Stanford University

From the SelectedWorks of Mark Gaber

August 19, 2009

The History of Wisconsin’s Alcohol Laws: ADrunk Culture or Lobbyists Drunk with Power?Mark Gaber, Stanford Law School

Available at: https://works.bepress.com/mark_gaber/1/

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The History of Wisconsin’s Alcohol Laws: A Drunk Culture or Lobbyists Drunk with

Power?

Mark P. Gaber*

Wisconsin leads the nation in a bevy of alcohol consumption statistics—from binge drinking to admitted drunk drivers to liquor licenses—and has among the most lenient alcohol laws in the nation as well. It is the only state that does not criminalize the first offense of drunk driving, one of a handful that does not permit drunk driving checkpoints, and the only state where children can be served alcohol at bars with the consent of their parents. Many point to the state’s German heritage to explain its affinity for alcohol. While this might explain the genesis of the state’s drinking culture, it cannot alone explain the relatively lax alcohol laws, given that states with similar cultural profiles and drinking statistics, like North Dakota and Minnesota, have more strict laws. This paper examines the influence of lobbying groups, including the Wisconsin Tavern League, on Wisconsin alcohol laws from the 1850s to today, and determines that the unique historical presence of strong alcohol lobbying groups in the state, more so than any cultural factor, is the most likely explanation for the state’s lenient drunk driving and alcohol consumption laws.

Introduction..................................................................................................................................... 2

I. “A Pervasive and Well-Documented Drinking Culture” ......................................................... 6

II. Wisconsin and Alcohol—German Influence and Prohibition Politics..................................... 13

A. Wisconsin: German State “Par Excellence” ..................................................................... 13

B. Prohibition Part One.......................................................................................................... 15

C. Prohibition Part Two: Twentieth Century Prohibition Politics in Wisconsin ................... 19

III. A Nation Gets MADD: The Crackdown of the 1980s and 90s ........................................... 25

IV. The Wisconsin Tavern League Today: Unmatched Influence .............................................. 36

A. Ghosts of 1986: Wisconsin Resists Federal Mandate to Lower Legal Alcohol Limit ..... 39

B. Tavern League’s Relationship With Legislature............................................................... 42

C. First Offense Criminalization Unlikely Soon.................................................................... 45

Conclusion .................................................................................................................................... 46

* J.D., Stanford Law School, 2010; B.A., St. Norbert College, 2005. I am grateful to Stanford Law School Professor Amalia Kessler as well as Nina Emerson, Director of the University of Wisconsin Law School Resource Center on Impaired Driving, for their generous feedback and guidance with this project.

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Introduction

In Welsh v. Wisconsin,1 a seminal criminal procedure case, the Supreme Court held that

the warrantless entry into a person’s home to arrest him or her for a minor civil traffic offense

violated the Fourth Amendment.2 In April 1978 in Madison, Wisconsin, Randy Jablonic

witnessed Edward Welsh driving erratically—swerving and eventually driving off the road and

coming to a stop. Welsh approached Jablonic asking for a ride home, but then instead walked

off when Jablonic suggested that they wait for help to arrive. After questioning Jablonic, the

police went to Welsh’s home, gained entry, and arrested Welsh for driving under the influence of

alcohol.3

The Wisconsin Supreme Court found the warrantless entry justified by the “hot pursuit”

nature of the investigation, public safety, and the need to prevent the destruction of evidence.4

Reversing, the U.S. Supreme Court noted that the Fourth Amendment required a stronger state

interest to allow a warrantless search of the home. “The State of Wisconsin has chosen to

classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense

for which no imprisonment is possible. This is the best indication of the State’s interest in

precipitating an arrest . . . .”5 The Court noted that at the time, Wisconsin, like Minnesota,

Nebraska, and South Dakota, had “chosen to limit severely the penalties that may be imposed

after a first conviction for driving while intoxicated.”6

1 466 U.S. 740 (1984) 2 Id. at 754 3 Id. at 742-43; see also Warrantless Home Arrests Curbed, FACTS ON FILE WORLD NEWS DIG., May 25, 1984, at 373, F2. 4 466 U.S. 740 at 747-48. 5 Id. at 754 (citations omitted). 6 Id. at 754 n.14.

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Justice Blackmun concurred with the majority opinion, but wrote separately to include a

“personal observation,”7 chastising Wisconsin for its lax drunk driving law:

I yield to no one in my profound personal concern about the unwillingness of our national consciousness to face up to—and to do something about—the continuing slaughter upon our Nation’s highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion.

. . . . And it amazes me that one of our great States—one which, by its highway

signs, proclaims to be diligent and emphatic in its prosecution of the drunken driver—still classifies driving while intoxicated as a civil violation that allows only a money forfeiture of not more than $300 so long as it is a first offense. The State, like the indulgent parent, hesitates to discipline the spoiled child very much, even though the child is engaging in an act that is dangerous to others who are law abiding and helpless in the face of the child’s act. Our personal convenience still weighs heavily in the balance, and the highway deaths and injuries continue. But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so.8

Since the Court’s 1984 decision, Minnesota, Nebraska, and South Dakota enacted statutes

making the first offense a misdemeanor; Wisconsin is now the only state, twenty-five years later,

that continues to classify first offense driving under the influence (DUI) as a municipal violation

punishable by civil forfeiture.9 The second through fourth offenses are misdemeanors, while five

or more offenses yield a felony conviction.10 This penalty structure is considerably less strict

than most states—the third offense is a felony in about half the states, the fourth offense is a

7 Id. at 755 (Blackmun, J., concurring). 8 Id. at 755-57 (citations omitted). 9 See Eric Litke, Why So Many Drunk Drivers, SHEBOYGAN PRESS, Nov. 19, 2006, at 1A; National Conference of State Legislatures, Criminal Status of State Drunk Driving Laws, http://www.ncsl.org/print/transportation/drunkdrivecriminal.pdf. 10 National Conference of State Legislatures, supra note 9, Wisconsin Legislative Reference Bureau, An Historical Summery of Wisconsin’s Drunk Driving Legislation, No. 09-1, Jan. 2009, http://www.legis.wisconsin.gov/lrb/pubs/im/09im1.pdf.

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felony in fourteen states, and another six make the second offense a felony.11 Wisconsin is also

one of only ten states that do not allow sobriety checkpoints,12 which the Supreme Court found

constitutional in 1990.13 In addition, bartenders may serve alcohol to minors of any age,

provided their parent accompanies them and consents.14 And Wisconsin’s beer tax, the third-

lowest in the nation, is two dollars per barrel—the same level it was at in 1969.15 Further,

“Wisconsin ranks below many other states in the amount it spends on enforcement of drunken-

driving laws. Missouri, with a population only slightly higher than Wisconsin, spends more than

four times as much.”16

The 1980s saw a major nationwide move to stiffen penalties and enforcement of drunk

driving. While Wisconsin was not left out of this movement, many of its laws are significantly

more lenient than the rest of the nation.17 This paper examines the possible historical reasons for

the difference in laws, and suggests that while the cultural and German ancestral factors often

11 Dan Benson, Drunken Driving Law Changes Questioned; DAs Cite Uncertain Effect, High Cost, MILWAUKEE J. SENTINEL, May 17, 2008, at A1. 12 Lisa Sink, Drunken Driving Laws too Lax, Task Force Says; Study led by Waukesha County DA Recommends Checkpoints, Plus More Stringent Punishment, MILWAUKEE J. SENTINEL, Feb. 19, 2000, at 1A. The other states that prohibit checkpoints are: Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, and Wyoming. Mothers Against Drunk Driving, Sobriety Checkpoint, http://www.madd.org/Drunk-Driving/Drunk-Driving/Research/View-Research.aspx?research=25. See also Andy Davis, Sobriety Checkpoints Abound; State Police Intensify Effort to Put Brakes on Drunken Driving, ARK. DEMOCRAT-GAZETTE (Little Rock), Apr. 7, 2008. 13 Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990). 14 Dirk Johnson, Some See Big Problem in Wisconsin Drinking, N.Y. TIMES, Nov. 16, 2008 (“While it might raise eyebrows in most of America, it is perfectly legal in Wisconsin. Minors can drink alcohol in a bar or restaurant in Wisconsin if they are accompanied by a parent or legal guardian who gives consent. While there is no state law setting a minimum age, bartenders can use their discretion in deciding whom to serve.”). 15 Steve Elbow, Stiffer Drunken-Driving Laws May Be on the Horizon, CAPITAL TIMES (Madison), Jan. 21, 2009. 16 Id. 17 See discussion supra, this part; see also Robert Enstad, Wisconsin Corking Under-21 Drinkers, CHI. TRIB., Sept. 1, 1986, at 4C (noting that “Wisconsin has had liberal drinking laws” since before it became a state in 1848).

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cited are important to developing the alcohol-friendly political climate and may explain the

underlying drinking problem in Wisconsin and other upper-Midwestern states, the most

significant factor in the state’s history of alcohol law and policy has been the power and

influence of lobbying organizations—first the Sons of Temperance during the 1850s, next the

Anti-Saloon League and the Wisconsin Anti-Prohibition Association during the Prohibition era,

and today the Wisconsin Tavern League. Particularly in modern times, the presence of the

powerful Tavern League in Wisconsin is the main difference between it its chief drinking rival,

North Dakota, which lacks a strong lobbying element on behalf of state taverns. The success of

the recently formed Minnesota Tavern League in slowing the state’s adoption of a federally-

mandated lower Blood Alcohol Content (BAC) level provides further demonstration of the

power of these groups.18

German cultural influences certainly were important in the development of these

lobbying groups, but modern polling data of Wisconsinite’s views of the state’s alcohol laws,

coupled with the lopsided vote tallies in the legislature when the Tavern League does fail to

prevent measures from coming to the floor indicate that at this point, there may be stronger

support in the modern state culture for stricter laws, but the accumulated power of the Tavern

League holds those changes at bay.19

Part I details the current alcohol-related statistics in Wisconsin, which have led to the

recognition of its “pervasive and well-documented drinking culture.”20 Part II examines the

history of the “drinking culture” in Wisconsin—with an emphasis on the German immigration to

18 Tavern League of Minnesota, http://www.tavernleaguemn.org (Stating that the League “[is] the reason that Minnesota was the last state to enact its laws on .08 blood alcohol content.”). 19 One exception is the closer polling on lower the BAC legal limit to .08, which residents supported by a small plurality when polled. See infra, note 220. 20 Id.

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the state in the nineteenth century, early attempts at Prohibition in Wisconsin during the 1840s

and 50s and the role of interest groups, and Wisconsin politics during the Prohibition period of

the twentieth century and how it was affected by lobbying organizations. Part III describes the

national crackdown on drunk driving that occurred in the 1980s and 90s and examines

Wisconsin’s participation and the influence of the Wisconsin Tavern League. Finally, Part IV

discusses the most recent developments in drunk driving and other alcohol-related laws in

Wisconsin and the continuing power the Wisconsin Tavern League holds over the state

legislature.

I. “A Pervasive and Well-Documented Drinking Culture”

An examination of why Wisconsin’s drinking laws are, in many ways, more lax than the

rest of the country must first explore the possibility that the laws are such because there is not a

significant alcohol or drunk-driving problem in the state for which a stiffer public policy is

needed. This exploration soundly dispenses with such a hypothesis—empirical evidence

indicates that Wisconsin does have a “drinking culture” that surpasses that of other states.

Indeed, “when it comes to drinking, it seems, no state keeps pace with Wisconsin.”21

Wisconsin has led the nation in binge drinking every year since the Centers for Disease

Control and Prevention (CDC) began surveying the issue in the 1980s.22 North Dakota has been

close behind, placing second in eight of the last ten surveys conducted by the CDC.23 The CDC

21 Johnson, supra note 14. 22 See Centers for Disease Control and Prevention (CDC), Prevalence and Trends Data, Alcohol Consumption, 1995 – 2007, apps.nccd.cdc.gov/BRFSS/; Johnson, supra note 14; Wisconsin Tops Again in Drunk Driving, CHI. TRIB., June 23, 1988, at 3M (reporting that Wisconsin was the top state for binge drinking in 1987 for the third straight year). 23 See CDC, supra note 22.

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defines binge drinking as having five drinks in a sitting for a man or four for a woman.24 Figure

1 shows the percentage of respondents admitting to having engaged in binge-drinking in the

previous month for the past ten years, with the four highest states and the national average.

Figure 125

Year First Second Third Fourth Ntnl. Avg.

1995 WI – 23.1% PA/AK – 19.5% NV – 19.1% RI – 18.8% 14.1%

1997 WI – 23.3% SD – 20.9% MI – 18.9% IA/MA – 17.9% 14.5%

1999 WI – 27.0% ND/IL – 19.7% IN – 19.1% MI – 19.0% 14.9%

2001 WI – 25.7% ND – 22.3% MN – 19.6% AK – 18.2% 14.8%

2002 WI – 24.9% ND – 22.0% MN – 21.1% IA – 20.1% 16.3%

2003 WI – 24.2% ND – 21.4% MN – 19.7% IA – 19.4% 16.5%

2004 WI – 21.8% ND – 20.5% MN – 19.8% IA – 19.0% 15.1%

2005 WI – 22.1% ND – 18.9% MN – 18.7% ID – 18.6% 14.4%

2006 WI – 24.3% ND – 21.2% IA – 20.6% IL – 19.3% 15.4%

2007 WI – 23.4% ND – 23.2% IA – 19.9% IL – 19.5% 15.8%

Aside from Wisconsin’s top place every year, it is also notable that the rest of the chart is almost

totally dominated by upper-midwestern states, excepted only by a single appearance of each of

Idaho, Massachusetts, Nevada, Pennsylvania, and Rhode Island, and two appearances by Alaska.

Wisconsin appears ten times, North Dakota eight times, Iowa six times, Minnesota five times,

Illinois three times, Michigan two times, Indiana one time, and South Dakota one time. The span

between Wisconsin and its next closest binge-drinking competitor was greatest in 1999, when

7.3 percent more Wisconsin respondents admitted to binge drinking than North Dakota and

Illinois respondents. And the gap was narrowest in 2007, when Wisconsin took the top place by

only two-tenths of a percent over North Dakota.

24 Johnson, supra note 14. 25 CDC, supra note 22; see also Wisconsin Tops Again in Drunk Driving, supra note 22 (noting that in 1987, nearly thirty percent of Wisconsin residents admitted to binge-drinking in the previous month).

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The Substance Abuse and Mental Health Services Administration (SAMHSA) released a

report in 2008 detailing the results of its annual National Survey on Drug Use and Health.26

SAMHSA asked respondents aged twelve and older if they had operated a vehicle under the

influence of alcohol during the past year. The survey combined data from 2004 to 2006 and

found that 15.1 percent of the nation’s drivers admitted to driving under the influence of alcohol.

More than a quarter of Wisconsin respondents, or 26.4 percent—and more than in any other

state—admitted to drinking and driving. North Dakota was second with 24.9%, followed by

Minnesota (23.5 percent), Nebraska (22.9 percent), and South Dakota (21.6 percent).27 Indeed,

the Milwaukee Journal Sentinel estimates that at least ten percent of Wisconsin’s roughly four

million drivers have at least one DUI conviction.28 And Wisconsin “has a greater number of

drivers with five or more convictions—5,042—than many states with much higher populations

like Massachusetts (4,840) and New Jersey (1,681).”29

Wisconsin ranks near the top of states in terms of the percentage of fatal car crashes in

which alcohol is a factor. In 2007, a driver had a BAC of .08 (the legal limit) or higher in forty-

one percent of Wisconsin fatal car crashes.30 Wisconsin ranks below only North Dakota (forty-

eight percent), Delaware (forty-three percent), and South Carolina (forty-three percent).31

26 Substance Abuse and Mental Health Services Administration (SAMHSA), The NSDUH Report, Apr. 17, 2008, www.oas.samhsa.gov/2k8/stateDUI/stateDUI.pdf. 27 Id. at 2. Further, a CDC study found that Wisconsin had the most respondents admitting to driving after drinking too much in both 1986 and 1987. Wisconsin Tops Again in Drunk Driving, supra note 22. 28 Benson, supra note 11. 29 Jessica VanEgeren, Again and Again and Again and Again; Hundreds of Dane County Residents Have Five or More Drunken Driving Convictions. Donald Wiessinger of Madison is Facing his 10th. A Look at the Revolving Door, CAPITAL TIMES (Madison), Dec. 3, 2008, at 20. 30 National Highway Traffic Safety Administration, Fatality Analysis Reporting System, 2007, http://www-fars.nhtsa.dot.gov/States/StatesAlcohol.aspx. 31 Id.

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Nationally, thirty-two percent of fatal crashes involve alcohol.32 Wisconsin had 756 deaths in

car crashes in 2007—313 where the driver was alcohol impaired.33 By contrast, Minnesota,

which has roughly the same population as Wisconsin, had 504 deaths and roughly half as

many—158—involved an alcohol impaired driver.34 Further, most of the fatal crashes where

alcohol is a factor in Wisconsin involve first-time offenders, contrary to the national statistics,

which show repeat offenders as those most responsible for fatal car crashes.35 Given that

Wisconsin is the only state not to treat a first offense of drunk driving as a crime, this anomoly

suggests a possible connection between the criminalization of the first offense and a driver’s

incentive not to drive drunk. Indeed, drunk driving deaths nationwide have decreased by about

one-third since the early 1980s, but only by twenty percent in Wisconsin.36

Wisconsin has the highest percentage of drinkers in its population,37 its residents

consume the most brandy and vodka of any state,38 and it has the fifth highest beer consumption

in the nation.39 The state also has three times as many taverns per capita as the national

average.40 The Milwaukee Journal Sentinel analyzed phone book listings for bars in Appleton,

Wisconsin, with its population of 70,000, and found that it listed more bars than in Forth Worth,

32 Id. 33 Id. 34 Id. 35 Elbow, supra note 15. 36 Rick Romell, Drinking Deeply Ingrained in Wisconsin’s Culture, MILWAUKEE J. SENTINEL, Oct. 19, 2008, http://www.jsonline.com/news/wisconsin/31237904.html. 37 Id. 38 Id. A newspaper report from 1986 indicated that Wisconsin was the top brandy consumer then as well. Janet Bass, Beer-Drinking Wisconsin, UNITED PRESS INT’L, Sept. 1, 1986. 39 Annual Alcohol Consumption, TIME, 2007, http://www.time.com/time/2007/america_numbers/alcohol.html; Romell, supra note 36; Bass, supra note 38 (noting that Wisconsin was in the top five states for beer consumption in 1986). 40 Romell, supra note 36.

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Texas; Memphis, Tennessee; or Sacramento, California.41 Indeed, Wisconsin has issued the

most liquor licenses of any state.42

Despite this apparent affinity for alcohol, there is evidence that the citizens of Wisconsin

are not as forgiving of drunk driving as the state’s relatively lax laws might suggest. A 1993

survey conducted by the Wisconsin Survey Research Laboratory found that seventy-one percent

of state respondents approved of sobriety checkpoints, while twenty-five percent disapproved.43

Sixty-two percent of respondents knew someone who had been charged with a drunk-driving

offense, while forty percent knew someone who had been involved in an accident where alcohol

was a factor.44 The survey indicated that those who knew someone who had been charged with a

drunk-driving offense were less likely to support sobriety checkpoints.45 Despite the support for

checkpoints, fifty-two percent of respondents in 1993 thought the state’s drunk-driving laws

were fair; thirty-eight percent found them too lenient.46 This support existed despite that fact that

in 1993, the fifth offense of drunk driving was not yet a felony in Wisconsin.47 The survey found

a gender difference—women were eight percent more likely than men to find the laws too

lenient.48

Together, all of these statistics indicate that Wisconsin’s famed “drinking culture” is

indeed a reality. The Oshkosh Northwestern ran an op-ed in 2005 calling the state’s culture “a

41 Id. 42 Johnson, supra note 14. 43 Nina Sines, University of Wisconsin Law School Resource Center on Impaired Driving, A Report on the 1993 Checkpoint Public Opinion Survey, No. 94-2, Mar. 1994, http://www.law.wisc.edu/rcid/reports/report0394.html. 44 Id. 45 Id. 46 Id. 47 See Robert Paolino, Wisconsin Legislative Reference Bureau, Changes in Wisconsin’s Drunk Driving Laws, No. 99-1, Jan. 1999, www.legis.state.wi.us/LRB/pubs/Lb/99Lb1.pdf. 48 Sines, supra note 43, at n.13.

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sick bastion of alcohol abusers,” noting that even the churches are affected—“[b]eer must flow

liberally so the church festival gets good attendance.”49 And Dr. Robert Golden, dean of the

University of Wisconsin medical school, has called the state an “island of excessive

consumption.”50 Wisconsin’s drunk driving laws are certainly not lax because the state does not

face an alcohol problem on its roads.

While the legal academic literature is silent on the history behind Wisconsin’s alcohol

laws and the influence of lobbying organizations, there has been commentary on the problem

from scholars—with particular attention in state newspapers in recent years. In identifying the

cause of Wisconsin’s heavy drinking, “[c]onventional wisdom points to [the state’s] German-

ness . . . [b]ut the German/brewing connections, while cited by many, are at least open to

question.”51 German immigration to Wisconsin largely ended over one hundred years ago,

though forty-three percent of Wisconsinites claim German ancestry, second to the state’s top

drinking rival—North Dakota.52 But this heritage helped form a collective identity that one

scholar likens to “‘a reconfiguration of European peasant cultures’ . . . [that created a] statewide

loyalty to beer—almost a feeling that if you’re from Wisconsin you should drink it.”53 Professor

Paul Moberg, a University of Wisconsin Population Health Institute scientist cites the state’s

history with alcohol. “‘It has to do with Badger pride. . . . We’ve got a long-standing tradition of

heavy alcohol use.”54

49 Op-ed, Wisconsin Culture a Sick Bastion of Alcohol Abusers, OSHKOSH NORTHWESTERN, Sept. 4, 2005. 50 Johnson, supra note 14. 51 Romell, supra note 36. 52 Id. 53 Romell, supra note 36 (noting the views of University of Wisconsin folklorist, Professor James P. Leary). 54 Julia Bair, Health Leaders Respond to Drinking Issues, BADGER HERALD, Apr. 24, 2008, http://badgerherald.com/news/2008/04/24/health_leaders_respo.php.

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Moberg also cites the state’s culture. “‘It has something to do with the culture of

Wisconsin and what the shared expectations are of behavior.’”55 Jerry Apps, a Wisconsin

historian who wrote a book on state breweries cites the historical importance of breweries to the

social interaction of the early German immigrants.56 But University of St. Thomas German

Professor Paul Schons has expressed doubt—noting that all Europeans are known for drinking

various types of alcohol.57 Likewise, Jack Holzhueter, a retired historian formerly with the

Wisconsin Magazine of History, has expressed doubt that German identity can explain today’s

drinking problem, given the generations that have passed.58 In its 2008 series Wasted in

Wisconsin, the Milwaukee Journal Sentinel cited the state’s cold climate, the economic

importance of the state’s brewing industry, the need for identity, and the relative lack of

newcomers to the state as possible additional explanations to the drinking problem.59 While the

cultural account may explain the genesis of the drinking problem in Wisconsin and other German

states, such as North Dakota, it alone cannot explain the lax nature of Wisconsin drunk driving

laws, given that other German states do not have similar laws. Here again, the scholarly

literature does not contain an analysis of why Wisconsin’s laws differ, or a comparison to its

neighbor states, but the Milwaukee Journal Sentinel piece discusses the influence of the Tavern

League and its accumulated power in its discussion of the legislature’s hands-off approach.60

55 Rick Romell, Admitted Drunken Driving Leads Nation; Wisconsin’s Culture of Alcohol Seen as Factor, MILWAUKEE J. SENTINEL, Apr. 22, 2008, http://www3.jsonline.com/story/index.aspx?id=742584. 56 State of Drinking, Post-Crescent (Appleton, WI), Aug. 14, 2005, 57 Id. 58 Romell, supra note 36. 59 Id. 60 See Steve Walters & Tom Daykin, Wasted in Wisconsin; Tavern League’s Turf: Grass Roots; By Focusing on Key Issues, Lobbying Group Keeps Capitol on Bar Owners’ Side, MILWAUKEE J. SENTINEL, Oct. 22, 2008, at A1.

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II. Wisconsin and Alcohol—German Influence and Prohibition Politics

A. Wisconsin: German State “Par Excellence”61

The 1850 census reported that twelve percent of Wisconsinites—38,000 people—were

German.62 During that decade, the German-born American population grew by roughly 119

percent, while the number was about 225 percent in Wisconsin.63 By the time of World War I in

1914, “a clear majority of Wisconsinites were of German origin or background . . . [making it] a

German state.”64 The sharp rise in German immigration was prompted initially by the

Revolution of 1848 in Europe, with the failure of German “intellectuals” to unify the country and

achieve democracy, religious freedom, and greater individual liberty.65 These political

refugees—known as the forty-eighters—left Germany originally for Switzerland and finally in

large numbers for America, with Wisconsin one of the main destinations.66 The forty-eighters

61 Hildegard Binder Johnson, Adjustment to the United States, in THE FORTY-EIGHTERS: POLITICAL REFUGEES OF THE GERMAN REVOLUTION OF 1848, at 55 (1950) (noting that Wisconsin was the “German state par excellence” but had not sent a German-born Senator to Washington at the time of the 1848 German immigration to the state). 62LA VERN J. RIPPLEY, THE IMMIGRANT EXPERIENCE IN WISCONSIN 5 (1985). 63 CARL WITTKE, REFUGEES OF REVOLUTION 43 (1952). 64 RICHARD NELSON CURRENT, WISCONSIN 38 (1977). 65 See generally WITTKE, supra note 63, at 18-28 (describing the failure of the 1848 revolutionaries in Europe and Germany to overcome the influence of the monarchs); Carl J. Friedrich, The European Background, in THE FORTY-EIGHTERS: POLITICAL REFUGEES OF THE

GERMAN REVOLUTION OF 1848, at 3-25 (A.E. Zucker ed., 1950) (recounting the history of the revolution and the reasons for its failure); Op-Ed, Drunk Driving, No—Civil Liberties, Yes, The Capital Times (Madison), Feb. 4, 2009, at 29 (“Wisconsin attracted more than its share of dissenters from the strict moralizing of the monarchs and religious leaders of old Europe. The German ‘48s, who had plotted revolution in the beer halls of Hamburg and Munich, were forced to flee, and made their way to the state that formally entered the Union in 1848.”). 66 See WITTKE, supra note 63, at 27, 43; see also Friedrich, supra note 65.

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were largely humanists, and many were even atheists,67 and their strong belief in “personal

liberty” led to the group’s near unanimous opposition to the temperance movement.68

What Germans mean when they defended their “personal liberty” to drink beer was clear, and there can be no doubt about the unanimity of the German element on this issue. Opposition to “temperance legislation” cut across all party and class lines, and was an important issue in local and national campaigns for several decades. Forty-eighters helped make the freedom of man and “the freedom of lager” synonymous terms in the minds of many Americans. . . . Champions of the working class made the additional point that taverns and workers’ halls where beer was served were the only clubs where the underprivileged could develop a well-rounded “German social life.”69

Indeed, as German immigration increased, beer became an important part of the

Wisconsin—and more specifically the Milwaukee—identity. German brewers established

taverns and beer gardens throughout the city. Milwaukee became known for its German

breweries, with about fifteen breweries before the Civil War, at a time when most non-German

Americans did not drink much beer.70 Milwaukee’s Pabst Brewing Company was the largest in

the country by 1872, and Milwaukee was the West’s largest beer-exporter.71 Indeed, liquor was

67 Friedrich, supra note 63, at 20-21 (noting that the typical forty-eighter “was a humanist in the more militant sense in that he was opposed to conventional religious views concerning man’s otherworldly commitments”). 68 WITTKE, supra note 63, at 141. 69 Id.; see also LA VERN J. RIPPLEY, THE GERMAN AMERICANS 52 (1976) (noting that the forty-eighters “opposed fundamentalist religious groups who tried to enact state and local laws for Sunday closing and fought tirelessly against the prohibition of alcoholic beverages”). 70 See CURRENT, supra note 64, at 90; see also Robert C. Nesbit, WISCONSIN: A HISTORY 278 (1973) (“Brewing and malting were pioneer industries in Milwaukee and elsewhere in Wisconsin . . . . The Civil War helped to convert the Yankees and other ethnic groups to beer drinking, as distilled liquor was forced to bear a war tax which rose to $2 a gallon. Milwaukee brewers doubled their output during the war . . . .”). 71 Frederick Merk, Economic History of Wisconsin During the Civil War Decade, in 1 PUBLICATIONS OF THE STATE HISTORICAL SOCIETY OF WISCONSIN 155 (Milo M. Quaife, ed., 1916). The great Chicago fire of 1871, which destroyed many of that city’s breweries, contributed to the economic success of the industry in Milwaukee. Id. at 155, n.1. Indeed, Milwaukee breweries increased their sales by forty-four percent the year after the Chicago fire.

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the “‘living bread’” to the Germans in Wisconsin.72 “More than simply places to obtain

inexpensive beer, the taverns and beer gardens helped create a sense of community by bringing

together Germans from across the economic, regional, and political divisions that normally

separated them.”73 And they became a place for political organizing—by 1902, one-third of

Milwaukee’s alderman owned saloons.74 The socialists in particular used saloons as places for

political organizing, which could not really be done during the workday.75 The German culture

and the production and consumption of sale became synonymous with Milwaukee. By 1900, the

production of liquor was the sixth largest industry in Milwaukee.76

B. Prohibition Part One

The German beer culture that was quickly developing in Wisconsin had a temporal

companion—the steady growth of the temperance movement in America. The American

Temperance Society was founded in Boston in 1826 and by 1848, Wisconsin had over three

hundred members in its temperance society, the Sons of Temperance.77 In 1849, the legislature

passed and the governor signed a bill making sellers of liquor liable for damages caused to the

community or to individuals that result from such sale.78 This bill was introduced after the Sons

72 RIPPLEY, supra note 69, at 109. JUSTUS F. PAUL & BARBARA DOTTS PAUL, THE BADGER

STATE: A DOCUMENTARY HISTORY OF WISCONSIN 259 (1979). 73 Timothy Bawden, A Geographical Perspective on Nineteenth-Century German Immigration to Wisconsin, in WISCONSIN GERMAN LAND AND LIFE 84 (Heike Bungert, Cora Lee Kluge & Robert C. Ostergren, eds., 2006). 74 Elizabeth Jozwiak, Bottoms Up: The Socialist Fight for the Workingman’s Saloon, 90, no. 2 WIS. MAG. OF HIST. 14 (Winter 2006-07). 75 Id. (“The Milwaukee [socialists] also found neighborhood saloons to be convenient places for branch meetings. Men were accustomed to talking about political issues, and, according to party leader Victor Berger, this helped the [socialist’s] organizing efforts. 76 PAUL & PAUL, supra note 72, at 232. 77 JERRY APPS, BREWERIES OF WISCONSIN 60 (1992). 78 Joseph Schafer, Prohibition in Early Wisconsin, in 8, no. 4 WIS. MAG. OF HIST. 283 (1925). The new bill provided that retailers “post a bond of $1,000 to pay all damages that the

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of Temperance gained traction statewide under the leadership of state Senator John B. Smith, and

at a meeting after the passage of the legislation, the group toasted the legislature, saying: “‘They

washed out a multitude of sins by the act making dealers in spirituous liquors responsible to their

victims and to the community for all damages caused by the sale of their poisonous drugs.’”79

Attempts led by German legislators to repeal the bill the next year failed; instead the legislature

strengthened it.80

The Sons of Temperance had gained in prominence and power in the year since the

original bill passed, and exerted influence in the passage of the strengthened bill.81 Senator Fred

Horn, who had introduced the bill to repeal the law, expressed his views by way of a sarcastic

“amendment” proposal to the bill that eventually passed:

Every and all persons who for the space of twenty-five years and upwards have been steady drinkers in every part of the globe, and by that means may have accomplished their ruin and poverty be degrees and who shall find their way into this state with but one sixpence in their pockets, if that sixpence is paid for liquor, the person so giving or selling the liquor to such person shall support all the orphans and the widow of the man who spent his last sixpence with him; and such liquor vendor shall not be allowed to prove that the ruin of such person has been accomplished years ago, and in other countries, but the words of the law “justly attributable to such traffic” shall cover all cases of this kind.82

community or individual might sustain by reason of their vending liquors, to support all paupers, widows, and orphans made or helped to be made by said traffic, and to pay the expenses of all prosecutions growing out of or attributable to their selling.” ANTI-SALOON LEAGUE, 5

STANDARD ENCYCLOPEDIA OF THE ALCOHOL PROBLEM 2886 (Ernest H. Cherrington, ed., 1925-30). The strengthened legislation was repealed the next year, replaced by a regular licensing law. CURRENT, supra note 64, at 46. 79 Schafer, supra note 78, at 282-84. 80 Id. at 284-85. 81 Id. at 284. 82 Id. at 285 (citing Wis. Sen. J., 1850, Proceedings for Jan. 21 & 22, 1850).

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German reaction to the legislation was strong—in Milwaukee, a mob of Germans rioted

at the home of Senator John Smith, chief sponsor of the bill, breaking his windows and

destroying other items in his home.83

In 1853, the legislature voted to have a statewide referendum on whether the state should

pass what had become known as a “Maine Law”—a statute to prohibit the manufacture and sale

of alcohol.84 Predictably, the Yankee parts of the state voted strongly in favor, while the German

areas, particularly Milwaukee, voted strongly against the measure.85 The prohibitionists took the

majority by a relatively slim vote of 27,519 (fifty-three percent) to 24,109 (forty-seven

percent).86

The assembly passed legislation enacting a Maine law in 1854, but the Senate blocked

the bill, prompting a newspaper editor to comment: “‘Perhaps the legislature are [sic] waiting to

have the people talk in German upon this question.’”87 At the time, the State Immigration

Commissioner sent a letter to the Governor advising against the enactment of a Maine law: “‘If

our state should also enact such a law it would not only stop emigration to a considerable extent

but also erase its reputation as one of the most enlightened states of the union.’”88 Both houses

of the legislature finally passed a prohibition bill in 1855 as a result of the statewide referendum,

at a time when nearly every other northern state had enacted a prohibition bill.89 But Democratic

83 Id. at 286. 84 Id. at 295. By 1855, thirteen states had a adopted a Maine law: Massachusetts, Vermont, Minnesota Territory, Rhode Island, Michigan, Connecticut, Indiana, New Hampshire, Delaware, Iowa, New York, and Nebraska Territory. FRANK E. ZIMRING & GORDON HAWKINS, THE

SEARCH FOR RATIONAL DRUG CONTROL 54 (1992). 85 Id. 86 Id. at n.19. 87 PAUL & PAUL, supra note 72, at 185. 88 BUNGERT, KLUGE & OSTERGREN, supra note 73, at 100, n.15. 89 Schafer, supra note 78, at 296. The Temperance League, in response to German arguments against the legislation, published an article stating: “‘It does not lessen the desire for a Maine law

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Governor William Barstow, who had previously agreed to sign a prohibition bill so long as it

was constitutional, vetoed the legislation, citing his constitutional objections.90 The legislature

tried again, and the governor again vetoed—saying that the legislation allowed for unreasonable

searches and seizures of private property.91

By this time, the power of the Sons of Temperance had waned significantly—and their

ability to control the state legislative process in Wisconsin fell apart. The 1849 and 1850

liability laws were replaced by a regular licensing law92 and many churches in the state began to

oppose the Sons, fearing its secretive nature.93 Further, the national organization of the Sons had

banned the admission of black citizens to the local organizations, causing many abolitionist

prohibitionists in Wisconsin to give up their charters.94 When the Sons tried to maintain the

1850 liability law, they lost in the legislature. “[I]nstead of coming to the legislature in the

character of successful crusaders, . . . they came in 1851 with some of the aspects of a defeated

and bedraggled army.”95 The temperance legislation in Wisconsin in the 1850s rose and fell with

the fate of the Sons of Temperance. While a state prohibition referendum passed, it did so with a

narrow majority and with the politically important German population voting resoundingly

against it. Without the political pressure of the Sons of Temperance, the legislature backed away

from the prohibition cause.

to live near a ‘Bier Halle’ and band of music every Sabbath. Let the Germans respect our customs if they want us to respect theirs.’” Id. at n.20; see also PAUL & PAUL, supra note 72, at 189. 90 PAUL & PAUL, supra note 72, at 189. 91 Id. at 190. The legislature failed to override the veto on both attempts. Id. 92 CURRENT, supra note 78. 93 Schafer, supra note 78, at 293. 94 Id. at 294. 95 Id. (noting that the legislature “felt itself free” to vote as it wished with the political power of the Sons of Temperance having subsided).

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C. Prohibition Part Two: Twentieth Century Prohibition Politics in Wisconsin

The Wisconsin Anti-Saloon League was founded in 1898—though prohibition fervor did

not take the state until the beginning of World War I.96 The League “was one of the most

powerful reform lobbies this country has ever known . . . .”97 The Wisconsin Brewer’s

Association certainly fought the League, but with limited success.98 And the populace, which

was governed under a local control law, was apparently not too occupied by the need for

prohibition—in 1905 eleven percent of Wisconsin was dry, though that figure rose to forty-five

percent—still less than a majority—by 1916.99 The Brewer’s Association had a small victory in

1917 when Governor Emmanuel Philipp vetoed a measure passed by the state legislature to ban

the “sale, disposal, and importation of liquor for beverage purposes . . . .”100 The governor

argued that the bill was unnecessary as a war measure—stating that the war would be over by the

time the bill could have any effect on the food supply and that it would have too negative an

effect on the state’s brewing industry.101 The Anti-Saloon League launched a scathing attack on

the Philipp, accusing him of “‘vetoing democracy’ and label[ing] his action the act of ‘an

Emperor, a Caesar, a Kaiser.’”102 It distributed leaflets accusing the brewing industry of wasting

resources in a time of war, stating “‘[s]hall we give up everything but booze to win the war?’”103

And the League took advantage of anti-German sentiment during the war by equating the

breweries with disloyalty—calling beer the “kaiser brew”—and campaigning during the 1918

96 Jeffrey Lucker, The Politics of Prohibition in Wisconsin 1917-1933 (Jan. 19, 1968) (unpublished M.A. thesis, University of Wisconsin) (on file with author). 97 APPS, supra note 77, at 69. 98 See id. 99 PAUL & PAUL, supra note 72, at 422. 100 Lucker, supra note 96, at 3-6. 101 Id. at 6-7. Most state newspapers reacted negatively to the governor’s veto, accusing him of having a corrupt relationship with the state’s brewers. Id. at 8. 102 Lucker, supra note 96, at 9. 103 Id. at 11.

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legislative elections that “‘[a] vote for a pro-saloon state senator is a vote against winning the

war.’”104

The League spent $67,000 during the 1918 campaign in preparation for Wisconsin’s vote

on ratification of the Eighteenth Amendment.105 Its efforts paid off when the Wisconsin became

the thirty-ninth state to ratify the Amendment on January 16, 1919—notably after enough states

had already ratified the amendment for it to take effect.106 Prohibition meant the closure of 9,636

saloons and 136 breweries in Wisconsin.107 At the Anti-Saloon Leagues National Convention in

June 1919, R.P. Hutton, Superintendent of the Wisconsin Anti-Saloon League, gloated about his

organization’s accomplishment:

We used a million book pages of literature per month; twelve million a year. We put on a country schoolhouse campaign. We put factory experts to speak in the factories, and got the companies to pay the men for listening. We built up a Council of One Thousand to back us—business and labor leaders who opened the factors [sic]. We enlisted the Hemlock-Hardwood Lumber Association in its entirety. We sold the factories billboards and posters which were changed bi-weekly, and a monthly educational scientific tract in tabloid form which went into the pay envelope. We organized the drys of every county. We helped to select dry legislative candidates who could get votes. We listed the two-thirds of our voters who habitually fail to vote in the primary; divided them into blocks of five, put a dry corporal over each five, and got 138,000 of these stay-at-homes to the polls on the primary day . . . . We staged the biggest demonstration in Madison the state has ever seen.108

Governor Philipp supported a measure to make beer and light wines legal, which the

legislature passed and put to a statewide referendum, with a measure added with the Anti-

104 Id. at 13. 105 PAUL & PAUL, supra note 72, at 422. 106 The Anti-Saloon League Yearbook 155-56 (1919) reprinted in PAUL & PAUL, supra note 72, at 423. The state assembly ratified the Amendment by a vote of fifty-eight to thirty-five the day after the state senate did so by a vote of nineteen to eleven. Id. 107 Id. at 424. 108 R.P. Hutton, A Sober World, Proceedings 19th National Convention of the Anti-Saloon League of America, Washington, D.C. 322 (June 3-6, 1919) reprinted in PAUL & PAUL, supra note 72, at 425-26.

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Saloon League’s support that stated that if the Supreme Court ruled that the federal definition

of “intoxicating” liquor was deemed supreme, the state would follow that definition.109 The

Supreme Court ruled in June 1920 that the federal definition was supreme, which made the

Wisconsin referendum largely moot.110

The 1920 elections brought a new Governor—John Blaine—an election that would be

the beginning of the state’s move toward anti-prohibition agitation.111 When prohibition

enforcement legislation that the Anti-Saloon League had lobbied through the legislature

reached his desk, Governor Blaine vetoed it and had harsh words for the League, with whom

his relations had soured:

“I cannot blink at the fact which is of public notoriety—that a dictatorial lobby drew the bill, had it presented and demanded its passage without change; that the lobby bludgeoned members into acquiescence by a vicious propaganda of misrepresentation and through appeal to prejudice . . . Without that lobby a good bill no doubt would have reached me.”112

In 1921, the state legislature passed and Blaine signed the Severson Act, which allowed

for home brewing, physician’s prescriptions and provided for first offense punishment of a fine

of $100 to $1,000 or one to six months’ imprisonment and second offense punishment of a fine

of $200 to $2,000 and imprisonment of one-month to one year.113

109 ANTI-SALOON LEAGUE, supra note 78, at 2884; Lucker, supra note 96, at 16-21 110 National Prohibition Cases, 253 U.S. 350, 387-88 (1920). The referendum, which after the Supreme Court’s decision garnered the support of the Anti-Saloon League, passed by a vote of 419,209 to 199,876. Lucker supra note 96, at 21. Given the Anti-Saloon League’s endorsement, it is difficult to ascertain any meaning to the vote. While it was a measure to legalize beer and light liquor, it would seemingly be wrong to find in its overwhelming passage empirical evidence that the residents of the state supported its legalization. Though, as Lucker notes, the League conducted an extensive “educational” campaign in the lead-up to the Court’s decision and the referendum vote out of “fear that the state would vote wet in the referendum . . . .” Id. at 17. 111 Id. at 27. 112 Id. at 37 (citing the Wis. Assembly J., May 27, 1921). 113 ANTI-SALOON LEAGUE, supra note 78, at 2884. The Severson Act passed the state assembly by a vote of fifty-one to thirty-five. Lucker, supra note 96, at 42. Note the difference in

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It was not long after the Severson Act was enacted that support started to grow for its

repeal. In October 1921, the Milwaukee Board of Supervisors unanimously passed a resolution

that called for the legalization of light wine and beer and in March 1922, Dr. J. J. Seelman

formed the Wisconsin Anti-Prohibition Association, whose power would slowly climb as the

Anti-Saloon League’s power waned.114 Throughout the entire Prohibition debate leading up to

its repeal, the main national association actively organized in only two states—Massachusetts

and Wisconsin.115 This statewide organization was effective; by 1922 there was a dry majority

of one vote in the state assembly116 and the 1922 elections saw the landslide reelection of

Governor Blaine and a state assembly that favored beer and wine by sixty to forty votes and a

dry majority of one vote in the state senate.117 The election was a major victory for the

Wisconsin Anti-Prohibition Association. Indeed, the federal government took notice of the

situation in Wisconsin, and declared the state “the hardest field for Prohibition enforcement.”118

By 1926, Blaine had won election to the United States Senate, defeating Wisconsin’s dry

senator, and the state had voted in a referendum to allow for the sale of beer of 2.75 percent

alcohol.119 The state legislature passed legislation in 1927 to repeal the penalties for possession

punishment between the punishment for violations of the prohibition enforcement statute, which provided for the possibility of imprisonment for the first offense, and the modern day penalty for a first offense of drunk driving in Wisconsin, which is simply a civil forfeiture with no imprisonment. See supra Part I. 114 Lucker, supra note 96, at 45-48. 115 DAVID E. KYRIG, REPEALING NATIONAL PROHIBITION 117 (2000). 116 Id. at 54. 117 Id. at 56-57. 118 ANTI-SALOON LEAGUE, supra note 78, at 2887. 119 Lucker, supra note 96, at 99; ANTI-SALOON LEAGUE, supra note 78 at 2884. The voters favored the return of beer and light wine by a vote of 349,433 (sixty-six percent) to 177,602 (thirty-four percent). Id.

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of 2.75 percent beer, but Governor Zimmerman vetoed the measure on the grounds that it would

“nullify a law of the United States.”120

The Wisconsin Anti-Prohibition Association’s power only increased—by 1929, there was

a statewide referendum to repeal the Severson Act and leave the state without any enforcement

mechanism.121 The referendum passed by a vote of 350,337 (sixty-four percent) to 196,402

(thirty-six percent) and Governor Kohler signed a bill passed by the legislature to implement the

will of the people, leaving the state without any enforcement legislation for prohibition.122

In his 1929 report on the state of Prohibition enforcement in Wisconsin as part of the

Wickersham Commission, Frank Buckley of the federal Bureau of Prohibition described the state

as “commonly viewed as the Gibralter of the wets—sort of a Utopia where everybody drinks

their fill and John Barleycorn still holds forth in splendor.”123 Buckley noted that enforcement of

liquor laws by Wisconsin officials was lax.

Most . . . officers . . . are personally honest and possess a keen sense of duty with respect to all matters in their line but liquor. In most instances, whatever personal convictions they may possess are submerged in the very human desire to retain their jobs, and the prime requisite in that case, in most Wisconsin municipalities, is a hands-off liquor policy.124

120 ANTI-SALOON LEAGUE, supra note 78, at 2884; see also Lucker, supra note 87, at 101 (“Although Assemblyman John D. Baker labeled the bill ‘almost equal to secession.’ The measure passed the Assembly by the large majority of 57 to 29 . . . [and in the senate] by a vote of 17 to 14 . . . .”). Efforts to override Governor Zimmerman’s veto failed. Id. at 105. 121 See ANTI-SALOON LEAGUE, supra note 78, at 2884; Lucker, supra note 96, at 122. 122 Lucker, supra note 96, at 122-23. The state assembly passed the legislation by a vote of fifty-six to thirty-three, while the senate passed it by a vote of twenty-one to nine. Id. 123 Frank Buckley, Enforcement of the Prohibition Laws: Official Records of the National Commission on Law Observance and Enforcement, vol. 4, 1097 (1931), http://www.wisconsinhistory.org/turningpoints/search.asp?id=1273. 124 Id. at 1110

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Responding to the Great Depression, the Congress passed the Twenty-first Amendment

in December 1932 to repeal the Eighteenth Amendment.125 The Amendment was introduced in

the United States Senate by Wisconsin Senator Blaine, and Wisconsin became the second state

after Michigan to ratify the Amendment by state convention, where pro-repeal delegates had

captured eighty-two percent of the state vote.126 Wisconsin was the first state to vote

unanimously for repeal—one delegate dissented at the Michigan convention, which took place

ten days before Wisconsin’s.127 The Governor’s address to the constitutional convention

delegates was brief, and only vaguely suggested his approval for the Amendment’s ratification

by noting that “the citizens of Wisconsin have expressed in unmistakable terms the longing in

their hearts to see in this gathering the partial fulfillment of their desires.”128

On April 7, 1933, “one hundred thousand people turned out on the streets of Milwaukee .

. . to welcome the return of beer.”129 The thirty-sixth state ratified the Twenty-first Amendment

in December 1933, ending Prohibition.130 The Prohibition era in Wisconsin demonstrates the

political influence of powerful interest groups—and their ability to drive public support. Both

the Anti-Saloon League and the Wisconsin Anti-Prohibition Association had powerful moments

that provide an interesting analogue to the Wisconsin Tavern League, which was formed in 1935,

just two years after Prohibition ended. Indeed, the Wisconsin Anti-Prohibition Association

likely provided the initial network on which the Wisconsin Tavern League was formed. Since

anti-prohibition groups were active only in Massachusetts and Wisconsin, other Midwestern

125 Id. at 130. 126 RIPPLEY, supra note 62, at 128. 127 RATIFICATION OF THE TWENTY-FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED

STATES: STATE CONVENTION RECORDS AND LAWS 214, 230, 491, 496 (1938). 128 Id. at 494. 129 Lucker, supra note 96, at 132. 130 Apps, supra note 77, at 75.

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states with similar drinking habits to Wisconsin, like North Dakota and Minnesota, did not have

the existing network after Prohibition to form a tavern league. This may explain why the

Wisconsin group is so powerful and why North Dakota, for example, does not have such a

lobbying organization, and why Minnesota’s did not form until 2000. The next two Parts of this

paper explore the power and influence of the Wisconsin Tavern League in modern times.

III. A Nation Gets MADD: The Crackdown of the 1980s and 90s

A 1982 Newsweek article quoted a legal reformer as calling drunk driving “America’s

‘socially accepted form of murder.’”131 From 1980 to 1982, more Americans were killed in

alcohol-related accidents than had been killed in the Vietnam war, and at the time, the National

Highway Traffic Safety Administration estimated that up to ten percent of weekend night drivers

were intoxicated.132 In 1981, Time reported that a person was killed by a drunk driver in the

United States every twenty-six minutes—more than 26,000 people per year.133 “Yet a drunk

driver [was] rarely arrested, and the possibility of stiff punishment [was] remote.”134 A 1982

Newsweek article noted that “judges, juries, prosecutors and legislators, most of whom drink

socially, have tended to view the drunk driver with ‘there but for the grace of God, go I’

sympathy.”135

In 1980, Candy Lightner, a California real estate agent, quit her job and formed Mothers

Against Drunk Drivers (MADD) after her thirteen year old daughter was “struck from behind

131 Mark Starr, et al., The War Against Drunk Drivers, NEWSWEEK, Sept. 13, 1982, at 34. 132 Id. 133 They’re MADD as Hell; A Growing Protest Against the Soft Treatment of Drunk Drivers, TIME, Aug. 3, 1981, at 64. 134 Id. 135 Starr, supra note 131.

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and killed by a hit-and-run driver as she walked to a church carnival.”136 MADD “[gave] the

public outcry against drunk driving the constituency it [had] always needed—victims.”137

MADD held its first national press conference later that year with government officials, “putting

the drunk driving issue and the organization on the nation’s radar screen.”138 Another group,

Remove Intoxicated Drivers (RID), formed in New York and pushed the state legislature there to

require a $350 fine for the first drunk driving offense.139 Before that law passed, the founder of

RID noted that “‘each drunk driver in New York paid, on the average, a $12 fine, while those

who killed a deer out of season had to pay $1,500.’”140 In Maryland, the arrest rate for drunk

driving rose 109% and MADD grew from two chapters at its inception to twenty-five in five

states.141 Between 1970 and 1986, drunk driving arrests increased by 223 percent and one out of

every thirty-nine licensed drivers age twenty-one were arrested for drunk driving.142 Despite the

growing awareness of the drunk driving problem, a California motor vehicle official in 1982

noted that “‘we still laugh at Charlie driving home drunk and just barely missing someone, rather

than considering it a shocking thing.’”143 Still though, a 1982 Gallup poll found that seventy-

seven percent of Americans favored mandatory prison sentences for first-time offenders.144

136 Id. 137 Id. 138 Mothers Against Drunk Driving, MADD Milestones, http://www.madd.org/getdoc/cb478744-50e3-474b-b2be-80b9f13665d1/MADD-Milestones---English.aspx 139 They’re MADD as Hell, supra note 133. 140 Id. 141 Id. By 1982, MADD had eighty-three chapters in twenty-nine states. Liebschutz, Sarah F., The National Minimum Drinking-Age Law, 15 PUBLIUS: THE J. OF FEDERALISM 39, 41 (1985). 142 Ray McCallister, Ray, The Drunken Driving Crackdown: Is it Working?, 74 A.B.A.J. 52 (1988). 143 Bennett Beach, Is the Party Finally Over?; Crackdown on Drunken Drivers Raises Hopes—and Doubts, TIME, Apr. 26, 1982, at 58. 144 Starr, supra note 131.

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The federal government responded to the growing concern in April of 1982 when

President Reagan formed a thirty-member “Presidential Commission on Drunk Driving charged

with the task of encouraging ‘[s]tate and local governments as well as the private sector to

implement programs that will reduce the carnage caused by the drinking driver on our

roadways.’”145 The Commission released its final report in 1983, with a series of

recommendations for state action on public awareness, increased penalties, and increased

enforcement funding.146 Most significantly, the report recommended federal legislation

requiring states to enact a minimum drinking age of twenty-one years and for the withholding of

discretionary federal highway construction funds to states that did not enact the twenty-one year

old minimum drinking age.147

After Prohibition, most states set their minimum drinking ages at twenty-one.148 Until

1985, Wisconsin’s minimum drinking age had been eighteen since 1839—nine years before

becoming a state (except for the brief Prohibition period).149 In 1981, Wisconsin was one of only

nine states to have its minimum drinking age for all types of alcohol at eighteen, and the only

state to have no minimum drinking age for consumption of beer if his or her parent accompanied

the minor.150

145 Liebschutz, supra note 141. 146 Id. The Commission’s report did note that states had already begun to respond to the crisis—thirty-nine states had passed tougher drunk driving laws in the year prior to the report’s release. Peter Grier, Report Says Attitudes, Not Laws, are Key to Curbing Drunk Driving, CHRISTIAN

SCIENCE MONITOR, Dec. 14, 1983, at 3. 147 Id. 148 Henry Wechlser & Edward S. Sands, Minimum –Age Laws and Youthful Drinking: An Introduction, in Minimum-Drinking-Age Laws 1 (Henry Wechsler, ed., 1980). 149 See id. at 2; Enstad, supra note 17. 150 National Highway Traffic Safety Administration, Alcohol and Highway Safety Laws: A National Overview. 1981, in 74 CRIMINAL AREA PAMPHLETS No. 11, 76-77.

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While Wisconsin long had its minimum drinking age at eighteen, the national move to

lower the drinking age from twenty-one occurred in the early 1970s.151 During the Vietnam

War, when eighteen year old men were being drafted for war, the Twenty-sixth Amendment was

ratified, lowering the voting age to eighteen.152 These moves were followed by a broader

perception change nationwide, with “[i]ssues of fairness and equity guid[ing] the debate . . . .”153

Many argued that people who were conscripted to fight for their country should also be treated as

adults and allowed to consume alcohol. Between 1970 and 1975, twenty-nine states reduced

their drinking ages.154

The move toward recognition of adulthood did not last long—states saw their drunk

driving deaths among young drivers surge.155 In New Jersey, the average number of persons

killed per year by eighteen to twenty year old drivers increased by 176 percent after the state

lowered its drinking age.156 In Michigan, the number of alcohol-related accidents jumped by

more than 100 percent within six months of the lowered drinking age becoming effective.157 In

Wisconsin, the alcohol-related crash involvement of eighteen and nineteen year old drivers was

151 Wechsler & Sands, supra note 148, at 2; Nina Sines & John Ekman, University of Wisconsin Law School Resource Center on Impaired Driving, The Minimum Drinking Age and Alcohol Policy: An Historical Overview and Response to the Renewed Debate in Wisconsin, No. 96-1, Apr. 1996, http://www.law.wisc.edu/rcid/reports/report0496.html. 152 See Sines, supra note 151. 153 Id. 154 Id.; Wechsler & Sands, supra note 148, at 2. 155 See Sines, supra note 151; Wechsler & Sands, supra note 148. 156 Starr, supra note 131. New Jersey State Senator C. Louis Bassano, who sponsored a bill to raise the state’s drinking age back to twenty-one, said that “[s]tatistics have shown us that kids can’t handle alcohol . . . [i]t’s an experiment that has failed.” Id. 157 Richard Douglass, The Legal Drinking Age and Traffic Casualties: A Special Case of Changing Alcohol Availability in a Public Health Context, in MINIMUM-DRINKING-AGE LAWS 94 (Henry Wechsler, ed., 1980).

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triple the statewide rate during the 1970s.158 And the proportion of nighttime road deaths, the

time when people are most likely to be driving drunk, increased from fifty-three percent in 1974

to sixty-two percent in 1981.159

Responding to the increase in alcohol-related fatalities caused by young drivers, sixteen

states raised their drinking ages between 1976 and 1983.160 But the disparity of state minimum

drinking age laws created a patchwork of regulations, and for areas near the borders of states

with differing minimum drinking ages, a phenomenon that became known as “blood borders.”161

“In Wisconsin border communities, the number of 19-year olds from Illinois involved in alcohol-

related crashes increased from 32.8 to 49.0 percent” and the increase among nineteen to twenty

year olds was the largest of any age group.162 After Illinois increased its minimum drinking age

to twenty-one, the number of drunk driving convictions from the roads connecting Wisconsin

and Illinois increased from 154 in 1981 to 728 in 1984.163

The dramatic increase in alcohol-related traffic accidents and the “blood border” issue led

to the Commission report in 1983 that recommended requiring states to increase their minimum

drinking ages to twenty-one as a condition of receiving federal highway construction funds.164

And there was broad national support—a 1983 Gallup poll found that seventy-seven percent of

respondents, including fifty-eight percent of respondents age eighteen to twenty-one, supported a

158 Sines, supra note 151, at n.16 (citing Dennis Hughes & Kam Leung, Wisconsin Dep’t of Transportation, Division of Planning & Budget, Driver Age and Alcohol-Related Accidents in Wisconsin, Apr. 1985). 159 George B. Merry, Is US Making Headway Against Drunk Drivers?, CHRISTIAN SCIENCE

MONITOR, Apr. 4, 1983, at 1. 160 Sines, supra note 151. 161 Id. 162 Id. 163 Howard Witt & Robert Enstad, Wisconsin Jumps on Wagon; Officials Reluctantly Support Shift to 21 Drinking Age, CHI. TRIB., Apr. 10, 1986, at 8C. 164 See discussion at supra note 146.

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uniform national drinking age.165 Congress responded to the overwhelming national support and

the Commission’s recommendation in 1984, setting a national minimum drinking age of twenty-

one and sanctioning states not in compliance with a reduction in highway trust funds.166 The bill

passed both houses by overwhelming margins and was signed into law by President Reagan.167

States were given until October 1, 1986 to comply with the minimum drinking age requirement

before they would start losing a proportion of their federal highway funds.168 Before the bill was

passed, nineteen states had rejected legislation to raise the drinking age.169 But by January 1985,

nineteen states had legislation pending to increase their minimum drinking ages to twenty-one,

leaving just nine states, including Wisconsin, that had not yet taken steps to comply with the

federal law.170 And by April 1983, only four states—Hawaii, Louisiana, Vermont, and

Wisconsin—permitted eighteen year olds to purchase and consume alcohol.171 Wisconsin made

165 Liebschutz, supra note 141, at 43. 166 Id., at 43 167 Id. Only sixteen senators opposed the bill—including fourteen who represented states with a minimum drinking age below twenty-one. Id. President Reagan originally opposed the uniform age, believing it should be left to the states, but reversed his position once the severity of the drunk driving problem became more clear. Stewart Powell; Mary Galligan & Sharon F. Golden, State Drinking Laws Come to Age, U.S. NEWS & WORLD REPORT, June 9, 1986, at 21. Reagan said, “Some may feel that my decision is at odds with my philosophical viewpoint that state problems should involve state solutions . . . [but] in a case like this where the problem is so clear-cut, I have no misgivings about a judicious use of federal inducement to encourage the states to get moving.” Id. 168 See id. 169 Id. 170 Liebschutz, supra note 141, at 44. States with drinking ages below twenty-one and without legislation pending as of January 1985 were: Delaware, Hawaii, Iowa, Louisiana, Maine, North Carolina, Ohio, South Dakota, and Wisconsin. Id. 171 Merry, supra note 159.

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a small step toward compliance in 1984—increasing its drinking age from eighteen to

nineteen.172

By June 1986, only ten states, the District of Columbia, and Puerto Rico, were not in

compliance with the federal minimum drinking age law, including Wisconsin.173 Officials in

Wisconsin, including Governor Tony Earl, Attorney General Bronson LaFollette, and leaders of

both houses of the Democratically-controlled Wisconsin legislature opposed the federal mandate

and vowed to fight the change.174 Faced with the prospect of losing twenty-one million dollars

in federal highway funds, State Senator Walter Chilsen (R-Wausau, WI) said in February 1986

that “chances for passage [were] slim to none [that] session.”175 Indeed, State Senator Joe

Andrea had introduced legislation to raise the drinking age to twenty-one in the state each year

from 1976 to 1986—and each year the legislation “[fell] on deaf ears in Madison, usually being

buried in a legislative committee.”176

But in early April 1986, Governor Earl, Attorney General LaFollette, and the Democratic

leaders of the state legislature changed their positions on the issue, with Governor Earl dropping

his threat to veto legislation to raise the drinking age.177 The change of heart came after the

172 David E. Rosenbaum, New Bid to Curb Drunken Driving, NY TIMES, July 1, 1984, at 17. By January 1985, only Louisiana and Hawaii had not begun any effort to increase their drinking ages from eighteen. Liebschutz, supra note 141, at 44. 173 Powell, Galligan, & Golden, supra note 84. At that time, twenty-eight states were in compliance and thirteen states had provisional twenty-one year old drinking ages. The ten states not yet in compliance were: Colorado, Hawaii, Idaho, Louisiana, Montana, Ohio, South Dakota, Tennessee, Wisconsin, and Wyoming. Id. 174 Witt & Enstad, supra note 163. 175 Wisconsin Not in Favor of 21 Drinking Age, CHI. TRIB., Feb. 11, 1986, at 3C. 176 Robert Enstad, Drinking Issue Comes of Age; Wisconsin May Follow Dollar Sign, Political Football to 21 Standard, CHI. TRIB., May 26, 1986, at 3C. A bill to raise the drinking age “failed to get enough support to get out of committee for a floor vote” in March 1986 in the state assembly. Joseph Hanneman, Higher Wisconsin Drinking Age Nearer, CHI. TRIB., May 29, 1986, at 5C. 177 Witt & Enstad, supra note 163.

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federal government changed the penalty for noncompliance with the federally mandated age

requirement—originally established as the loss of one year of highway funding, the law was

changed to deny states not in compliance with the law the funding every year.178 Senator Andrea

also noted political ramifications as a reason for the change of position—1986 was an election

year and the Republican candidates for governor were threatening to make a campaign issue out

of Earl’s refusal to sign legislation to comply with the federal mandate.179 Governor Earl may

have been cognizant of the 1978 primary election loss of Massachusetts Governor Michael

Dukakis. Though Dukakis would later go on to reclaim his position as governor, he

unexpectedly lost his primary election in 1978 after his opponent, a fellow Democrat,

campaigned against him for twice vetoing legislation to raise the state’s drinking age.180 At the

time of Earl’s flip-flop, polls indicated that fully seventy-two percent of Wisconsin residents

supported increasing the age limit—putting the governor, attorney general, and legislature at

odds with the vast majority of the state’s residents prior to their change of mind.181 Wisconsin

also had become an island—Minnesota, Michigan, Illinois, and Iowa—all of the states that

border Wisconsin—had increased their age to twenty-one.182

At the time, the Wisconsin Tavern League was over fifty years old, and had developed

signification political power in the state, probably growing out of the strongly organized “wet”

presence during Prohibition in the state. The League, which had 6,000 tavern-members at the

time, protested loudly to raising the legal age—its chief lobbyist, James Boullion, said he had

178 Enstad, supra note 176. Governor Earl noted that the state “could have sustained the one-time damage,” but could not forgo the federal highway funding permanently in order to maintain the states nineteen year old drinking age. Id. 179 Id.; Witt & Enstad, supra note 163. 180 James F. Mosher, The History of Youthful-Drinking Laws: Implications for Current Policy, in MINIMUM-DRINKING-AGE LAWS, 11 (Wechsler, Henry, ed., 1980). 181 Enstad, supra note 176. 182 Id.

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spoken with the Governor, the Attorney General, and both legislative leaders the week before

they changed their positions and they had not said anything to him about a change of mind.183 “I

think because it’s a campaign year this is political posturing.”184 In May, the Tavern League

called for a one-day bar strike by its members, which led to nearly 2,000 taverns closing their

doors in the state in protest of the legislation.185 About 3,000 people protested at the state capitol

on May 21, “carrying placards reading ‘Stop 21’ . . . [and leading] a caravan of beer trucks and

buses around the Capitol Square . . . .”186 Boullion argued that raising the drinking age would

actually cost more lives—that people would go from bars into parks and the roadways to

drink.187 “‘We are just absolutely convinced it will cost more lives to go to 21.’”188 And State

Representative Gervase Hephner, speaking to protestors, argued that increasing the drinking age

would lead young people to turn to other drugs.189

During the floor debate, proponents of the change cited statistics and surveys from other

states showing that lives had been saved by the increased minimum age, while opponents argued

fairness and states rights.190 Senator Fred Risser argued that they were “‘making whipping boys

and second-class adults out of a very important segment of society’” and Senator Marvin Roshell

183 Earl Now Favors Higher Drinking Age, CHI. TRIB., Apr. 10, 1986, at 3C. 184 Id. 185 Powell, Galligan, & Golden, supra note 167. The taverns closed on May 21, 1986, and posted signs on their doors saying “Gone to Madison to save our business.” Janet Bass, Tavern League Calls for One-Day Bar Strike, UNITED PRESS INTERNATIONAL, May 2, 1986. 186 Joe Hannman, Wisconsin Drinking Showdown, CHI. TRIB., May 22, 1986, at 16C. Ron McCrea, Governor Earl’s Press Secretary, joked that “it will be interesting to see if more work gets done” as a result of the statewide bar strike. Id. 187 Id. 188 Id. 189 Id. 190 Robert Enstad & Joseph Hanneman, Higher Drinking Age Rejected; Wisconsin Lawmakers Vote Down Compromise Bill, CHI. TRIB., May 25, 1986, at 8C.

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complained that “‘[t]he federal government shouldn’t put a gun to our head.’”191 On May 23rd,

the state assembly rejected a compromise bill that came out of a conference committee after the

assembly and senate had passed separate pieces of legislation.192 The compromise bill, which

had attracted the support of the Governor and the Tavern League, would have “raised the age to

21 [that] year but would allow 18- through 20-year-olds on tavern premises without drinking

rights . . . .”193 The assembly defeated the bill by a vote of fifty-two to forty-five.194 But on May

28th, the assembly reversed course and passed, by a vote of fifty-three to forty-three, a measure to

raise the drinking age to twenty-one.195 The next day the senate followed suit by a vote of

nineteen to fourteen.196 Gil Meisgeier, president of the Tavern League, predicted that state

taverns would lose twenty percent of their business, or $150 million in gross sales, as a result of

the law, and that “‘drunk driving death rates [would] go up. Drinkers will go from bars to

cars.’”197 The relatively close votes in the state legislature stood in stark contrast to the seventy-

seven percent of state residents who supported the change, likely reflecting the influence of

tavern owners and the state Tavern League on legislators. Governor Earl, commenting on the

legislative debate, said that “‘[p]eople in Wisconsin spend a lot of time in neighborhood taverns.

191 Id. 192 Id. The senate bill had raised the drinking age to twenty-one for all types of liquor, while the assembly bill allowed nineteen and twenty year olds to continue to drink beer, but not other forms of liquor. Id. 193 Id. 194 Id. After the bill was rejected, Assembly Speaker Thomas Loftus told the Democratic caucus, “‘Apparently we don’t have the guts to kill it and the vote to pass it.’” Enstad, supra note 176. 195 Joseph Hanneman, Higher Wisconsin Drinking Age Nearer, CHI. TRIB., May 29, 1986, at 5C. The vote prompted state Representative David Clarenbach, a Madison Democrat, to comment that it was “‘a dark day in the state Assembly . . . [this act] in raising the drinking age to 21 is wrong. It is tokenism and scapegoating of the worst sort.’” Id. 196 Joseph Hanneman, Wisconsin Votes to Raise Drinking Age, CHI. TRIB., May 30, 1986, at 1C. 197 Id. Commenting on a provision of the bill that required community service for those convicted of drunk driving, Meisgeier said, “‘I can just see an elderly grandmother being forced to sweep the sidewalks in front of the Catholic church after being arrested for drunken driving.’” Id.

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So obviously legislators want to be well thought of by the people who run those taverns. They

do have influence.’”198

The 1980s saw a dramatic decrease in the number of alcohol-related traffic fatalities—

between 1982 and 1985, a time where publicity about drunk driving was at its peak and the

federal minimum drinking age legislation was passed, deaths fells by eleven percent.199 Indeed,

despite the predictions to the contrary by the Wisconsin Tavern League, alcohol related traffic

accidents fell by thirteen percent during the first six months of 1988 in Wisconsin.200 Nationally,

there has been a dramatic drop in alcohol-related traffic accidents since the mid-1970s. At that

time, over sixty percent of traffic fatalities involved alcohol—in 2001 the number was forty

percent, and even lower, thirty-six percent, among people age sixteen to twenty.201 Alcohol-

related traffic deaths have been cut in half per capita since the 1980s, the National Institutes of

Health estimates that drunk driving regulations have saved 150,000 lives between 1982 and

2001, and that the twenty-one year old minimum drinking age laws effective today in all states

prevent 1,000 traffic deaths per year.202 While Wisconsin eventually joined the other states in

raising its minimum drinking age and in enacting other changes to its drunk driving laws, it still

remains the only state to allow parents to consent to their children being served alcohol at any

age and to not criminalize the first offense of drunk driving, and unlike the majority of states,

198 Robert Enstad, Tavern League Crying in Beer; Lobby the Big Loser in Wisconsin, CHI. TRIB., June 2, 1986, at 3C. Governor Earl also called the debate over the increase in the minimum drinking age the “most difficult and emotional issue to face him in more than three years as governor.” Id. 199 Ray McAllister, The Drunken Driving Crackdown: Is it Working?, 74 A.B.A.J. 52 (1988). In 1986, stories about drunk driving in the national media declined, and drunk driving fatalities rose again that year, prompting speculation that the media campaign, and not the tougher laws passed during the 1980s, was the cause of the drop from 1982 to 1985. Id. 200 Alcohol-Related Accidents Drop 13% in Wisconsin, CHI. TRIB., Sept. 13, 1988, at 3M. 201 National Institutes of Health, Alcohol-Related Traffic Deaths Fact Sheet, www.nih.gov/about/researchresultsforthepublic/AlcoholRelatedTrafficDeaths.pdf. 202 Id.

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Wisconsin does not allow checkpoints, whose constitutionality was affirmed in 1990, and not

until 1999 did it make the fifth offense of drunk driving a felony, while most other states make

the third offense a felony.203 The influence of the Tavern League during the 1980s was strong—

Wisconsin was one of the last states to adopt the twenty-one year old drinking age, and only after

the threat of permanently losing a significant amount of federal transportation dollars. As

Governor Earl noted, the Wisconsin Tavern League had an influential role in making the state

one of the last to comply with the federal law.

IV. The Wisconsin Tavern League Today: Unmatched Influence

A 1998 op-ed by the Milwaukee Journal Sentinel blasted the Wisconsin Tavern League

and the legislature for succumbing to its influence. The Journal Sentinel wrote that the League

“has grown accustomed to getting its way in Madison.”204 The op-ed was in response to a

licensing bill that the League pushed through the legislature that kept the licensing fee for

existing taverns at $500 but set the fee for new taverns at $10,000—which local municipalities

opposed. The move was viewed as a way to protect the interests of current tavern owners and

make it easier for them to sell their establishments to new would-be owners rather than face new

bars.205 The Journal Sentinel concluded by saying: “The Tavern League needs to be told in no

uncertain terms: ‘Look, pal, you’ve had enough. Why don’t we just call you a cab?’”206 The

League, founded in 1935, is the largest of its kind in the country, representing over 5,000

203 See supra Part I; Wisconsin Legislative Reference Bureau, supra note 10; National Conference of State Legislatures, supra note 9. 204 Op-ed, Tavern Lobby Still Isn’t Listening, MILWAUKEE J. SENTINEL, Jan. 18, 1998, at 4. 205 Id. 206 Id.

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businesses.207 Minnesota has a similar lobbying organization—the Minnesota Tavern League—

but it was not founded until 2000, sixty-five years after the Wisconsin Tavern League came into

existence.208 And North Dakota, Wisconsin’s chief rival in alcohol statistics, does not have a

similar lobbying organization for bars and taverns. According to the North Dakota registry of

lobbyists, the only alcohol-oriented lobbying organization in the state is the North Dakota Beer

Wholesalers Association.209 The absence of a tavern league in North Dakota is the greatest

difference between it and Wisconsin, and likely explains why, despite similar drinking problems

and cultural profiles, North Dakota has stricter drunk driving laws. The Wisconsin (and now

Minnesota) Tavern Leagues bring together bars and taverns from across the state, and allow

political activities at the grassroots level as well as a coordinated legislative strategy. And the

Wisconsin organization has had a sixty-five year leg-up on its Minnesota counterpart, making it

all the more powerful. It is not clear why North Dakota taverns have failed to organize—perhaps

the small population or more rural nature of the state makes such an association more difficult or

seemingly unnecessary. It seems likely that the failure of the national Association Against the

Prohibition Amendment in the 1920s and 1930s to organize in more than just Wisconsin and

Massachusetts may provide an historical explanation for why Wisconsin’s League formed and

has grown powerful while other states have lacked such a lobbying organization. The power of

207 Op-ed, Rob Swearingen, President of Wisconsin Tavern League, Tavern League Back Plan to Curb Drunken Driving, POST-CRESCENT (Appleton, Wis.), Aug. 10, 2008, at 4C. 208 The Tavern League of Minnesota, supra note 18. On its website, the Minnesota Tavern League claims credit for affecting legislation in Minnesota. “We are the reason that Minnesota was the last state to enact its laws on .08 blood alcohol content.” Id. And its chief lobbyist was named the “‘most effective professional persuader in the state’” by the Star Tribune newspaper. Tavern League of Minnesota, http://www.tavernleaguemn.org/Testimonials.htm. 209 North Dakota Secretary of State, Registered Lobbyists, http://www.nd.gov/sos/lobbylegislate/lobbying/registered-2010.html.

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such a group is obvious from the early successes that the Minnesota League has had. The group

claims credit for making it the last state to adopt the .08 BAC, which is discussed below.210

As a lobbying organization, the Wisconsin Tavern League is remarkably effective, with a

success rate higher than two state lobbying organizations that spend considerably more money—

the state teachers union and the Wisconsin Manufacturing and Commerce organization.211 The

Journal Sentinel conducted a study in 2008 and found that, for the six prior years, the League’s

position prevailed in sixty percent of the legislative issues on which it took a position—higher

than the success rates of the Wisconsin Education Association Council (fifty-five percent) and

the Wisconsin Manufacturing and Commerce group (forty-seven percent).212 The League has

one paid lobbyist, while the other two organizations each have ten.213 The state’s beer tax has

not been raised since 1969 and is the third lowest nationwide—“[i]n the halls of the Capitol, the

tax is considered untouchable.”214 And a proposal strongly supported by Governor Jim Doyle to

ban smoking at bars and restaurants in the state was defeated in 2008 almost single-handedly by

the League.215 The ban passed the next year, after the Governor appointed the League’s

210 Tavern League of Minnesota, supra note 18. 211 Walters & Daykin, supra note 60. 212 Id. The League achieved such a high success rate despite spending considerably less money than the other two organizations. In six years, the League spent $384,812 on lobbying, while the WMC spent $4.17 million and WEAC spent $3.7 million. Id. 213 Id. 214 Id. When a 1997 proposal to equip the cars of convicted drunk drivers with breath testers that would lock the ignition if the breath registered over the legal limit was scrapped, Senator Robert Wirch of Kenosha said, “‘[t]he fingerprints of the Tavern League are all over it.’” Drunken Driving Proposal Dropped, WIS. STATE J., Sept. 29, 1997, at 3B. 215 Ben Jones, Lobby Group Plays Key Role in State’s Culture of Alcohol, POST-CRESCENT (Appleton, Wis.), July 14, 2008, at 1A. The League organized 1,000 people to come to Madison to successfully lobby legislators to reject the smoking ban legislation, despite polls showing that majority of Wisconsinites favored the ban. After the lobbying event, the League held a reception for government officials. A similar previous reception had one hundred in attendance, including forty-eight members of the legislature. Id.

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strongest legislative supporter to his cabinet.216 The League’s influence throughout the past

decade can be demonstrated through the state’s delayed adoption of a federally mandated

reduction to a .08 BAC from the previous .10 level, the close relationship the organization has

with state legislators, and the lack of support for criminalization of the first offense of DUI.

A. Ghosts of 1986: Wisconsin Resists Federal Mandate to Lower Legal Alcohol Limit

In 1997, the state of Illinois became one of sixteen states to adopt a .08 BAC level for

operating a vehicle—at the time the only Midwestern state with the lowered level.217 In

Wisconsin, a similar bill failed to make it out of the legislature.218 The Tavern League fought the

bill, saying that it targeted “social drinkers” and “would be the ‘death knell for a lot of small

taverns.’”219 That year, a poll conducted by Wisconsin Public Radio and St. Norbert College

found that forty-nine percent of state residents favored lowering the level to .08, while forty-

seven percent opposed lowering the level.220 In the same poll, sixty-four percent of respondents

opposed lower the drinking age from twenty-one to nineteen, while thirty-four percent favored

lowering the age. Remarkably, even those aged eighteen to twenty-four opposed lowering the

legal age, albeit by a smaller fifty-two to forty-four point margin.221 Additionally, fully eighty-

216 See discussion infra, note 238. 217 Dave Umhoefer, Wisconsin Resists Rush to .08% Limit; Redefining Drunk is a Hard Sell North of Cedarburg, MILWAUKEE J. SENTINEL, Sept. 15, 1997, at 1. 218 Id., see Dennis Chaptman, Drunken Driving Bill on Doyle’s Desk; Assembly Passes Lower Blood-Alcohol Standard, MILWAUKEE J. SENTINEL, July 3, 2003, at 3B (reporting that .08 BAC bill did not pass legislature until six years later—2003). 219 Umhoefer, supra note 217. 220 Richard P. Jones, Residents Split on Drunken Driving Laws; 49% in Survey Favor Effort to Lower Blood-Alcohol Limit to .08%, MILWAUKEE J. SENTINEL, Oct. 29, 1997, at 1. 221 Id. The Tavern League pushed for the state to lower its drinking age to nineteen in the 1990s, even testifying before Congress that Wisconsin should be allowed an exemption for the federal requirement. “Like prohibition, the 21 year old drinking age is a failed experiment. We strongly urge the committee to adopt language which would either grant Wisconsin a federal waiver from losing highway funds or commission an independent study of the effects the 21 year old drinking

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two percent of respondents said that Wisconsin had a “serious” drinking problem, with thirty-

nine percent calling it a “very serious” problem.222 While the public was largely split over the

issue of reducing the legal limit, there was a bare plurality in favor of a reduction in 1997. But

due in part to the Tavern League’s influence, the measure was dead until 2003.

By April 2002, thirty-two states had complied with a new federal requirement that

mandated states to reduce their legal limit to .08—or risk losing millions of dollars of federal

transportation funding.223 At the time, the state Department of Transportation estimated that

Wisconsin would lose roughly $125 million of transportation dollars over five years if it did not

adopt the .08 level.224 The situation was remarkably reminiscent of the 1980s fight over

compliance with the mandatory minimum drinking age. The Executive Director of a government

watch group in Wisconsin said that the legislature was dragging its heels because of the

politically powerful Tavern League. “‘The people who profit from the sale of alcoholic

beverages in Wisconsin are big, big campaign donors. They are some of the biggest campaign

donors in Wisconsin.’”225

By May 2003, thirty-nine states had adopted the law, which had a 2004 deadline.226 By

July, the number jumped to forty-two.227 The Tavern League strongly resisted the push in

age has had in Wisconsin.” Scott Stenger, Wisconsin Tavern League Director of Governmental Affairs, Testimony before House Subcommittee on Surface Transportation, Mar. 31, 1994, Washington, D.C.; see also Steve Mills & Patricia Tennison, Wisconsin Could Put its 21-Drinking Age on the Rocks, CHI. TRIB., Apr. 30, 1995, at Metro 1. 222 Jones, supra note 220. Despite this, only twenty-eight percent thought the problem in Wisconsin was more serious than that of others states. Id. 223 Amy Rinard, Battle Goes on About Drunken Driving Level, MILWAUKEE J. SENTINEL, Apr. 28, 2002, at 2Z. 224 Id. 225 Id. 226 Andy Nelesen, Millions at Stake in Drinking Debate, PRESS-GAZETTE (Green Bay, Wis)., May 20, 2003, at 1A. At the time, the president of the Brown County Tavern League complained that lowering the limit would reduce sales because people would be afraid that a few glasses of wine or beer would cause them to be stopped if the limit were lowered. Id.

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Wisconsin, one of only eight states to have the .10 level. They called it “blackmail” and said the

law should only be changed on the merits, not for federal transportation dollars.228 And they said

the reduction would “‘criminalize responsible social drinking’” despite reports by the National

Highway Traffic Safety Administration showing that “‘virtually everyone’” is impaired at the .08

level.229 And the League warned that the move was simply an attempt to get rid of drinking

altogether. “‘This is one step in a long journey that aims to make drinking socially unacceptable

. . . The move to 0.08 isn’t going to bankrupt the hospitality industry overnight, but it is going to

send a message the next debate is going to be 0.06.”’230

As in 1986, the threat of the loss of significant amounts of federal transportation funds

led the state legislature to finally acquiesce to the federal mandate—in July 2003 Wisconsin

became the forty-third state to adopt the .08 BAC limit, after six years of pressure from the

Tavern League to defeat the proposal.231 The measure passed by a large margin in both houses

of the legislature, demonstrating the power of the Tavern League in preventing it from coming to

a vote despite its support among members of the legislature.232 The Wisconsin Democracy

Campaign noted that the Tavern League had given the largest amount of donations to state

Senator Roger Breske, a former president of the Tavern League himself, and the chair of the

227 Chaptman, supra note 218. 228 Craig Reber, Wisconsin Mulls Lower Alcohol Level; Drunken Driving: State Could Lose $36.4 Million if it Keeps 0.10 Limit, TELEGRAPH HERALD (Dubuque, Ia.), Apr. 26, 2003, at A3. 229 Craig Gilbert, Battle Heats up for U.S. Limit for Drunken Driving; Plan to Pressure States to Adopt 0.08 Not Likely to Gain Wisconsin’s Support, MILWAUKEE J. SENTINEL, Jan. 19, 1998, at 1. 230 Dennis Chaptman, Drunken Driving Bill OK’d; Senate Approves Lowering Blood-Alcohol Threshold; Assembly Set to Vote on Measure Today, MILWAUKEE J. SENTINEL, July 2, 2003, at 1A. 231 Chaptman, supra note 218. Despite the long delay, the measure passed by a large margin—the senate vote twenty-two to eleven in favor, while the assembly voted sixty-nine to eighteen. Id.; Chaptman, supra note 230. 232 See supra note.

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Senate Insurance, Tourism, and Transportation Committee, which oversaw many alcohol-related

issues.233

B. Tavern League’s Relationship With Legislature

“‘We have a voice and we’re proud of that voice . . . Fortunately, a lot of legislators are

paying attention.’”234 According to the Wisconsin Democracy Campaign, 118 of the states 132

legislators received campaign contributions from people associated with the state’s alcohol

industry, making the organization’s influence bipartisan.235 The relationship the League has

forged with legislators is reminiscent of that of the previous interest groups examined in this

paper—the Sons of Temperance, the Anti-Saloon League, and The Wisconsin Anti-Prohibition

Association. Like those organizations, the Tavern League draws its power from its popular

connection. The president of the Racine County Tavern League noted that members “‘talk to

voters every day[;] . . . [i]t’s unfiltered.”236 In October 2008, referring to the November election,

the League’s chief lobbyist said “‘Most every voter will walk through the door of a [League]

member establishment between now and the election . . . This presents an excellent opportunity

to inform your patrons . . . on which candidates are supportive of the hospitality industry.”’237

One of the strongest supporters of the League was former state Senator Roger Breske, a

former Tavern League president, whom Governor Doyle appointed to the position of state

Railroad Commissioner in 2008.238 Breske sponsored legislation in 2007 to allow taverns to

233 Lawrence Sussman & Amy Rinard, Lower Blood-Alcohol Standard Still Resisted; Nearby States Say Move Saves Lives, MILWAUKEE J. SENTINEL, Feb. 1, 2002, at 1A. 234 Jones, supra note 215 (quoting the Rob Swearingen, president of the Tavern League). 235 Id. 236 Walters & Daykin, supra note 211. 237 Id. 238 Op-Ed, Politics or Not, Breske Move Good for Us, DAILY HERALD (Wausau, Wis.), June 3, 2008, at 8. The paper suggested that Governor Doyle appointed Breske to the position to remove

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remain open an additional hour on the day that Daylight Savings Time takes effect.239 The bill

passed in nine days on a unanimous voice vote.240 According to a colleague, “‘[w]hen the

[League] needed something, they went to Roger . . . When they needed something killed, they

went to Roger.’”241

In addition to its close relationship with the Tavern League, many legislators and

government official in Wisconsin have found themselves in trouble for drunk driving

themselves, which might lead some to wonder if they take a “there but for the grace of God go I”

view to proposals to strengthen the state’s drunk driving laws. Breske was arrested in 1996 with

a blood-alcohol content of .27 percent—nearly three times the legal limit of .10 at the time, and

over three times the current legal limit.242 When given a field sobriety test and asked to recite

the alphabet, Breske replied “‘Don’t know it, for I haven’t said it in a long time.’”243 Breske is

not alone in his public embarrassment—current state Senate Majority Leader Russ Decker was

arrested in 2005 for drunk driving after returning from a reception sponsored by the Tavern

him from the legislature to prevent him from further blocking a statewide smoking ban that Doyle supported. Id. Indeed, the statewide smoking ban was passed by the legislature and signed into law in 2009, after Breske was no longer serving in the state senate. Stacy Forster, Patrick Marley & Steve Walters, Assembly, Senate Pass Indoor Smoking Ban, MILWAUKEE J. SENTINEL, May 13, 2009, http://www.jsonline.com/news/statepolitics/44913802.html. 239 Walter & Daykin, supra note 211. 240 Id. 241 Id. The article notes that, “[w]ith Breske gone, key legislators say the Tavern League will be weakened . . . .” Id. When Congress passed the requirement that states lower their legal limit to .08, Breske said, “‘I have no intention to caving in to Washington’s demands . . . If Senator Lautenberg and Congressman Wolf want to address drunk driving in Wisconsin, I invite them to come here and run for my seat.’” Steven A. Holmes, House and Senate Agree on Drunken-Driving Law, N.Y. TIMES, Oct. 4, 2000. 242 Senator’s Drinking 3 Times Legal Limit, WIS. STATE J., Jan. 18, 1996, at 3B. 243 Cary Spivak & Dan Bice, Questions Raised About Officer’s Acquaintance with Criminal, MILWAUKEE J. SENTINEL, June 29, 2000, at 2A.

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League.244 Other legislators and government officials arrested for drunk driving since 1990

include state Rep. Jeff Wood (third offense in lifetime),245 state Rep. Lorraine Seratti, state Sen.

Mike Ellis, former U.S. Sen. Bob Kasten, former state Attorney General Peg Lautenschlager,

former state Rep. David Plombon, former state Rep. Thomas Springer, former Congressman

Jerry Kleczka, and perhaps most ironically, former state Transportation Safety Director John

Evans.246

Given the number of state officials that have been arrested for drunk driving, one might

conclude that the legislature has failed to make the first offense of drunk driving a crime out of

fear of criminalizing their friends—the 1993 Wisconsin Opinion Research poll did find that

those who knew someone who had been arrested for drunk driving were more likely to favor less

strict enforcement mechanisms.247 But eleven Minnesota legislators, including the Senate

President, have been convicted of drunk driving since 1974, and that did not prevent that state

from making the first offense a misdemeanor after Justice Blackmun mentioned the state in his

244 Jake Rigdon, Decker Holds Event at Tavern, DAILY HERALD (Wausau, Wis.), Apr. 5, 2005, at 3A. Decker held a fundraiser at a tavern less than a week after being arrested for drunk driving. Id. The Milwaukee Journal Sentinel notes that Decker has blocked legislation to stiffen penalties for drunk driving, and questioned whether Decker’s own DUI may influence his beliefs. O. Ricardo Pimentel, The Need to Lead on OWI Reform; Senate Majority Leader Russ Decker is Emerging as Key Stumbling Block to Reforming Drunken Driving Laws, MILWAUKEE J. SENTINEL, Jan. 11, 2009, at J3. 245 Patrick Marley, Rep. Wood Charged with 3rd Offense OWI, MILWAUKEE J. SENTINEL, Jan 13, 2009. Video of Rep. Wood’s arrest is available at http://www.youtube.com/watch?v=CPyJcym9JIQ. 246 List of Officials’ Traffic Offenses Since 1990, MILWAUKEE J. SENTINEL, Mar. 10, 1996, at 5; Kate McGinty, 0.17 Behind the Wheel, POST-CRESCENT (Appleton, Wis.), July 28, 2008, at 1A. After Sen. Kasten’s arrest in 1986, consumer advocate Ralph Nader said that the Senator was a “‘chronic drunk . . . He is a man who has severe problems. He needs help and rehabilitation rather than reelection.’” Maralee Schwartz, Nader Joins Fray with Jab at Kasten in Wisconsin Race, WASH. POST, Oct. 28, 1986, at A6. 247 See supra note 45.

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critique of lax drunk driving laws.248 The most unique factor for Wisconsin is the unmatched

size and power of the state Tavern League.

C. First Offense Criminalization Unlikely Soon

In early 2009, state senate majority Democrats endorsed a proposal to strengthen

Wisconsin’s drunk driving laws—but primarily for repeat offenders.249 The proposal includes

making the fourth offense a felony, making the third offense a felony if occurring within five

years of a previous offense, and installing breath-testing ignition interlocks on the vehicles of

second-time offenders whose BACs were twice the legal limit or higher.250 Absent from the plan

are sobriety checkpoints and misdemeanor status for first-time offenders. Governor Jim Doyle

favors criminalizing the first offense,251 but Senate Majority Leader Decker is adamantly

opposed to criminalization.252 Current state Attorney General J.B. Van Hollen, a Republican

who succeeded Democrat Peg Lautenschlager who herself has been arrested for drunk driving, is

also opposed to criminalizing the first offense.253 In an interview with the Milwaukee Journal

Sentinel, Van Hollen said that “‘[t]here are a great number of people—people I know

personally—who have first offenses . . . I don’t consider them criminals, and I wouldn’t want

248 Rachel E. Stassen-Berger, Their Peers Forgive, But DWIs Haunt Lawmakers, PIONEER PRESS (St. Paul, Minn.), May 27, 2007. 249 Op-ed, Crack Down on Drunken Drivers; A Plan by Senate Democrats is a Breakthrough, but it Still Leaves Room for Improvement, WIS. STATE J., Jan. 31, 2009, at A10. 250 Id. 251 Gina Barton & Steven Walters, Wasted in Wisconsin; There’s Little Will to Change Law; Criminalizing First-Offense Drunken Driving Would Face Steep Political, Cultural Hurdles, MILWAUKEE J. SENTINEL, Oct. 26, 2008, at A1. 252 Steven Elbow, Drunken-Driving Laws on Tap; Momentum Building in the Statehouse to Get Inebriated Drivers off the Road, CAPITAL TIMES (Madison, Wis.), Jan. 21, 2009, at 14. 253 Steven Walters, AG Says Drunk Driving Once No Crime; Van Hollen Opposes Law Change for First Offense, MILWAUKEE J. SENTINEL, Jan. 17, 2009, at B1.

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them to be tagged that way for the rest of their lives for having made what can legitimately be

called a mistake.’”254

In 1997, two legislators introduced a bill to criminalize the first offense, but the

legislation did not make it out of the committee.255 And in 2002, after a woman lost her daughter

to a second-time offender, there was some rumbling for making the first offense a crime, but the

idea did not even make it to draft legislation.256 In 1989, when Milwaukee County Circuit Judge

Charles Schudson issued a plan recommending the criminalization of the first offense of drunk

driving, he was unable to find a single legislator to sponsor it.257 Given Decker’s lack of support

for criminalization, the opposition of Van Hollen, and the strength of the Tavern League, it

seems unlikely that Wisconsin will see first offense criminalization in the near future.

Conclusion

It has been twenty-five years since Justice Blackmun scolded Wisconsin for its lax drunk

driving laws—and now it is the only state that does not criminalize the first offense of drunk

driving. It is the only state that allows minors to be served alcohol with the consent of their

parents. And the state tops nearly every metric for drinking—and more dangerously, for

drinking and driving. This paper aims to demonstrate in part the risk of relying too strongly on

“culture” to explain the legal history of Wisconsin’s alcohol laws. Many argue that the state’s

German heritage is responsible for the drinking culture. This, or some version of this, may be

true. But other states like North Dakota have as much German culture, and rank near Wisconsin

254 Id. Van Hollen also noted that he does not support sobriety checkpoints and thinks interlock devices are ineffective. Id. 255 Barton & Walters, supra note 251. 256 E-mail from Nina Emerson, Director, University of Wisconsin Resource Center on Impaired Driving to author (Mar. 6, 2009, at 15:21 PST) (on file with author). 257 Barton & Walters, supra note 251.

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in terms of alcohol consumption, and those states criminalize the first offense of drunk driving.

The main difference between Wisconsin and other states is the power and influence of the state

Tavern League. One might suggest that though that the Tavern League exists precisely because

of the strong German heritage. That could be true—but such a suggestion would leave

unexplained why similarly German states lack such an organization, or why Minnesota did not

see one formed until 2000—sixty-five years after Wisconsin’s group formed. Geography may

play a role—North Dakota, for example, is sparsely populated and simply has fewer taverns.

Further, alcohol consumption may be more of a social activity in Wisconsin, thus explaining why

there are so many taverns, with less of the drinking happening in homes.

Despite this culture, polls have shown statewide support for stricter alcohol laws. And

when such measures do finally pass the state legislature, such as the switch to the .08 BAC, they

have done so by wide margins. These facts suggest that culture alone cannot explain the legal

history of alcohol laws in Wisconsin and the presently lax nature of the state’s laws, particularly

its first time offender DUI law. Indeed, the influence and power of the Wisconsin Tavern

League is a likelier explanation. While the Tavern League likely grew out of the state’s

successful anti-Prohibition lobbying, the time lapse since then and the changing attitudes

reflected in polling indicate that it is the very fact that the Tavern League is so solidly organized

that feeds its power, and not as much the culture of the state anymore.

Other organizations might look to the Wisconsin Tavern League for lessons from its

success. The League, particularly compared to the other well known state lobbying

organizations, the Wisconsin Education Association Council and Wisconsin Manufacturers and

Commerce—both of which spend significantly more money lobbying and have large staffs

compared to the one Tavern League lobbyist—is a remarkable demonstration of successful state

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lobbying. Of course, many of the reasons for its success are unique to its nature—it represents

taverns in a state renowned for drinking—and that social experience cuts across partisan lines.

As an organization, it is both disperse and centralized—each of its individual tavern members

function to communicate with residents across the state, allowing for pressure to be placed on all

members of the legislature, particularly since the organization is present in every district. But

with just one paid lobbyist, the organization can be remarkably centralized and controlled in its

strategy and message. In the end, its model is probably not easily replicated by other issue

organizations. And the broader lesson is that lobbying organizations can, at some point, create

their own power by the very fact of their continued existence. While public attitudes may shift, a

powerful lobby can maintain influence if it is historically powerful and well-connected.

Wisconsin has a rich history of alcohol laws, activism, agitation, and involvement of

powerful interest groups. The Tavern League draws on the past histories and successes of the

Sons of Temperance, the Anti-Saloon League, and the Wisconsin Anti-Prohibition Association

in finding a successful formula to ensure that its agenda is enacted. The reasons for Wisconsin’s

drinking problem and its lax drunk driving laws are intertwined—without the German culture,

there would not be as many taverns, and without as many taverns, there would not be as strong a

Tavern League. But when the legislation is being considered today, it is the power of the Tavern

League more than any historical immigration factor that likely explains the failure of the state to

pass tougher laws.