Scott Walker’s Presidential Bid has Problems as a Result of his Secretive Campaign Against the Wisconsin False Claims Act
It is political season once again and so I need to repeat my usual mantra: this is a legal blog dealing with federal and state false claims act litigation. This blog is not political and is not affiliated with any political party or political philosophy. On some level politics is unavoidable when we talk about laws, however, and so from time to time we do dip into political issues.
So, for example, when politicans such as Sen. Charles Grassley (R-IA) tear apart the Chamber of Commerce at Congressional hearings attacking the federal False Claims Act, you can be sure you will find out about it here. And, when presidential candidates like Wisconsin Governor Scott Walker start secretly killing state false claims acts, you can rest assured that I am not going to let that go either.
The Importance of State False Claims Acts
Given that one of the main things we discuss on this blog is state-level false claims acts, regular readers will be well familiar with the notion that a majority of the states have state FCA statutes. The federal government created incentives for states to pass FCA statutes, and many states have done so. This not a blue state/red state thing — you will find red states like Texas and blue states like New York with state level FCAs.
The power of state FCA laws is not open to debate. As we have discussed many times, they provide a way for a state government to protect its budget in the same way that the federal false claims act does. Best of all, a state does not even need to do anything besides enact the law. Under the Deficit Reduction Act of 2005, by enacting a state qui tam/FCA statute, the state receives an extra 10% on its federal Medicaid match. And that amounts to real money folks.
But state FCA laws are not just about money — examples of abound of state FCA laws helping to protect public safety. As just one recent example of an FCA case that furthered the interests of public safety, my good friend Dave Haron recently used state and federal FCA statutes to bring a criminal doctor to justice. In this particular case, Dr. Farid Fata was performing chemotherapy treatments on individuals that didn’t even have cancer. But for the qui tam provisions of the Michigan False Claims Act, Dr. Fata would still be at it today.
So, when you put the free money together with the public safety angle, tt is difficult for a state-level politician to say “No” to a state FCA. For those reasons among many others, states tend to like the results when they pass a qualifying law. Having testified many times myself in favor of state false claims laws, I usually tell legislators that no state with an FCA has ever repealed it. I will not be able to say that from now on.
Scott Walker’s Screw-Up as Governor of Wisconsin
Wisconsin has had a state false claims act since 2006, I believe. Wisconsin however just became the first state to repeal a state false claims act, and it happened under the watch of Republican Governor (and presidential candidate) Scott Walker.
And it happened in a very unusual way. To kill the Wisconsin False Claims Act, Walker used an unusual, secretive Wisconsin legislative maneuver known as a “999 motion.” Actually, the maneuver itself might not be all that unusual — nearly every state legislature has something similar for dry budget stuff. The 999 Motion basically takes a procedural matter outside the realm of complete debate — i.e., complete democracy. Moreover, there is absolutely no notice in advance, so opponents of what is being killed have no change to rally their supporters.
In fact, over the past three budget cycles, Wisconsin legislators have introduced more and more proposals through “999 motions.” Perhaps not surprisingly those proposals have begun to stray farther and farther from the sort of dry technical matters they originally covered. In other words, the Wisconsin legislature, and Governor Scott Walker, have started to use these secretive, undemocratic techniques as a substitute for democratic debate.
When you add up all of the undemocratic elements of a 999 Motion, you will see what it is unusual for a state legislature to use a ruse like a “999 motion” for something major — like, for example, repealing a state False Claims Act, but that is exactly what Walker did. Even the FCA defense blogs — in other words, blogs by FCA defense practitioners — have admitted this.
Wisconsin has experienced some success in the past with its FCA law; these were successes that State AG Van Hollen was quick to take credit for, like a $1.14 million dollar settlement from Ranbaxy; a $1.3 million settlement with Endo Pharma and a $768,000 settlement with KV Pharma.
Its funny, of course, that Walker is engaging in chicanery like this while seeking to be the Republican nominee for President of the United States. Let us not forget that it was President Ronald Reagan who brought the federal False Claims Act back to like in 1986.
I don’t know if the secretive, undemocratic repeal of a law that protects public health and safety is too arcane a topic for voters to latch onto, but Walker should have to explain why he did this and it should be used against him by his primary opponents…only time will tell if it is.