemic. In fact, Wisconsin’s legislature has been the least active full-time legislature in the country since the pandemic began. Instead, legislative leaders have sued to block Governor Evers from implementing public health measures aimed at slowing the spread of COVID-19. 

Finally last week it looked like the long legislative impasse had ended. On January 12, the state Senate passed by a vote of 31 to 2 a compromise bill negotiated by Governor Evers and the new Senate Majority Leader, Devin LeMahieu. However, despite the nearly unanimous support for the bill in the Senate, the Assembly Speaker, Robin Vos, is refusing to bring that version of the bill to the Assembly floor. 

The compromise was negotiated with the Governor after Evers said he would veto a version of the bill passed by the Assembly (Assembly Bill 1). Ostensibly Assembly Bill 1 is a plan to fight COVID-19. In reality, the bill strips power from schools, local officials and the Governor, and transfers that power to legislative leaders. Although AB 1 contains some provisions that authorize additional spending, legislators in both houses carefully crafted the bill to exclude  appropriations of funds. As a result, it is not legislation that the Governor can pare back with his line item veto authority. Rather, he has to accept or veto all of all of AB 1.

Speaker Vos and some of his Republican colleagues are upset that the Senate compromise does not include the portions of AB 1 that would:

* Water down local control for schools: The Assembly Republicans are seeking to require public schools to provide in-person instruction, unless a super-majority of the school board approves online instruction. Even then, the approval would only be good for two weeks, at which point at least two-thirds of board members would have to re-approve online instruction. For districts that want to provide virtual instruction through the end of the current school year, the school board would have to meet and vote about 10 times to provide online instruction.

* Limit ability of local officials and others to address the pandemic: Under the Assembly bill, local health officers would only be able to set capacity restrictions or other constraints on businesses for two days . After that, any action by local public health authorities to control the pandemic would require a  two-thirds vote of approval by the local governing body (e.g. the County Board), and even those limits would require renewal every two weeks. 

The Assembly version would bar both state and local officials from prohibiting gatherings in places of worship. There is not any requirement that the gathering be for a religious purpose or associated with a religious institution.

Employers would not be able to require that employees get a COVID-19 vaccine, the way that employers can require their employees get a flu shot or other vaccination. For example, a nursing home seeking to get all employees a COVID-19 vaccine would not be able to set that as a condition of employment, although the nursing home would be able to require that all employees get a flu shot. 

* Restrict the Governor’s ability to respond to the pandemic: The Assembly proposal would not let the Governor spend federal money aimed at mitigating the pandemic unless the legislature’s budget committee also approved, slowing the ability of the Governor to use resources provided to the state. This provision demanding more control over federal money is especially audacious on the part of the legislature considering that in the spring the legislature moved so slowly to accept federal money that Wisconsin missed out on getting $25 million in federal money to pay for unemployment benefits. The legislature would be able in essence to hold federal money hostage to put pressure on the Governor in other areas. 

The bill approved almost unanimously in the Senate contains the parts of the Assembly bill on which there was broad bipartisan agreement. Some of those widely-supported measures include:

• Authorizing the legislature’s Joint Finance Committee to transfer up to $100 million to use for COVID-19 purposes.
• Allowing people to get early refills on their prescription drugs during the pandemic;
• Limiting the ability of health insurance plans to charge out-of-network fees for COVID-19 treatment; and 
• Waiving the requirement that people who lost their jobs through no fault of their own wait a week before filing for unemployment benefits. The waiting period would be waived until the middle of March. 

The compromise deal that the Senate Majority Leader struck with the Governor also includes a controversial proposal that Evers wanted to keep out of the bill. It gives businesses and other entities immunity from civil liability for a COVID-19-related injury or death, except in the case of reckless or wanton conduct or intentional misconduct. However, the compromise language does not go nearly as far in that respect as the Assembly bill, which would have specified that violating an order to close an entity or limit it’s capacity does not constitute reckless or wanton conduct or intentional misconduct.

Senator LeMahieu said the compromise is meant to build consensus, and he added that “we hope it draws bipartisan support and ultimately becomes law.” He also said in an interview that the Legislature could use separate bills to pass the more controversial measures. Speaker Vos, who many people expect to run for governor next year, has a very different strategy. He would rather pass a very partisan bill that consolidates power in the Legislature and limits local options for fighting the pandemic, knowing that the Governor would almost certainly veto that legislation  

It’s hard to believe that the Wisconsin Assembly is continuing to drag its feet when it comes to taking constructive steps to address the pandemic that has killed more than 5,000 Wisconsin residents. This inaction is particularly harmful to seniors, people of color and front line workers. Although the number of  Wisconsin cases has trended downward over the past couple of months, policymakers need to act very quickly to minimize spread of COVID-19 before March, when the more contagious form of the virus may become the dominant strain in the U.S and could cause a much larger surge in cases and deaths 

Instead of trying to use a crisis to consolidate its power, the Assembly should take proactive steps to mitigate the pandemic, including passing the Senate compromise, making changes that would streamline the application process for unemployment benefits, and taking federal money to expand BadgerCare.