Vol. 76, No. 4, April 2003

Capitol Training:
Wisconsin Lawyers in Congress

Sidebars:

• Four Wisconsin Lawyers on Judiciary Committees; Sensenbrenner Chairs
• Meet Wisconsin Congressional Delegates
• Tracking the issues

by Dianne Molvig

For some attorneys, a law degree is a prelude to a congressional career. Fifty-nine percent of current U.S. senators are law school graduates, while attorneys account for 43 percent of the House's voting members, according to the American Bar Association.

Wisconsin's numbers hit close to the overall ratio in the Senate, where one of the state's two senators is an attorney. In the House, Wisconsin considerably outpaces the national proportion, as five of eight, or 62.5 percent, of its representatives are lawyers.

Recently Wisconsin Lawyer talked to these six attorneys, plus Tom Barrett, who returned to private life last year after five terms in the House. We asked them how their legal training aids them in their work in Congress, and what they think Wisconsin lawyers should watch for in the current session.

Russ Feingold

Many routes lead people to Congress, notes Russ Feingold, "but for me, there's nothing like the fact that I have legal training." Feingold practiced full time with a Madison law firm for six years and served in the state Legislature for 10 years before his election to the U.S. Senate.

Legal training "comes in handy every day," he says, "especially on the Judiciary Committee, and also on the Foreign Relations Committee when we're dealing with issues of international law and treaties, or comparative law between countries. When I'm in a tight situation, I'm happy to have that legal background."

As just one example of how legal experience proves useful, when the Senate grappled with bankruptcy reform last year, "I was able to talk with some understanding, even though I'm not a bankruptcy expert, with bankruptcy lawyers, creditors' lawyers, debtors' lawyers, bankruptcy judges, and trustees," Feingold says. "I could summarize what they said in the Judiciary Committee, and I felt that gave me more credibility when I offered amendments to try to limit some of the unfair aspects of the bill."

Immigration issues, malpractice reform, and another attempt at bankruptcy reform are some of the legislative issues lawyers need to watch in coming months, Feingold says. "There's also the danger of unwise amendments to the Constitution and tinkering with the Bill of Rights," he adds, "such as the so-called flag desecration amendment. And the Justice Department will try to bring out another USA Patriot Act [Feingold was the only senator to vote against the first one] that will include, we think, greater domestic surveillance and intelligence gathering that may be questionable."

Also this session, Feingold has reintroduced the death penalty moratorium bill, and he plans to reintroduce a bill to abolish the death penalty. He authored both of these bills. "I'm not going to kid anyone that we think these are going to pass in this Congress and under this president," Feingold says. "But I think the movement against the death penalty is growing."

Tammy Baldwin

Looking back at her days in the state Assembly, Tammy Baldwin recalls that there, being a lawyer was a rarity. "I think at the time about 10 percent of state legislators were lawyers," she says. "That gave me tremendous opportunities to assume early leadership roles on committees where legal skills were helpful." For instance, she served on the Assembly's Criminal Justice Committee and the Elections, Constitutional Law, and Corrections Committee.

Six years in the Assembly, combined with her legal education and three years practicing law in a small Madison firm, created "a great skill set to bring to Congress," says Baldwin. She adds that as a member of the House Judiciary Committee, "almost every topic we deal with taps those skills."

Several issues of particular interest to lawyers will come before the House Judiciary Committee and Congress in the next few months, Baldwin notes. These include medical malpractice reform, bankruptcy reform, asbestos litigation issues, review of the Digital Millennium Copyright Act, and review of the Gramm-Leach-Bliley Act as it affects privacy notification requirements for attorneys.

As of late February, prospects loomed of a second USA Patriot Act, which could further extend law enforcement and intelligence-gathering agencies' authority. "I think the first [USA Patriot Act] overreached to begin with," Baldwin notes, "so I'm concerned about a second go-around."

She also expects death penalty moratorium legislation to resurface in this session. Baldwin coauthored last year's House bill. "It's too early to tell the impact of the decisions made in Illinois," she notes, referring to Gov. George Ryan's release of four wrongly convicted death-row inmates and commutation of 167 other Illinois death sentences. "My hope would be that we take seriously the information uncovered there [that shows] that clearly mistakes were made along the way."

Tom Barrett

Now back in private law practice in Milwaukee, Tom Barrett served five terms in the House of Representatives. "As much as I loved that job, I knew in my heart of hearts I had to come home," says Barrett, noting that he and his wife have four children aged 10 and under, all of whom remained in Wisconsin while he was in Washington.

Prior to being a congressman, Barrett clerked for two years for the late federal Judge Robert Warren in Wisconsin's Eastern District, and he was in private practice full time for two years before serving eight years in the state Legislature.

As a congressman, his legal background proved most useful in terms of knowing "how to look at both sides of an issue," Barrett says. Possibly the most severe test of that ability occurred in his few months on the House Judiciary Committee in 1998, during which he dealt with only one issue: President Bill Clinton's impeachment.

Barrett landed on the Judiciary Committee due to a string of events. After Sonny Bono's death, another Republican filled Bono's spot on the committee. Then, when Bono's widow was elected to fill her late husband's seat, also as a Republican, she requested the same committee appointments her husband had had, resulting in a one-person Republican edge. The Democratic leadership recruited Barrett to restore the Judiciary Committee's bipartisan balance.

"After impeachment was over, I left the committee," Barrett explains, "and Tammy Baldwin took my spot." Barrett moved on to another committee in which he had a strong interest, Energy and Commerce. Assignment to this committee was exclusive, meaning Barrett could not serve on any others at the same time.

Currently, Barrett is with Reinhart Boerner Van Deuren, where he represents companies and local government units seeking government grants or contracts. "We look at such issues as health care and trying to get more funding for the arts," Barrett says. "It's sort of a hybrid of what I've done in the past."

Mark Green

After six years in the state Assembly and now in his third term in the U.S. House, Mark Green says he's learned that "the greatest danger for legislators on any level is to fail to realize that legislation isn't implemented in a vacuum."

Green's law degree plus three years of full-time and six years of part-time private practice help him "evaluate legislation better," he says, "in terms of what its effect will be in the real world" and to devise ways to improve the law. Among key upcoming legislative debates of specific interest to attorneys, Green lists bankruptcy reform and changes in laws pertaining to crimes against minors.

Green was one of three Wisconsin representatives (along with Baldwin and Sensenbrenner) who grappled with the USA Patriot Act in the House Judiciary Committee. Now in his second term on that committee, he joined it "because it deals with so many of the issues I care about," Green says. "I've done a lot of work in the area of criminal justice reform [in the state Legislature], and that continues to be an area of interest to me. Obviously, I could not have foreseen all the antiterrorism work we'd be doing."

Indeed, the Judiciary Committee is typically "at the eye of the storm," Green says, in dealing with controversial legislative issues, ranging from faith-based initiatives to terrorism. As for the latter, "I think we had no choice but to modernize our wiretap and surveillance laws," he says. "But there's nothing to say that what we did is perfect. We built in a sunset clause [some provisions of the law expire Dec. 31, 2005] for a reason. Congress must go back and make sure that what we have done - and what the Department of Justice has done - is in line with our civil liberties."

Ron Kind

Ron Kind describes his lawyer background as "a tremendous asset" in Congress. "The analytical skills you learn in law school and apply in practice," he says, "help a lot in drafting and interpreting the law, and also in anticipating some of the traps of the language of the law, to make it workable and practical."

Before heading to Congress, Kind was a corporate litigator with a Milwaukee firm for two years and then returned to La Crosse to join the district attorney's office and serve as a special prosecutor in western Wisconsin.

Those prosecutorial skills come in handy when cross-examining people appearing before House oversight committees. "It helps to be able to ask questions and pin them down with answers," Kind notes, "so you don't get the general, political nonresponse-response that often happens at these hearings."

In coming months, watch for a push for medical malpractice reform legislation and, after that, product liability reform, Kind says. "One of the first things Bush did as governor in Texas was major tort reform," he notes. "That was his hallmark legislation right off the block. I think he wants to do the same at the federal level. We could end up with a one-size-fits-all approach across the country."

New federal product liability laws would preempt state laws, and Kind expects that to be unpopular in states that have taken their own action. Wisconsin, for instance, passed a product liability law that included a victim compensation fund, which Kind says is unlikely to be part of a federal law.

As a congressman, or a lawyer, it helps to keep your sense of humor intact, Kind notes. "I chuckle," he says, "at the way laws are drafted for sheer political purposes, even though they're in blatant violation of the Constitution. But we're all sworn to uphold the Constitution, and I treat that oath seriously. Sometimes it gets me in trouble politically. I see laws that are apple-pie issues, that would be politically popular, but that violate the Constitution. I say no to them. But good legal analysis doesn't always make for good politics back home."

Tom Petri

When Tom Petri joined Congress 34 years ago, he arrived with diverse legal experiences. After finishing law school, he became the first law clerk for Judge James Doyle, father of Wisconsin's current governor. He next signed up for a three-year stint in the Peace Corps in Somalia, where he was part of a three-person legal team that trained public officials in government administration.

Returning to the states, Petri served for a year on a government reorganization committee in the Nixon White House. And in 1970 he returned to Fond du Lac to practice law, first with a firm and then as a solo practitioner, before being elected to the Wisconsin Senate in 1972.

Legal training develops the ability to analyze problems from multiple perspectives - a useful skill in Congress, Petri notes. "It's easy to pass a law," he says, "but the devil is in the details. Many times something isn't thought of, and the next thing you know someone is inconvenienced, or worse, because you didn't think it through. You try to solve one problem and create another somewhere else. I think law practice makes you very aware of that."

Besides the upcoming legislative issues mentioned elsewhere in this article, Petri points to a consumer issue that will get attention in the House Transportation and Infrastructure Committee, for which he is vice chair. Fraudulent moving company practices - such as drastically raising fees after moving household goods and then holding those goods hostage until the customer pays up -- have become a prevalent problem. The federal Surface Transportation Board has jurisdiction over interstate movers but no resources to enforce against abuses. State attorneys general and state consumer protection agencies receive consumer complaints but have no authority to act on them. The current situation leaves consumers in legal limbo. "We'll be working with state attorneys general and other state associations to work out a solution," Petri says.

James Sensenbrenner

Steering toward politics early in his legal career, James Sensenbrenner won election to the state Legislature just months after finishing law school. During the first five of his 10 years in the Legislature, he also practiced law in Cedarburg. A legal background helps in political life because, he says, "one of the things lawyers are trained to do is to anticipate the other side's arguments. Then you use those arguments to hone your own arguments so that they can be sharper and more convincing."

"Specifically, I've been on the House Judiciary Committee for all the 24 years I've been in Congress," he adds. "My legal training allows me to better deal with statutory interpretations so that what the committee writes, and what passes and is enacted into law, precisely states what Congress intended."

Sensenbrenner has chaired the House Judiciary Committee since January 2001. He says he joined the committee initially because of his legal background, his interest in the issues the committee handles, and his experience on the Judiciary Committee in the state Legislature.

In the upcoming months, Sensenbrenner envisions attempts to pass a medical liability reform bill patterned after the California law, which would place no cap on economic damages, but would limit punitive damages to twice the amount of economic damages. Noneconomic damages would be capped at $250,000. Also in the lineup, he adds, is a class-action reform bill that would "establish federal uniform standards for certifying class actions."

Also, Sensenbrenner says he wants to "take another run at bankruptcy reform. I think the present system has been abused by many and been used by some as a financial planning tool."

Wisconsin Lawyer