The Wisconsin Institute for Law & Liberty (WILL) is a nonprofit organization which for the last decade has been protecting the constitutional freedoms of parents, teachers, small business owners, and a host of other private citizens by influencing public policy and through litigation. Along the way, the Milwaukee-based organization has racked up an impressive 75 percent win record in courtrooms. Deputy Counsel Luke Berg recently sat down with the Stand Together Trust, a supporter of WILL, to discuss the bizarre case of regulatory overreach into backyard swimming pools and other work.
Stand Together Trust: Tell us a little bit about WILL and when it was founded.
Luke Berg: We were founded in 2011. We have two halves — we do both litigation and policy work. And we have been growing rapidly recently. We currently have eight litigating attorneys and seven staff on the policy side.
STT: What has been fueling your growth?
LB: Interest in the work that we’re doing. We’ve been involved in a lot of what’s happening in the world and that has really fueled our growth.
STT: It seems like you’ve accumulated quite a track record in the last 10 years.
LB: Yeah, we’ve been very effective. We’ve had many wins at the Wisconsin Supreme Court and some big national wins recently as well. We’ve set multiple important precedents in the state and in the Midwest.
STT: What have you done nationally?
LB: We brought two big equal-protection cases against the Biden administration recently. One involved the Restaurant Revitalization Fund, a large fund for restaurants impacted by the pandemic. Anyone could apply, but if you were white, you were moved 21 days back in the line — and it was a limited pot of funds available on a first come, first serve basis. So that structure essentially meant you would get no money whatsoever if you were white. We brought a challenge in Tennessee and ended up winning the case nationally. There was a similar program in the same bill that provides loan relief to farmers — but again, only if you’re not white. We challenged that as well and got the first temporary injunction against that.
STT: Let’s talk about Swimply. This is the company launched in New Jersey in 2018 that has gone nationwide, and that, like Airbnb, lets you rent out your personal swimming pool to others. Wisconsin is the first state to challenge that.
LB: I believe Wisconsin was the first state where regulators tried to shut them down. And they fought back.
STT: What was the state’s rationale?
LB: Wisconsin has a licensing regime for public pools, typically for large commercial pools — pools at hotels, motels, water parks, that sort of thing. The department that licenses and regulates these pools took the position that as soon as a pool is rented, it becomes a public pool that must get a license. But to get a license you have to meet the commercial pool code which of course, no pool at a home can or does. So it effectively meant it was impossible to rent your pool on Swimply. A regulatory Catch 22.
STT: So what was the first thing you did?
LB: We started with a letter. That’s usually how we start. We explained to the department that their interpretation is illegal, for a number of reasons, and asked it to change its view. And it did. It’s always nice to get a quick win like that. The department in response agreed that their regulation doesn’t actually cover pools rented on Swimply and so they don’t need a license.
STT: In this case, it was a quick win, but in some cases it’s really not.
LB: So it was sort of a partial win — a win for Swimply. 100 percent. So it’s over pretty much with respect to them. After we had engaged Swimply as a client, we publicized the case and others reached out to us with similar problems. Some Airbnb owners reached out to us and said, “Hey, I’m having the same problem. I can’t get a license for my Airbnb. I can’t get a pool license and so I’m being told I can’t let my guests use the pool.” And so we followed up after we heard back with respect to Swimply and said, “Hey, we’ve engaged these other clients. We think the same applies to them as well.” And the department doubled down with respect to Airbnbs. So the position that they’re taking currently is if you rent your pool on Swimply, you don’t need a license. But if you’re an Airbnb with a pool, you do need a public pool license and that’s still not possible. We’re working on a legislative fix or regulatory fix.
STT: What is what does that look like?
LB: We’re engaged with the department itself, encouraging them to make a regulatory change and to waive certain requirements for Airbnbs while they make changes to their regulations. I don’t know if that will happen or not, but we’re trying. There’s also a separate process by which the legislature can suspend the rule and we are going down that route as well.
STT: It sounds like the department has some strange thinking. I mean, it’s the same water, it’s the same chemicals. It’s just a different arrangement.
LB: Yeah, it makes no sense whatsoever in terms of safety. If a homeowner rents their pool on Swimply versus attached to an Airbnb, there’s no practical difference. I think what drives bureaucrats often is their charge, whatever it is. And so they think, “Well, we’ve got to impose all of these requirements on pools to keep people absolutely safe no matter what.” But they don’t think about the counter considerations, which is this fantastic new business model that opens up vacations. Obviously if homeowners can have a pool and safely use it, people who rent the home can safely use it.
STT: Is there something in particular about Wisconsin that led it to be the first to say, “Hey, this isn’t cool.” Is there something in particular about the policies and the demographics of your state that lend themselves more to this kind of overregulation?
LB: I think it was just a matter of the Swimply app coming to the attention of whichever person in the department regulates these things who decided, “we need to shut this down” without really thinking about it. Our letter called attention to the issue with the top regulators and they fortunately backed down with respect to Swimply. But they dug in their heels with respect to Airbnbs. I’m still hopeful we can persuade them to change course.
STT: What principles of freedom are really underlying both of these cases?
LB: There shouldn’t be regulation until there’s a clear market failure. Unless there is compelling need, let the market solve the problem. That is especially true nowadays with ready access to information on the Internet. So if a Swimply owner has a nasty, unsafe pool, there’ll be a one-star review on Swimply and nobody’s going to rent it again. We don’t need a government agency stepping in with all sorts of strict requirements to protect people from themselves. I can understand why we want to have some minimal requirements for a water park pool — totally get that. But when it comes to a house pool that your family is using, I just don’t understand why government needs to be involved.
STT: Do you think there is still enough moral and public will to combat these overreaching agencies? What do you see happening in Wisconsin over the next two years? What do you see happening nationwide?
LB: It does really feel like the pandemic has unleashed the petty tyrants in lots of people around the country, and it seems like the left has really rushed to embrace authoritarianism and control and exerting authority over all aspects of life. And that’s really troubling. We’re seeing that in the states. I think you’re right that when that is happening from the top, it emboldens local officials to go that route as well.
We are currently litigating another case against Dane County, where the Wisconsin capital is located. The health department here for two years now has been asserting the authority to issue any manner of restrictions it wants on Dane County for as long as it wants. And so we are litigating whether local health officials have that power or not. We have seen this happen all over the state and all over the country, and it feels very dark right now.
But I feel like I see people on both sides of the aisle waking up to what’s happening and wanting an end to it. I live in Dane County, it’s a very left-leaning county and yet more and more people who might even traditionally be left-leaning are fed up with the authoritarian measures. We’ve seen little wins in a couple of county board elections here. We’ve seen people running for school board. We’ve seen attempts to recall, right? So I just think people around the country are waking up to the dangers of authoritarianism and are pushing back.
STT: Do you think this will happen through the ballot box? Or will the pushback be a multi-pronged effort where there’s a lot of litigation like what you’re doing, the policy work that WILL is engaged in?
LB: It’s all of the above. Litigation is a hammer, not everything’s a nail. There are lots of situations where litigation can effectively push back against this, but there’s other situations where it can’t. One of the real values of WILL is that we have both the policy side and the litigation side, and we’re constantly having discussions internally. Is this a litigation angle, or is this the policy angle? Sometimes it’s one, sometimes it’s both. There is a lot of overlap and interplay between the two, and it just depends on what you’re fighting.