Legal Commentary

The Wisconsin GOP?s Fishing Expedition

By Jonathan H. Adler

Earlier this week, noted University of Wisconsin historian William Cronon published an op-ed in the NYT that, among other things, drew parallels between Wisconsin Governor Scott Walker and Senator Joe McCarthy. (Yes, that McCarthy.)  It was a bit much, particularly given its attempt to attribute all indecent or improper behavior in the Wisconsin imbroglio to one side of the aisle.   (Althouse had a similar reaction.) But there may be more to the story.

Earlier in March Prof. Cronon launched a blog to provide historical perspective on the fight over collective bargaining rights for public employees in Wisconsin.  A week or so ago he wrote a blog post on the American Legislative Exchange Council, largely crediting ALEC with the push for anti-public-sector-union legislation in many states.  Shortly thereafter, the Wisconsin GOP submitted an oped records request seeking any e-mails sent by Prof. Cronon on his university account that makes reference to unions and other words or phrases related to the current dispute of public employee collective bargaining.  (More here, here, and here.)  The post on ALEC had a few errors (such as the claim that ALEC only accepts Republicans as legislative members) but there was nothing in the post, or Cronon?s other recent writings, that would justify this sort of response.  Not even close.

The request was submitted on March 17, and the op-ed ran on March 21.  This makes the op-ed, and the invocation of Joe McCarthy, easier to understand.  The open records request infuriated Prof. Cronon, and with good reason.  Even if justified under Wisconsin state law, the request looks like an effort to intimidate a prominent critic by conducting a fishing expedition through private communications ? an expedition aimed at producing fodder for additional attacks on his reputation.   Unless the Wisconsin GOP wants to embrace the McCarthy mantle, it should explain the basis for its request ? pointing to some evidence of meaningful wrongdoing by Professor Cronon that could justify this intrusion ? or confess error and desist.

Full post as published by The Volokh Conspiracy on March 25, 2011 (boomark / email).