Sen. Jon Erpenbach: Protecting the privacy of his constituents.
In 2011, state Sen. Jon Erpenbach made himself odious to many of his fellow lawmakers when he exited the state of Wisconsin in order to take a principled stand. The issue at the time was Gov. Scott Walker's Act 10, which eliminated collective bargaining for public-sector unions. Erpenbach joined other Democrats in a course of action that, even then, many in his own party felt was simply delaying the inevitable and causing unnecessary expense and inconvenience.
Three years later, the Middleton Democrat again finds himself in the position of being asked to stand down from a fight. The arguments alternate between "he's wrong" to "he will lose anyway, so he might as well accept reality and save everybody time and money." Even the Wisconsin State Journal, in its April 15 editorial, calls on the senator to give it up.
During the Act 10 showdown, Erpenbach received many contacts from constituents, as one might expect. Many of these contacts took the form of email. Also as one might expect, many of these contacts were from the government workers whom Act 10 was targeting. Later, people connected with the GOP sought to identify those who dared to contact the senator over Act 10. Erpenbach refused to release their names, and the matter ended up in court. The District 2 Court of Appeals recently ruled against Erpenbach (PDF), ordering that he turn over the names and email addresses of those constituents who contacted him via email. (The senator had already released the content of the communications.)
The argument against Erpenbach has been that "the right of the people to monitor the people's business is one of the core principles of democracy," and that Wisconsin open records law "requires that all emails are public records." These arguments are faulty.
For starters, the open records law -- as it pertains to emails sent to, or from, public officials -- has been evolving in recent years. The law itself is already established; however, its application regarding electronic formats under various circumstances remains fuzzy at best, and is still being reviewed by various courts. For instance, if a public official, while off duty, has an email exchange with a friend from a home email account in which a "public issue" is discussed, is this exchange -- which is essentially a private conversation -- subject to open records laws? The answer is not entirely clear, and the legal precedents have not been fully established. Not to mention the enforcement mechanisms.
There is no legal or philosophical uncertainty about the public nature of certain political acts. Writing letters to the editor, protesting on the Capitol Square and even signing recall petitions are all public forms of expression in which there is no expectation of privacy on the part of the actor. And certainly how lawmakers vote, spend money or accept money is subject to open records. But what about private conversations on the telephone? Or in person? Or via email? It seems to me that a private conversation is just that, and should be respected.
The First Amendment of the U.S. Constitution states that the government shall make no law abridging the right of the people to petition said government. Telling citizens that private emails to their government leaders are subject to publication is a form of political intimidation. This most certainly "abridges" private citizens' right to petition their leaders, especially when one considers that citizens often contact their representatives about personal issues, such as when a disabled person or a crime victim seek help from their state representative in dealing with a state agency.
Emails from constituents are not what is corrupting our elected officials. Rather, it is the obscene amount of money being sent to them by corporations, by the rich and by outside interests. I hope Sen. Erpenbach will continue his principled fight, since protecting the people's right to petition their government without fear is well worth whatever the fight may cost.
Others who have come before us have already paid a much higher price for this right.
Kurt Karbusicky is formerly the chief deputy coroner of Dane County, and also served previously as a trustee for the village of Black Earth. "Citizen" is an opinion series that presents the views of the author. If you would like to reply, please comment or consider submitting an op-ed in response.
