Capitol Update
by Senator Howard Marklein
April 24, 2020


COVID-19 Update

I agree with Governor Tony Evers and President Donald Trump that we need to take a deliberate, measured approach to re-opening our state for business as soon as possible. Gov. Evers has referred to “turning a dial” rather than “flipping a switch” and I agree.
While we agree on the need for a thoughtful, planned approach to re-opening Wisconsin, we disagree on whether an un-elected, unaccountable agency bureaucrat can issue Executive Orders to indefinitely shut down our state without input from the legislature. Elected officials must have a role in this ongoing discussion to represent the people and communities we serve.  This is the intent and position of the legislature’s lawsuit that is currently pending in the Wisconsin Supreme Court.
The lawsuit is based on two arguments: a) separation of powers and b) that Department of Health Services Secretary-Designee Andrea Palm did not use the appropriate rules process to execute the Safer At Home order. There are existing legislative processes she should have followed that would have allowed us to participate on your behalf. This is a foundational concept of the separation of powers and the checks and balances of our government.
As you know, the Governor’s Administration has been issuing executive orders and making decisions without discussing anything with the elected officials who represent you. Most of their decisions are being made by unaccountable, un-elected bureaucrats. The most recent “Safer At Home” extension to May 26, 2020 is a prime example to illustrate my concerns and I am worried about the effects that this unrealistic expectation is having on the communities I represent.  I am very worried about the people I serve.
By all available data, Wisconsin is flattening the curve. We need to begin to think about re-opening.
In fact, my team and I have been analyzing the data related to testing, cases, infections, deaths and more for weeks. If we focus on the seven day rolling average of the percentage of positive tests compared to total tests, Wisconsin is relatively flat (Table 1). As we expand testing capabilities, of course the absolute number of cases will increase, but it is important to look at this number as a percentage of total tests administered.
As the state continues to discuss re-opening, I want to make it clear that I do not want to put anyone’s life at risk. I am 65. I have diabetes. I would be considered “at risk.” I am taking precautions to protect my health, much like I always have.  I wash my hands frequently, wash surfaces I touch and use hand sanitizer. I move away from people who appear to be ill. I stay home when I am sick and try to maintain a healthy lifestyle.
I have heard from some constituents who tell me that we shouldn’t re-open Wisconsin until we are “safe.”  What is “safe?”  How do we define “safe”?  I want everyone to be safe and healthy. But I am realistic. Our government will not be able to declare you “safe” or guarantee that you will not be exposed to COVID-19, or any other virus, for that matter. No matter when we reopen Wisconsin, there is always going to be a chance of exposure. We cannot eradicate this.
Some people define “safe” as a complete absence of risk.  Others define “safe” as when we have a vaccine. Neither of these scenarios are within sight. We aren’t even close. So, what do we do?
For the foreseeable future, we will need to take precautions to protect our own health and create new habits in our society. We’ll need to responsibly limit the sizes of gatherings. We’ll need to encourage businesses to take precautions. If you are at high risk, you will need to determine what you are comfortable with. Maybe you will wear a mask, order groceries for delivery and avoid gatherings of other people. That is your choice.
But there are many people in Wisconsin, business owners, farmers, and employees, who are weighing the risk of losing everything against the risk of an illness that may – or may not – infect them and those around them. They are looking at the numbers of cases and infection rates and comparing them to the fact that they may have to close a family business that they have toiled on for decades.
The Governor recently released the “Badger Bounce-back” plan. I am pleased that he has finally recognized that we need a plan to re-open. Unfortunately, he has said it is just like the Federal plan.  But it is not.  In fact, one of the most concerning elements is that in order for us to move into Phase 1, 2 and 3 of re-opening our state, we have to achieve nearly impossible criteria.  According to the Governor, there is no timeline. Phase 1 is nowhere in sight.
We move through the Phases of re-opening by measuring the “trajectory” of specific data.  Unfortunately, the Governor’s definition and application “trajectory” of data is flawed. I understand “trajectory” to be a change over time. It is a measurement of a trend.  The Governor, however, has said that he is measuring trajectory as a day-to-day change in count. So, if Wisconsin’s “counts” go up at all – we start all over in measuring our trajectory according to the Governor’s interpretation. I believe this is the wrong way to measure trajectory.  But it could make a huge difference in when the state meets the gating criteria to move through phases of re-opening. As we expand testing, it is natural for the absolute count of positive cases to go up. Under the Governor’s plan, will we be under a “Safer at Home” order forever?
The Federal government’s recommendation to states, also known as the Opening Up America plan, has three Phases for re-opening society. Each Phase has Gating Criteria to move into the phase.  In the Federal plan, the Gating Criteria to get into Phase 1 includes 1) a downward trajectory of influenza-like illnesses reported within a 14 day period; and 2) a downward trajectory of COVID-19-like syndromic cases reported within a 14 day period; and 3) a downward trajectory of documented COVID-19 cases within a 14 day period OR a downward trajectory of positive tests in a 14 day period; and 4) all patients can be treated without “crisis care”; and 4) the state has a robust testing program in place for at-risk healthcare workers (including emerging anti-body testing).
In addition to the application of the word “trajectory” Gov. Evers’ plan differs from the Federal plan because it also requires that there is a decreasing number of infected healthcare workers. This is a problem because we have not been testing healthcare workers unless they required hospitalization. So any data on this will be radically high almost instantly.
In his plan, the Governor also created new goals to test 85,000 people per week (which is nearly 400% increase over current testing), hiring 1000 new Contract Tracing staff to tell people to self-quarantine if they have been near someone who tests positive and radically expanding testing availability and criteria.  While I agree that these are all good goals, we should be pursuing these goals in tandem with plans to re-open.
As we look to “turn the dial” on re-opening, I will continue to analyze the data. I will continue to balance public safety with the economic realities of the situation. I will continue to listen to you and the communities I represent to make balanced, thoughtful decisions.
As always, please do not hesitate to connect with me to provide input, ideas or to seek assistance.  My team is working remotely but continues to be available to serve you. Send an email to sen.marklein@legis.wisconsin.gov or call 608-266-0703. Leave a message and a member of my team will follow-up with you.